Securing the Border, 48710-48772 [2024-12435]
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Federal Register / Vol. 89, No. 111 / Friday, June 7, 2024 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 208 and 235
[USCIS Docket No. USCIS–2024–0006]
RIN 1615–AC92
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Part 1208
[A.G. Order No. 5943–2024]
RIN 1125–AB32
Securing the Border
U.S. Citizenship and
Immigration Services (‘‘USCIS’’),
Department of Homeland Security
(‘‘DHS’’); Executive Office for
Immigration Review (‘‘EOIR’’),
Department of Justice (‘‘DOJ’’).
ACTION: Interim final rule (‘‘IFR’’) with
request for comments.
AGENCY:
On June 3, 2024, the President
signed a Proclamation under sections
212(f) and 215(a) of the Immigration and
Nationality Act (‘‘INA’’), finding that the
entry into the United States of certain
noncitizens during emergency border
circumstances would be detrimental to
the interests of the United States, and
suspending and limiting the entry of
those noncitizens. The Proclamation
directed DHS and DOJ to promptly
consider issuing regulations addressing
the circumstances at the southern
border, including any warranted
limitations and conditions on asylum
eligibility. The Departments are now
issuing this IFR.
DATES:
Effective date: This IFR is effective at
12:01 a.m. eastern daylight time on June
5, 2024.
Submission of public comments:
Comments must be submitted on or
before July 8, 2024.
The electronic Federal Docket
Management System will accept
comments prior to midnight eastern
time at the end of that day.
ADDRESSES: You may submit comments
on this IFR, identified by USCIS Docket
No. USCIS–2024–0006, through the
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
website instructions for submitting
comments.
Comments submitted in a manner
other than the one listed above,
including emails or letters sent to the
Departments’ officials, will not be
considered comments on the IFR and
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SUMMARY:
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may not receive a response from the
Departments. Please note that the
Departments cannot accept any
comments that are hand-delivered or
couriered. In addition, the Departments
cannot accept comments contained on
any form of digital media storage
devices, such as CDs/DVDs and USB
drives. The Departments are not
accepting mailed comments at this time.
If you cannot submit your comment by
using https://www.regulations.gov,
please contact the Regulatory
Coordination Division, Office of Policy
and Strategy, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, by telephone at
(240) 721–3000 for alternate
instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Acting
Deputy Assistant Secretary for
Immigration Policy, Office of Strategy,
Policy, and Plans, U.S. Department of
Homeland Security; telephone (202)
447–3459 (not a toll-free call).
For the Executive Office for
Immigration Review: 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:
Table of Contents
I. Public Participation
II. Executive Summary
A. Background and Purpose
B. Legal Authority
C. Summary of Provisions of the IFR
III. Discussion of the IFR
A. Current Framework
1. Asylum, Statutory Withholding of
Removal, and CAT Protection
2. Expedited Removal and Screenings in
the Credible Fear Process
3. Lawful Pathways Condition on Asylum
Eligibility
B. Justification
1. Global Migration at Record Levels
2. Need for These Measures
3. Description of the Rule and Explanation
of Regulatory Changes
C. Section-by-Section Description of
Amendments
1. 8 CFR 208.13 and 1208.13
2. 8 CFR 208.35
3. 8 CFR 1208.35
4. 8 CFR 235.15
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Foreign Affairs
2. Good Cause
B. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and Executive Order
14094 (Modernizing Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
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F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice
Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and
Coordination With Indian Tribal
Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
List of Abbreviations
AO Asylum Officer
APA Administrative Procedure Act
BIA Board of Immigration Appeals (DOJ,
EOIR)
CAT Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment
CBP U.S. Customs and Border Protection
CBP One app CBP One mobile application
CDC Centers for Disease Control and
Prevention
CHNV Cuba, Haiti, Nicaragua, and
Venezuela
DHS Department of Homeland Security
DOD Department of Defense
DOJ Department of Justice
EOIR Executive Office for Immigration
Review
FARRA Foreign Affairs Reform and
Restructuring Act of 1998
FRP Family Reunification Parole
FY Fiscal Year
HSA Homeland Security Act of 2002
ICE U.S. Immigration and Customs
Enforcement
IFR Interim Final Rule
IIRIRA Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
IJ Immigration Judge
INA or the Act Immigration and Nationality
Act
INS Immigration and Naturalization Service
MPP Migrant Protection Protocols
NGO Non-Governmental Organization
NEPA National Environmental Policy Act
NTA Notice to Appear
OHSS Office of Homeland Security
Statistics
OIS Office of Immigration Statistics
OMB Office of Management and Budget
POE Port of Entry
RFA Regulatory Flexibility Act
SWB Southwest Land Border
TCO Transnational Criminal Organization
UC Unaccompanied Child, having the same
meaning as Unaccompanied Alien Child as
defined at 6 U.S.C. 279(g)(2)
UIP U.S. Customs and Border Protection
Unified Immigration Portal
UMRA Unfunded Mandates Reform Act of
1995
UNHCR United Nations High
Commissioner for Refugees
USBP U.S. Border Patrol
USCIS U.S. Citizenship and Immigration
Services
I. Public Participation
The Departments invite all interested
parties to participate in this rulemaking
by submitting written data, views,
comments, and arguments on all aspects
of this IFR by the deadline stated above.
The Departments also invite comments
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that relate to the economic,
environmental, or federalism effects that
might result from this IFR. Comments
that will provide the most assistance to
the Departments in implementing these
changes will reference a specific portion
of the IFR, explain the reason for any
recommended change, and include data,
information, or authority that supports
such recommended change. Comments
must be submitted in English, or an
English translation must be provided.
Comments submitted in a manner other
than pursuant to the instructions,
including emails or letters sent to the
Departments’ officials, will not be
considered comments on the IFR and
may not receive a response from the
Departments.
Instructions: If you submit a
comment, you must include the USCIS
Docket No. USCIS–2024–0006 for this
rulemaking. 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.
Docket: For access to the docket and
to read background documents or
comments received, go to https://
www.regulations.gov, referencing USCIS
Docket No. USCIS–2024–0006. You may
also sign up for email alerts on the
online docket to be notified when
comments are posted, or a final rule is
published.
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II. Executive Summary
A. Background and Purpose
On June 3, 2024, the President signed
a Proclamation under sections 212(f)
and 215(a) of the INA, 8 U.S.C. 1182(f)
and 1185(a), finding that because the
border security and immigration
systems of the United States are unduly
strained at this time, the entry into the
United States of certain categories of
noncitizens 1 is detrimental to the
interests of the United States, and
1 For purposes of this preamble, the Departments
use the term ‘‘noncitizen’’ to be synonymous with
the term ‘‘alien’’ as it is used in the INA. See INA
101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 590
U.S. 222, 226 n.2 (2020).
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suspending and limiting the entry of
such noncitizens. The Proclamation
explicitly excepts from its terms certain
persons who are not subject to the
suspension and limitation. This rule is
necessary to respond to the emergency
border circumstances discussed in the
Proclamation.
The Departments use the term
‘‘emergency border circumstances’’ in
this preamble to generally refer to
situations in which high levels of
encounters at the southern border
exceed DHS’s capacity to deliver timely
consequences to most individuals who
cross irregularly into the United States
and cannot establish a legal basis to
remain in the United States. As the
preamble elsewhere explains, the
periods during which the Proclamation
is intended to be in effect, when
encounters exceed certain thresholds,
identify such situations. Hence, the
Departments in this preamble use the
term ‘‘emergency border circumstances’’
to refer more specifically to the period
of time after the date that the
Proclamation’s suspension and
limitation on entry would commence (as
described in section 1 of the
Proclamation) until the discontinuation
date referenced in section 2(a) of the
Proclamation or the date the President
revokes the Proclamation (whichever
comes first), as well as any subsequent
period during which the Proclamation’s
suspension and limitation on entry
would apply as described in section 2(b)
of the Proclamation.2 As the
Proclamation and this preamble explain,
these circumstances exist despite the
Departments’ efforts to address
substantial levels of migration, and such
circumstances are a direct result of
Congress’s failure to update outdated
immigration laws and provide needed
funding and resources for the efficient
operation of the border security and
immigration systems.
The Proclamation explains that since
2021, as a result of political and
economic conditions globally, there
have been substantial levels of
migration throughout the Western
Hemisphere,3 including record levels at
2 The Departments have sought to avoid
describing ‘‘emergency border circumstances’’ as
the time period during which the Proclamation is
in effect, because the Departments intend for certain
provisions of this rule to remain in effect in the
event a court enjoins or otherwise renders
inoperable the Proclamation or this rule’s limitation
on asylum eligibility.
3 According to OHSS analysis of the United
Nations High Commissioner for Refugees
(‘‘UNHCR’’) data from 1969 to 2022, there were
more than 8.5 million displaced persons in the
Western Hemisphere in 2022, including
approximately 6.6 million Venezuelans, 300,000
Nicaraguans, 260,000 Hondurans, 250,000 Cubans,
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the southwest land border (‘‘SWB’’).4 In
250,000 Colombians, 210,000 Haitians, and 210,000
Salvadorans, among others. By comparison, prior to
2018 there were never more than 1 million
displaced persons in the hemisphere, and prior to
2007 there were never more than 300,000. Nearly
1 in every 100 people in the Western Hemisphere
was displaced in 2022, compared to less than 1 in
1,000 displaced in the region each year prior to
2018. See UNHCR, Refugee Data Finder, unhcr.org/
refugee-statistics/download/?url=PhV1Xc (last
visited May 27, 2024); see also UNHCR, Global
Trends: Forced Displacement in 2022, at 2, 8, 9, 12
(June 14, 2023), https://www.unhcr.org/globaltrends-report-2022 (showing rapid global increases
in forcibly displaced persons and other persons in
need of international protection in 2021 and 2022,
and projecting significant future increases);
UNHCR, Venezuela Situation, https://
www.unhcr.org/emergencies/venezuela-situation
(last updated Aug. 2023).
4 United States Government sources refer to the
U.S. border with Mexico by various terms,
including ‘‘SWB’’ and ‘‘the southern border.’’ In
some instances, these differences can be
substantive, referring only to portions of the border,
while in others they simply reflect different word
choices. As defined in section 4(d) of the
Proclamation, the term ‘‘southern border’’ includes
both the southwest land border (‘‘SWB’’) and the
southern coastal borders. As defined in section 4(c)
of the Proclamation, the term ‘‘southwest land
border’’ means the entirety of the United States land
border with Mexico. And as defined in section 4(b)
of the Proclamation, the term ‘‘southern coastal
borders’’ means all maritime borders in Texas,
Louisiana, Mississippi, Alabama, and Florida; all
maritime borders proximate to the SWB, the Gulf
of Mexico, and the southern Pacific coast in
California; and all maritime borders of the United
States Virgin Islands and Puerto Rico. The
Departments believe that the factual circumstances
described herein support applying this IFR to both
the SWB and the southern coastal borders, although
they recognize that occasionally different variations
of this terminology may be used. The Departments
further note there are sound reasons for the
Proclamation and rule to include maritime borders
of the United States Virgin Islands and Puerto Rico;
this aspect of the Proclamation and rule help avoid
any incentive for maritime migration to such
locations. The dangers of such migration, and the
operational challenges associated with responding
to such maritime migration, are well documented.
See Securing America’s Maritime Border:
Challenges and Solutions for U.S. National
Security: Hearing Before the Subcomm. on Transp.
& Mar. Sec. of the H. Comm. on Homeland Sec.,
108th Cong. 10–11 (prepared statement of Rear
Admiral Jo-Ann F. Burdian, Assistant Commandant
for Response Policy, U.S. Coast Guard) (describing
an increasingly challenging operational
environment and noting that most ‘‘Cuban and
Haitian migrants use transit routes into Florida,
either directly or via the Bahamas. Alternatively,
Dominican and some Haitian migrants use shorter
transit routes across the Mona Passage to Puerto
Rico and the U.S. Virgin Islands. Common
conveyances used in this region range from fishing
vessels, coastal freighters, sail freighters, go-fast
type vessels, and ‘rusticas.’ ’’); PBS, More Than 100
Migrants Stranded Near Puerto Rico Await Help
During Human Smuggling Operation (Oct. 18,
2022), https://www.pbs.org/newshour/world/morethan-100-migrants-stranded-near-puerto-rico-awaithelp-during-human-smuggling-operation (‘‘Mona
Island is located in the treacherous waters between
Dominican Republic and Puerto Rico and has long
been a dropping off point for human smugglers
promising to ferry Haitian and Dominican migrants
to the U.S. territory aboard rickety boats. Dozens of
them have died in recent months in an attempt to
flee their countries amid a spike in poverty and
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response to record levels of encounters
at the SWB,5 the United States
violence.’’); United States Coast Guard, Coast Guard
Repatriates 38 Migrants to Dominican Republic
Following 2 Interdictions Near Puerto Rico (Apr. 25,
2024), https://www.news.uscg.mil/Press-Releases/
Article/3755880/coast-guard-repatriates-38migrants-to-dominican-republic-following-2interdict/; United States Coast Guard, Coast Guard
Repatriates 101 Migrants to Dominican Republic
Following 3 Interdictions Near Puerto Rico (Apr. 9,
2024), https://www.news.uscg.mil/Press-Releases/
Article/3734747/coast-guard-repatriates-101migrants-to-dominican-republic-following-3interdic/; United States Coast Guard, Coast Guard,
Federal, Local Interagency Responders Search for
Possible Survivors of Capsized Migrant Vessel in
Camuy, Puerto Rico (Feb. 1, 2024), https://
www.news.uscg.mil/Press-Releases/Article/
3663106/coast-guard-federal-local-interagencyresponders-search-for-possible-survivors/; United
States Coast Guard, Coast Guard Repatriates 28
Migrants to Dominican Republic, Following
Interdiction of Unlawful Migration Voyage in the
Mona Passage (Jan. 31, 2024), https://
www.news.uscg.mil/Press-Releases/Article/
3661517/coast-guard-repatriates-28-migrants-todominican-republic-following-interdictio/. There
were 35,100 encounters of Dominicans between
POEs at the SWB in Fiscal Year (‘‘FY’’) 2023 and
14,100 in the first six months of FY 2024 (on pace
for 28,200), up from an average of 400 such
encounters per year in FY 2014 through FY 2019—
roughly a 90-fold increase. Office of Homeland
Security Statistics (‘‘OHSS’’) analysis of March 2024
OHSS Persist Dataset.
5 At the SWB, U.S. Customs and Border
Protection (‘‘CBP’’) completed approximately 1.7
million encounters at and between POEs in FY
2021, 2.4 million in FY 2022, and 2.5 million in FY
2023, with each year exceeding the previous record
high of 1.68 million in FY 2000. Compare OHSS,
2022 Yearbook of Immigration Statistics 89 tbl. 33
(Nov. 2023), https://www.dhs.gov/sites/default/
files/2023-11/2023_0818_plcy_yearbook_
immigration_statistics_fy2022.pdf (total
apprehensions and Title 42 expulsions from 1925
to 2022), and id. at 94–96 tbl. 35 (apprehensions
from FY 2013 to FY 2022), with OHSS, 2012
Yearbook of Immigration Statistics 96 tbl. 35 (July
2013), https://www.dhs.gov/sites/default/files/
publications/Yearbook_Immigration_Statistics_
2012.pdf (apprehensions from FY 2003 to FY 2012),
and OHSS, 2002 Yearbook of Immigration Statistics
184 tbl. 40 (Oct. 2003), https://www.dhs.gov/sites/
default/files/publications/Yearbook_Immigration_
Statistics_2002.pdf (apprehensions from FY 1996 to
FY 2002). In December 2023, CBP also completed
a single-month record of approximately 302,000
encounters at and between POEs, almost one and
a half times as many as the highest monthly number
recorded prior to 2021 (approximately 209,000 in
March 2000) based on records available in the
OHSS Persist Dataset from FY 2000 to the present.
Although some of the increase in encounters is
explained by higher-than-normal numbers of repeat
encounters of the same individuals during the
period in which noncitizens were expelled
pursuant to the Centers for Disease Control and
Prevention’s (‘‘CDC’s’’) Title 42 public health Order,
OHSS analysis of the March 2024 OHSS Persist
Dataset indicates that unique encounters were also
at record high levels. See OHSS analysis of March
2024 OHSS Persist Dataset.
DHS data in this IFR are current through March
31, 2024, the most recent month for which DHS has
data that have gone through its full validation
process. DHS primarily relies on two separate
datasets for most of the data in this IFR. Most DHS
data are pulled from OHSS’s official statistical
system of record data, known as the OHSS Persist
Dataset, which is typically released by OHSS on a
90-day delay. Other data in this IFR are pulled from
OHSS’s Enforcement Lifecycle dataset, which
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Government has taken a series of
significant steps to strengthen
consequences for unlawful or
unauthorized entry at the border, while
at the same time overseeing the largest
expansion of lawful, safe, and orderly
pathways and processes for individuals
to come to the United States for
protection in decades.6 These steps
include:
• Promulgating and implementing the
rule titled Circumvention of Lawful
Pathways, 88 FR 31314 (May 16, 2023)
(‘‘Circumvention of Lawful Pathways
rule’’);
• Deploying more than 500 additional
DHS personnel at a time to the SWB to
support U.S. Customs and Border
Protection (‘‘CBP’’) operations and
refocusing a significant portion of DHS’s
SWB workforce to prioritize migration
management above other border security
missions; 7
• Deploying over 1,000 additional
Department of Defense (‘‘DOD’’)
personnel on top of the 2,500 steady
state presence to the SWB in May 2023
to further enhance border security; 8
combines 23 separate DHS and DOJ datasets to
report on the end-to-end immigration enforcement
process. Due to this greater complexity, Lifecycle
data generally become available for reporting 90 to
120 days after the end of each quarter.
CBP also publishes preliminary data pulled from
its operational systems more quickly as part of its
regular Monthly Operational Updates. The data in
these updates reflect operational realities but
change over time as transactional records in the
systems of record are cleaned and validated; they
are best viewed as initial estimates rather than as
final historical records. CBP released an operational
update on May 15, 2024, that includes the
Component’s official reporting for encounters
through the end of April. Based on these data, SWB
encounters between POEs fell slightly by six
percent between March and April. OHSS analysis
of data obtained from CBP, Southwest Land Border
Encounters, https://www.cbp.gov/newsroom/stats/
southwest-land-border-encounters (last accessed
May 24, 2024). The preliminary April data are best
understood to reflect a continuation of the general
pattern described elsewhere in this IFR. Excluding
March through April 2020, which was an unusual
case because of the onset of the COVID–19
pandemic, the average month-over-month change
between March and April for 2013 through 2024 is
a 2.3 percent increase, with 4 out of those 11 years
experiencing decreases in April and 7 years
experiencing increases.
6 See DHS, Fact Sheet: Department of State and
Department of Homeland Security Announce
Additional Sweeping Measures to Humanely
Manage Border through Deterrence, Enforcement,
and Diplomacy (May 10, 2023), https://
www.dhs.gov/news/2023/05/10/fact-sheetadditional-sweeping-measures-humanely-manageborder.
7 DHS, Fact Sheet: The Biden-Harris
Administration Takes New Actions to Increase
Border Enforcement and Accelerate Processing for
Work Authorizations, While Continuing to Call on
Congress to Act (Sept. 20, 2023), https://
www.dhs.gov/news/2023/09/20/fact-sheet-bidenharris-administration-takes-new-actions-increaseborder.
8 Id.; see also DOD, Austin Approves Homeland
Security Request for Troops at Border (May 2,
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• Processing record numbers of
individuals through expedited
removal; 9
• Implementing a historic expansion
of lawful pathways and processes to
come to the United States, including:
the Cuba, Haiti, Nicaragua, and
Venezuela (‘‘CHNV’’) parole processes,
which allow individuals with U.S.based supporters to seek parole on a
case-by-case basis for urgent
humanitarian reasons or significant
public benefit; the Safe Mobility Offices
in Colombia, Costa Rica, Ecuador, and
Guatemala, which provide access to
expedited refugee processing for eligible
individuals; and the expansion of
country-specific family reunification
parole processes for individuals in the
region who have U.S. citizen relatives in
the United States; 10
• Expanding opportunities to enter
the United States for seasonal
employment; 11
• Establishing a mechanism for over
1,400 migrants per day to schedule a
time and place to arrive in a safe,
orderly, and lawful manner at ports of
entry (‘‘POEs’’) through the CBP One
mobile application (‘‘CBP One app’’); 12
• Increasing proposed refugee
admissions from the Western
Hemisphere from 5,000 in Fiscal Year
(‘‘FY’’) 2021 to up to 50,000 in FY
2024; 13
2023), https://www.defense.gov/News/NewsStories/Article/Article/3382272/austin-approveshomeland-security-request-for-troops-at-border/.
9 In the months between May 12, 2023, and
March 31, 2024, CBP processed roughly 316,000
noncitizens encountered at and between SWB POEs
for expedited removal, more than in any prior full
fiscal year. OHSS analysis of data pulled from CBP
Unified Immigration Portal (‘‘UIP’’) on April 2,
2024.
10 DHS, Fact Sheet: U.S. Government Announces
Sweeping New Actions to Manage Regional
Migration (Apr. 27, 2023), https://www.dhs.gov/
news/2023/04/27/fact-sheet-us-governmentannounces-sweeping-new-actions-manage-regionalmigration.
11 DHS, DHS to Supplement H–2B Cap with
Nearly 65,000 Additional Visas for FY 2024,
Department of Homeland Security (Nov. 3, 2023),
https://www.dhs.gov/news/2023/11/03/dhssupplement-h-2b-cap-nearly-65000-additionalvisas-fiscal-year-2024.
12 DHS, Fact Sheet: U.S. Government Announces
Sweeping New Actions to Manage Regional
Migration (Apr. 27, 2023), https://www.dhs.gov/
news/2023/04/27/fact-sheet-us-governmentannounces-sweeping-new-actions-manage-regionalmigration; CBP, CBP OneTM Appointments
Increased to 1,450 Per Day (June 30, 2023), https://
www.cbp.gov/newsroom/national-media-release/
cbp-one-appointments-increased-1450-day.
13 U.S. State Dep’t, Report to Congress on
Proposed Refugee Admissions for Fiscal Year 2024
(Nov. 3, 2023) https://www.state.gov/report-tocongress-on-proposed-refugee-admissions-for-fiscalyear-2024/.
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• Completing approximately 89
percent more immigration court cases in
FY 2023 as compared to FY 2019; 14 and
• Increasing the immigration judge
(‘‘IJ’’) corps by 66 percent from FY 2019
to FY 2023, including maximizing the
congressionally authorized number in
FY 2023 for a total corps of 734.15
The Proclamation further states that
although these efforts and other
complementary measures are having
their intended effect—DHS is processing
noncitizens for removal in record
numbers and with record efficiency 16—
the border security and immigration
systems have not been able to keep pace
with the number of individuals arriving
at the southern border.17 Simply put,
the Departments do not have adequate
resources and tools to deliver timely
14 See EOIR, Adjudication Statistics: New Cases
and Total Completions—Historical 1–2 (Oct. 12,
2023), https://www.justice.gov/d9/pages/
attachments/2022/09/01/3_new_cases_and_total_
completions_-_historical.pdf.
15 See EOIR, Adjudication Statistics: Immigration
Judge (IJ) Hiring 1 (Jan. 2024), https://
www.justice.gov/eoir/media/1344911/dl?inline
(showing 734 total IJs on board in FY 2023);
Executive Office for Immigration Review (‘‘EOIR’’)
Strategic Plan 2024, Current Operating
Environment, https://www.justice.gov/eoir/
strategic-plan/strategic-context/current-operatingenviroment (last visited May 27, 2024) (‘‘The
agency’s streamlining efforts also enabled EOIR, by
the close of FY 2023, to fill all 734 appropriated IJ
positions, thus creating the largest judge corps in
the agency’s history.’’).
16 See supra note 9. Since May 12, 2023, the
median time to refer noncitizens encountered by
CBP at the SWB who claim a fear for credible fear
interviews decreased by 77 percent from its
historical average, from 13 days in the FY 2014 to
FY 2019 pre-pandemic period to 3 days in the four
weeks ending March 31, 2024; for those who
receive negative credible fear determinations, the
median time from encounter to removal, over the
same time frames, decreased 85 percent from 73
days to 11 days. Pre-May 12, 2023, data from OHSS
Lifecycle Dataset as of December 31, 2023; post-May
11, 2023, data from OHSS analysis of data
downloaded from UIP on April 2, 2024.
DHS removed or returned over 662,000
noncitizens between May 12, 2023, and March 31,
2024, or an average of over 61,300 per month
(excluding crew members detained on board their
vessels and other administrative returns); this
represents the highest average monthly count of
removals and returns since FY 2010. Post-May 12,
2023, repatriations from OHSS analysis of data
downloaded from UIP on April 2, 2024; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (providing historic data on repatriations);
OHSS, 2022 Yearbook of Immigration Statistics
103–04 tbl. 39 (Nov. 2023), https://www.dhs.gov/
sites/default/files/2023-11/2023_0818_plcy_
yearbook_immigration_statistics_fy2022.pdf
(noncitizen removals, returns, and expulsions for
FY 1892 to FY 2022).
17 See Letter for Kevin McCarthy, Speaker of the
House of Representatives, from Shalanda D. Young,
Director, Office of Management and Budget
(‘‘OMB’’) (Aug. 10, 2023), https://
www.whitehouse.gov/wp-content/uploads/2023/08/
Final-Supplemental-Funding-Request-Letter-andTechnical-Materials.pdf.
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decisions and consequences to
individuals who cross unlawfully and
cannot establish a legal basis to remain
in the United States, or to provide
timely protection to those ultimately
found eligible for protection when
individuals are arriving at such
elevated, historic volumes.18
This became even more clear in the
months following the lifting of the Title
42 public health Order.19 As the
Departments resumed widespread
processing under title 8 authorities, the
insufficiency of both the available
statutorily authorized tools and the
18 Id.; see also Ariel G. Ruiz-Soto et al., Migration
Pol’y Inst., Shifting Realities at the U.S.-Mexico
Border: Immigration Enforcement and Control in a
Fast-Evolving Landscape 20 (Jan. 2024), https://
www.migrationpolicy.org/sites/default/files/
publications/mpi-contemporary-border-policy2024_final.pdf (‘‘Across the border, interviewed
agents expressed frustration with low staffing levels
and resource allocations compared to the challenge
of managing the border.’’). DHS acknowledges that
the enacted FY 2024 DHS budget does appropriate
funding sufficient to pay for approximately 2,000
additional Border Patrol agents, bringing the total
level indicated by Congress up to 22,000 agents,
compared with 19,855 agents for FY 2023. 170 Cong
Rec. H1809–10 (daily ed. Mar. 22, 2024)
(Explanatory Statement Regarding H.R. 2882,
Further Consolidated Appropriations Act, 2024)
(‘‘The agreement includes . . . [funding] to hire
22,000 Border Patrol Agents.’’); 168 Cong Rec.
S8557 (daily ed. Dec. 20, 2022) (Explanatory
Statement Regarding H.R. 2617, Consolidated
Appropriations Act, 2023) (‘‘The agreement
provides funding for 19,855 Border Patrol agents.’’).
However, the FY 2024 appropriations do not fully
fund CBP’s existing operational and staffing
requirements. Additionally, CBP estimates that it
will likely be unable to implement a hiring surge
to meaningfully grow its overall staffing levels
towards the staffing levels funded by the FY 2024
budget before the end of the current fiscal year. The
hiring process requires time and resources to bring
additional agents on board. For example, it
generally takes more than six months for an
applicant to complete the hiring process and report
to the U.S. Border Patrol (‘‘USBP’’) Academy to
receive necessary training. See DHS, Statement
from Secretary Mayorkas on the President’s Fiscal
Year 2025 Budget for the U.S. Department of
Homeland Security (Mar. 11, 2024), https://
www.dhs.gov/news/2024/03/11/statementsecretary-mayorkas-presidents-fiscal-year-2025budget-us-department (‘‘However, DHS’s border
security and immigration enforcement efforts along
the Southwest border desperately require the
additional funds requested by the Administration
and included in the Senate’s bipartisan border
security legislation, which would provide DHS with
approximately $19 billion to fund additional
personnel, facilities, repatriation capabilities, and
other enforcement resources.’’).
19 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[ed] 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’’).
Although the CDC indicated its intention to lift the
order on May 23, 2022, ongoing litigation prevented
the order from being lifted until it ultimately
expired on May 11, 2023. See 88 FR at 31319.
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resources provided to implement them
came into stark focus. Despite the
expanded ability to impose
consequences at the SWB through the
Circumvention of Lawful Pathways rule
and complementary measures, which
led to the highest numbers of returns
and removals in more than a decade,20
encounter levels have remained
elevated well above historical levels,
with December 2023 logging the highest
monthly total on record.21 While
encounter levels in calendar year 2024
have decreased from these record
numbers, there is still a substantial and
elevated level of migration, and
historically high percentages of migrants
are claiming fear and are challenging to
remove, as discussed in more detail in
Section III.B.1 of this preamble.22 This
20 In the ten and a half months between May 12,
2023, and March 31, 2024, DHS completed over
662,000 removals and enforcement returns, more
than in any full fiscal year since FY 2011, and the
highest monthly average of enforcement
repatriations since FY 2010. Post-May 12, 2023,
repatriations from OHSS analysis of data
downloaded from UIP on April 2, 2024; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (providing historic data on repatriations);
OHSS, 2022 Yearbook of Immigration Statistics
103–04 tbl. 39 (Nov. 2023), https://www.dhs.gov/
sites/default/files/2023-11/2023_0818_plcy_
yearbook_immigration_statistics_fy2022.pdf
(noncitizen removals, returns, and expulsions for
FY 1892 to FY 2022).
21 There were nearly 302,000 CBP encounters at
and between POEs along the SWB in December
2023, higher than any previous month on record.
OHSS analysis of March 2024 OHSS Persist Dataset
and historic CBP data for encounters prior to FY
2000; see also OHSS, 2022 Yearbook of Immigration
Statistics 89 tbl. 33 (Nov. 2023) (total apprehensions
and Title 42 expulsions from 1925 to 2022), https://
www.dhs.gov/sites/default/files/2023-11/2023_
0818_plcy_yearbook_immigration_statistics_
fy2022.pdf; id. at 94–96 tbl. 35 (apprehensions from
FY 2013 to FY 2022); OHSS, Immigration
Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (SWB encounters from
FY 2014 through December 2023).
22 After peaking at nearly 302,000 in December
2023, encounters at and between POEs along the
SWB fell to approximately 176,000 in January 2024,
190,000 in February 2024, and 189,000 in March
2024. At an average of 185,000 for the first three
months of 2024, monthly encounters levels were
almost 4 times higher than the pre-pandemic (FY
2014 through 2019) average of 48,000 encounters at
and between POEs per month and—with the
exceptions of FY 2022 and FY 2023—represented
the highest second quarter count of encounters in
any year since FY 2001. March 2024 OHSS Persist
Dataset; see also OHSS, 2022 Yearbook of
Immigration Statistics 89 tbl. 33 (Nov. 2023),
https://www.dhs.gov/sites/default/files/2023-11/
2023_0818_plcy_yearbook_immigration_statistics_
fy2022.pdf (total apprehensions and title 42
expulsions from 1925 to 2022); id. at 94–96 tbl. 35
(apprehensions from FY 2013 to FY 2022); OHSS,
Immigration Enforcement and Legal Processes
Monthly Tables, https://www.dhs.gov/ohss/topics/
immigration/enforcement-and-legal-processes-
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substantial migration throughout the
hemisphere, combined with inadequate
resources and tools to keep pace, limits
DHS’s ability to impose timely
consequences through expedited
removal, the main consequence
available at the border under title 8
authorities.
The sustained, high encounter rates
the Departments have experienced over
the past year have outstripped the
Departments’ abilities—based on
available resources—to process
noncitizens through expedited removal
in significant numbers. Due to its
funding shortfall, DHS simply lacks
sufficient resources, such as sufficient
USCIS asylum officers (‘‘AOs’’) to
conduct fear screenings and sufficient
temporary processing facilities, often
called ‘‘soft-sides,’’ which limits DHS’s
ability to conduct credible fear
interviews for individuals in CBP
custody and to process and hold
individuals in U.S. Immigration and
Customs Enforcement (‘‘ICE’’) custody
during the expedited removal process.23
This mismatch in available resources
and encounters creates stress on the
border and immigration systems and
forces DHS to rely on processing
pathways outside of expedited
removal—limiting the Departments’
ability to deliver timely consequences to
individuals who do not have a legal
basis to remain in the United States.24
Individuals who are subject to but
cannot be processed under expedited
removal due to resource constraints are
instead released pending removal
proceedings under section 240 of the
monthly-tables (last updated May 10, 2024) (SWB
encounters from FY 2014 through December 2023).
23 ‘‘Because ICE has very limited detention
capacity and appropriated bedspace has remained
relatively static, the agency must carefully prioritize
whom it detains. Similar to FY 2022, during FY
2023, Enforcement and Removal Operations’
limited detention capacity was primarily used to
house two populations: noncitizens CBP arrested at
the Southwest Border and noncitizens with
criminal histories [Enforcement and Removal
Operations] arrested in the interior.’’ Fiscal Year
2023 ICE Annual Report 18 (Dec. 29, 2023), https://
www.ice.gov/doclib/eoy/
iceAnnualReportFY2023.pdf. In FY 2024, ICE was
appropriated $5,082,218,000.00 ‘‘for enforcement,
detention and removal operations.’’ Consolidated
Appropriations Act, 2024, Public Law 118–47, 138
Stat. 460, 598 (2024). The joint explanatory
statement states that the bill provides
‘‘$5,082,218,000 for Enforcement and Removal
Operations (ERO)’’ and ‘‘$355,700,000 for 41,500
beds for the full fiscal year and inflationary
adjustments to support current detention facility
operations.’’ 170 Cong. Rec. H1807, 1812 (daily ed.
Mar. 22, 2024).
24 See CBP, Custody and Transfer Statistics,
https://www.cbp.gov/newsroom/stats/custody-andtransfer-statistics (last updated Apr. 12, 2024) (table
showing that, under current constraints, the number
of individuals processed for expedited removal
makes up only a fraction of total processing
dispositions, including section 240 proceedings).
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INA, 8 U.S.C. 1229a (‘‘section 240
removal proceedings’’), before an IJ, a
process that can take several years to
conclude.25 These immigration court
proceedings can be less resource
intensive for processing upon initial
encounter, because individuals can be
released from custody fairly quickly, but
are also far less likely to result in swift
decisions and swift consequences, and
generally require more IJ and ICE
attorney time to resolve. Compare INA
235(b)(1), 8 U.S.C. 1225(b)(1), with INA
240, 8 U.S.C. 1229a. Notably, in FY
2023, when the immigration courts had
a historic high number of case
completions, the number of new cases
far outnumbered those completions and
led to a larger backlog—likely extending
the length of time it will take
individuals encountered and referred
into section 240 removal proceedings to
finish their immigration court process.26
25 EOIR decisions completed in December 2023
were, on average, initiated in December 2020,
during the significant operational disruptions
caused by the COVID–19 pandemic (with
encounters several months earlier than that), but 50
percent of EOIR cases initiated during that time
were still pending as of December 2023, so the final
mean processing time (once all such cases are
complete) will be longer. OHSS analysis of EOIR
data as of February 12, 2024; EOIR Strategic Plan
2024, Current Operating Environment, https://
www.justice.gov/eoir/strategic-plan/strategiccontext/current-operating-enviroment (last visited
May 26, 2024) (‘‘EOIR [ ] suffered operational
setbacks during the COVID–19 pandemic years of
FY 2020 through FY 2022, including declining case
completions due to health closures and scheduling
complications and delays in agency efforts to
transition to electronic records and the efficiencies
they represent. While the challenges of the
pandemic were overcome by adaptive measures
taken during those years, the pandemic’s impact on
the pending caseload is still being felt.’’). While
EOIR does not report statistics on pending median
completion times for removal proceedings in
general, it does report median completion times for
certain types of cases, such as detained cases and
cases involving UCs. See, e.g., EOIR, Median
Unaccompanied Noncitizen Child (UAC) Case
Completion and Case Pending Time (Jan. 18, 2024),
https://www.justice.gov/eoir/media/1344951/
dl?inline (median completion time of 1,346 days);
EOIR, Median Completion Times for Detained Cases
(Jan. 18, 2024), https://www.justice.gov/eoir/media/
1344866/dl?inline (median completion time of 47
days in the first quarter of 2024 for removal,
deportation, exclusion, asylum-only, and
withholding-only cases); EOIR, Percentage of DHSDetained Cases Completed within Six Months (Jan.
18, 2024), https://www.justice.gov/eoir/media/
1344886/dl?inline (reporting seven percent of
detained cases not completed within six months).
26 EOIR completed more than 520,000 cases in FY
2023 (a record number), but also had almost 1.2
million case receipts, resulting in a net increase of
nearly 700,000 cases in its backlog. See EOIR,
Adjudication Statistics: Pending Cases, New Cases,
and Total Completions 1 (Oct. 12, 2023), https://
www.justice.gov/d9/pages/attachments/2020/01/31/
1_pending_new_receipts_and_total_
completions.pdf; EOIR, Adjudication Statistics:
New Cases and Total Completions—Historical (Oct.
12, 2023), https://www.justice.gov/d9/pages/
attachments/2022/09/01/3_new_cases_and_total_
completions_-_historical.pdf. OHSS estimates that
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Said another way, at the current levels
of encounters and with current
resources, the Departments cannot
predictably and swiftly deliver
consequences to most noncitizens who
cross the border without a lawful basis
to remain. This inability to predictably
deliver timely decisions and
consequences further compounds
incentives for migrants to make the
dangerous journey to the SWB,
regardless of any individual
noncitizen’s ultimate likelihood of
success on an asylum or protection
application.27 Smugglers and
transnational criminal organizations
(‘‘TCOs’’) have exploited this mismatch,
further fueling migration by actively
advertising to migrants that they are
likely to be able to remain in the United
States.28
The Departments’ ability to refer and
process noncitizens through expedited
removal thus continues to be
overwhelmed, creating a vicious cycle
in which the border security and
immigration systems cannot deliver
timely decisions and consequences to
all the people who are encountered at
the SWB and lack a lawful basis to
remain in the United States. This, in
turn, forces DHS to release individuals
into the backlogged immigration court
system; for the many cases in that
system initiated just prior to or during
the COVID–19 pandemic, the process
can take several years to result in a final
decision or consequence,29 which then
incentivizes more people to make the
dangerous journey north to take their
chances at the SWB.30 The status quo of
the broken immigration and asylum
system has become a driver for unlawful
migration throughout the region and an
increasingly lucrative source of income
for dangerous TCOs.31 Without
countermeasures, those TCOs will
continue to grow in strength, likely
resulting in even more smuggling
operations and undermining democratic
governance in the countries where they
operate.32 All of these factors, taken
together, pose significant threats to the
1.1 million of the nearly 1.2 million case receipts
(95 percent) resulted from SWB encounters. OHSS
analysis of March 2024 OHSS Persist Dataset.
27 Miriam Jordan, One Big Reason Migrants Are
Coming in Droves: They Believe They Can Stay,
N.Y. Times (Jan. 31, 2024), https://
www.nytimes.com/2024/01/31/us/us-immigrationasylum-border.html.
28 See Parker Asmann & Steven Dudley, How US
Policy Foments Organized Crime on US-Mexico
Border, Insight Crime (June 28, 2023), https://
insightcrime.org/investigations/how-us-policyfoments-organized-crime-us-mexico-border/.
29 See supra note 25.
30 See, e.g., Jordan, supra note 27.
31 See Asmann & Dudley, supra note 28.
32 See Jordan, supra note 27.
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safety and security of migrants exploited
into making the dangerous journey to
the SWB and the U.S. communities
through which many such migrants
transit.
In the absence of congressional action
to appropriately resource DHS and EOIR
and to reform the outdated statutory
framework, the Proclamation and the
changes made by this rule are intended
to substantially improve the
Departments’ ability to deliver timely
decisions and consequences to
noncitizens who lack a lawful basis to
remain. By suspending and limiting
entries until 12:01 a.m. eastern time on
the date that is 14 calendar days after
the Secretary makes a factual
determination that there has been a 7consecutive-calendar-day average of less
than 1,500 encounters, as defined by the
Proclamation, but excluding noncitizens
determined to be inadmissible at a SWB
POE, and by imposing a limitation on
asylum eligibility and making other
policy changes, the Proclamation and
IFR will realign incentives at the
southern border.33 The Proclamation
and IFR will do this by improving
DHS’s ability to place into expedited
removal the majority of noncitizens who
are amenable to such processing; to
avoid large-scale releases of such
individuals pending section 240
removal proceedings; and to allow for
swift resolution of their cases and,
where appropriate, removal.
The Proclamation imposes a
suspension and limitation on entry
upon certain classes of noncitizens who
are encountered while the suspension
and limitation is in effect. The
Proclamation provides that the
suspension and limitation on entry
applies beginning at 12:01 a.m. eastern
daylight time on June 5, 2024. The
suspension and limitation on entry will
be discontinued 14 calendar days after
the Secretary makes a factual
determination that there has been a 7consecutive-calendar-day average of less
than 1,500 encounters, as defined by the
33 Under the Proclamation, the term ‘‘encounter’’
refers to a noncitizen who (i) is physically
apprehended by CBP immigration officers within
100 miles of the United States SWB during the 14day period immediately after entry between POEs;
(ii) is physically apprehended by DHS personnel at
the southern coastal borders during the 14-day
period immediately after entry between POEs; or
(iii) is determined to be inadmissible at a SWB POE.
But the 1,500 and 2,500 encounter thresholds in the
Proclamation and this rule exclude the third
category of encounters—individuals determined to
be inadmissible at a SWB POE. When describing
historical data in this preamble, the Departments
have generally sought to distinguish between
encounters between POEs (also referred to as
‘‘USBP encounters’’) and encounters at and between
the POEs (also referred to as ‘‘total CBP encounters’’
or ‘‘encounters,’’ depending on the context).
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Proclamation, but excluding noncitizens
determined to be inadmissible at a SWB
POE. Unaccompanied children
(‘‘UCs’’) 34 from non-contiguous
countries are not included in calculating
the number of encounters. If at any time
after such a factual determination the
Secretary makes a factual determination
that there has been a 7-consecutivecalendar-day average of 2,500
encounters or more, the suspension and
limitation on entry will apply at 12:01
a.m. eastern time on the next calendar
day (or will continue to apply, if the 14calendar-day period has yet to elapse)
until 14 days after the Secretary makes
another factual determination that there
has been a 7-consecutive-calendar-day
average of less than 1,500 encounters or
the President revokes the Proclamation,
at which time its application will be
discontinued once again.
The Proclamation does not apply to
the following persons:
(i) any noncitizen national of the
United States;
(ii) any lawful permanent resident of
the United States;
(iii) any unaccompanied child as
defined in section 279(g)(2) of title 6,
United States Code;
(iv) any noncitizen who is determined
to be a victim of a severe form of
trafficking in persons, as defined in
section 7102(16) of title 22, United
States Code;
(v) any noncitizen who has a valid
visa or other lawful permission to seek
entry or admission into the United
States, or presents at a port of entry
pursuant to a pre-scheduled time and
place, including:
(A) members of the United States
Armed Forces and associated personnel,
United States Government employees or
contractors on orders abroad, or their
accompanying family members who are
on their orders or are members of their
household;
(B) noncitizens who hold a valid visa
or who have all necessary documents
required for admission consistent with
the requirements of section 1182(a)(7) of
title 8, United States Code, upon arrival
at a port of entry;
(C) noncitizens traveling pursuant to
the visa waiver program as described in
section 217 of the INA, 8 U.S.C. 1187;
and
(D) noncitizens who arrive in the
United States at a southwest land border
port of entry pursuant to a process the
Secretary of Homeland Security
determines is appropriate to allow for
34 In this rulemaking, as in the Proclamation, the
term ‘‘unaccompanied children’’ or ‘‘UCs’’ has the
same meaning as the term ‘‘unaccompanied alien
child[ren]’’ under 6 U.S.C. 279(g)(2).
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48715
the safe and orderly entry of noncitizens
into the United States;
(vi) any noncitizen who is permitted
to enter by the Secretary of Homeland
Security, acting through a U.S. Customs
and Border Protection immigration
officer, based on the totality of the
circumstances, including consideration
of significant law enforcement, officer
and public safety, urgent humanitarian,
and public health interests at the time
of the entry or encounter that warranted
permitting the noncitizen to enter; and
(vii) any noncitizen who is permitted
to enter by the Secretary of Homeland
Security, acting through a U.S. Customs
and Border Protection immigration
officer, due to operational
considerations at the time of the entry
or encounter that warranted permitting
the noncitizen to enter.
The President authorized the
Secretary of Homeland Security and the
Attorney General to issue any
instructions, orders, or regulations as
may be necessary to implement the
Proclamation, including the
determination of the exceptions in
section 3(b), and directed them to
promptly consider issuing any
instructions, orders, or regulations as
may be necessary to address the
circumstances at the southern border,
including any additional limitations and
conditions on asylum eligibility that
they determine are warranted, subject to
any exceptions that they determine are
warranted.
Consistent with the President’s
direction, the Departments have
determined that this IFR is necessary to
address the situation at the southern
border. This IFR aligns the Departments’
border operations and applicable
authorities with the Proclamation’s
policy and objectives. Specifically, this
IFR establishes a limitation on asylum
eligibility that applies to certain
individuals who enter during
emergency border circumstances and
revises certain procedures applicable to
the expedited removal process to more
swiftly apply consequences for irregular
migration 35 and remove noncitizens
who do not have a legal basis to remain
in the United States. Although the
Departments are adopting these
measures to respond to the emergency
situation at the southern border, they
are not a substitute for congressional
action—which remains the only longterm solution to the challenges the
Departments have confronted on the
border for more than a decade.
35 In this preamble, ‘‘irregular migration’’ refers to
the movement of people into another country
without authorization.
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B. Legal Authority
The Secretary and the Attorney
General jointly issue this rule pursuant
to their shared and respective
authorities concerning consideration of
claims for asylum, statutory
withholding of removal, and protection
under regulations implemented
pursuant to U.S. obligations under
Article 3 of the Convention Against
Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
(‘‘CAT’’).36 The Homeland Security Act
of 2002 (‘‘HSA’’), Public Law 107–296,
116 Stat. 2135, as amended, created
DHS and transferred to the Secretary of
Homeland Security many functions
related to the administration and
enforcement of Federal immigration law
while maintaining some functions and
authorities with the Attorney General,
including some shared 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)(3), 8
U.S.C. 1103(a)(3); see also 6 U.S.C. 202.
The HSA provides 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 [EOIR], or by
the Attorney General with respect to
[EOIR].’’ INA 103(g)(1), 8 U.S.C.
1103(g)(1); see also 6 U.S.C. 521. In
addition, under the HSA, the Attorney
General retains authority to ‘‘establish
such regulations, . . . issue such
instructions, review such administrative
determinations in immigration
proceedings, delegate such authority,
and perform such other acts as the
Attorney General determines to be
necessary for carrying out’’ the Attorney
General’s 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
removal proceedings under section 240
of the INA, 8 U.S.C. 1229a (‘‘section 240
36 Convention
Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20
(1988), 1465 U.N.T.S. 85, 114; see also 8 U.S.C.
1231 note (United States Policy With Respect to
Involuntary Return of Persons in Danger of
Subjection to Torture); 8 CFR 208.16(c)–208.18,
1208.16(c)–1208.18.
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removal proceedings’’). These
adjudications are conducted by IJs
within DOJ’s EOIR. See 6 U.S.C. 521;
INA 103(g)(1), 8 U.S.C. 1103(g)(1). With
limited exceptions, IJs 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’s EOIR, in turn hears
appeals from IJ decisions. See 8 CFR
1003.1(a)(1), (b)(3); see also Garland v.
Ming Dai, 593 U.S. 357, 366–67 (2021)
(describing appeals from IJs to the BIA).
And 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.37 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’’ within the
meaning of section 101(a)(42)(A) of the
INA, 8 U.S.C. 1101(a)(42)(A). 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
37 The HSA further provides, ‘‘Nothing in this
Act, any amendment made by this Act, or in section
103 of the [INA], as amended . . . , shall be
construed to limit judicial deference to regulations,
adjudications, interpretations, orders, decisions,
judgments, or any other actions of the Secretary of
Homeland Security or the Attorney General.’’
Public Law 107–296, 116 Stat. 2135, 2274 (codified
at 6 U.S.C. 522).
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Attorney General to ‘‘provide by
regulation for any other conditions or
limitations on the consideration of an
application for asylum not inconsistent
with [the INA]’’).38 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
establish procedures for further
consideration of asylum applications
after an individual is found to have a
credible fear. INA 103(a)(3), 8 U.S.C.
1103(a)(3); 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 AOs conduct credible
fear interviews, make credible fear
determinations, and determine whether
a noncitizen’s asylum application
should be granted. See DHS, No. 0150.1,
Delegation to the Bureau of Citizenship
and Immigration Services (June 5, 2003);
8 CFR 208.2(a), 208.9, 208.30.
The United States is a party to the
1967 Protocol Relating to the Status of
Refugees, Jan. 31, 1967, 19 U.S.T. 6223,
606 U.N.T.S. 267 (‘‘Refugee Protocol’’),
which incorporates Articles 2 through
34 of the 1951 Convention Relating to
the Status of Refugees, July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150 (‘‘Refugee
Convention’’). Article 33 of the Refugee
Convention 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.’’ Refugee Convention, supra,
19 U.S.T. at 6276, 189 U.N.T.S. at 176.
38 Under the HSA, the references to the ‘‘Attorney
General’’ in the INA also encompass the Secretary
with respect to statutory authorities vested in the
Secretary by the HSA or subsequent legislation,
including in relation to immigration proceedings
before DHS. 6 U.S.C. 251, 271(b)(3), (5), 557.
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Congress implemented these
obligations through the Refugee Act of
1980, Public Law 96–212, 94 Stat. 102
(‘‘Refugee Act’’), creating the precursor
to what is now known as statutory
withholding of removal. The Supreme
Court has long recognized that the
United States implements its nonrefoulement obligations under Article
33 of the Refugee Convention (via the
Refugee Protocol) through the statutory
withholding of removal provision in
section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3) (‘‘statutory withholding of
removal’’), 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.39 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), (3), (g)(1)–(2), 8 U.S.C.
1103(a)(1), (3), (g)(1)–(2).
The Departments also have authority
to implement Article 3 of the CAT. 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 (codified at 8 U.S.C. 1231 note).
DHS and DOJ have implemented the
obligations of the United States under
Article 3 of the CAT in the Code of
Federal Regulations, consistent with
FARRA. See, e.g., 8 CFR 208.16(c)–
208.18, 1208.16(c)–1208.18; Regulations
Concerning the Convention Against
Torture, 64 FR 8478 (Feb. 19, 1999),
amended by 64 FR 13881 (Mar. 23,
1999).
This rule is necessary because, while
the Proclamation recognizes that the
39 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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asylum system has contributed to the
border emergency, the Proclamation
itself does not and cannot affect
noncitizens’ right to apply for asylum,
eligibility for asylum, or asylum
procedures. That has been the Executive
Branch’s consistent position for four
decades.40 That longstanding
understanding follows from the text and
structure of the governing statutes.
Section 212(f) provides that under
certain circumstances, the President
may ‘‘suspend the entry of all aliens or
any class of aliens as immigrants or
nonimmigrants, or impose on the entry
of aliens any restrictions he may deem
to be appropriate.’’ INA 212(f), 8 U.S.C.
1182(f). Although this provision—first
enacted in 1952—‘‘grants the President
broad discretion,’’ it ‘‘operate[s]’’ only
in its ‘‘sphere[ ].’’ Trump v. Hawaii, 585
U.S. 667, 683–84, 695 (2018). Section
212 of the INA, 8 U.S.C. 1182 (entitled
‘‘Inadmissible aliens’’), generally
‘‘defines the universe of aliens who are
admissible’’ and ‘‘sets the boundaries of
admissibility into the United States.’’ Id.
at 695. Hence, when section 212(f)
authorizes the President to suspend
‘‘entry,’’ it ‘‘enabl[es] the President to
supplement the other grounds of
inadmissibility in the INA,’’ id. at 684
(citing Abourezk v. Reagan, 785 F.2d
1043, 1049 n.2 (D.C. Cir. 1986)), and to
bar individuals from entry into the
United States.
This authority, though broad, does not
authorize the President to override the
asylum statute.41 The asylum statute,
40 In 1984, then-Assistant Attorney General of the
Office of Legal Counsel Theodore B. Olson advised
that section 212(f) did not permit the President to
eliminate the asylum rights of noncitizens who had
hijacked a plane and, as a condition of the plane’s
release, been flown to the United States. And in
2018, the Departments reaffirmed that ‘‘[a]n alien
whose entry is suspended or restricted under . . .
a [section 212(f)] proclamation, but who
nonetheless reaches U.S. soil contrary to the
President’s determination that the alien should not
be in the United States, would remain subject to
various procedures under immigration laws,’’
including ‘‘expedited-removal proceedings’’ where
they could ‘‘raise any claims for protection.’’ Aliens
Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934, 55940 (Nov. 9,
2018). Although Presidents have invoked section
212(f) at least 90 times since 1981, to the
Departments’ knowledge, none of those
proclamations was understood to affect the right of
noncitizens on U.S. soil to apply for, or noncitizens’
statutory eligibility to receive, asylum. See Kelsey
Y. Santamaria et al., Cong. Rsch. Serv., Presidential
Authority to Suspend Entry of Aliens Under 8
U.S.C. 1182(f) (Feb. 21, 2024). At the same time,
nothing in the proclamations or the INA have
precluded the Departments from considering as an
adverse discretionary criterion that a noncitizen is
described in a section 212(f) proclamation.
41 The Supreme Court, though it has never
squarely addressed this issue, has also never
indicated that section 212(f) confers power to affect
asylum rights of those present in the United States.
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first enacted in the Refugee Act of 1980,
today provides that ‘‘[a]ny alien who is
physically present in the United States
or who arrives in the United States . . .
irrespective of such alien’s status, may
apply for asylum.’’ INA 208(a)(1), 8
U.S.C. 1158(a)(1). The right to apply for
asylum thus turns on whether a
noncitizen is ‘‘physically present’’ or
has ‘‘arrive[d] in the United States,’’ id.,
as those terms are properly understood,
and exists regardless of whether a
noncitizen is inadmissible.42 As a result,
the power under section 212(f) to
suspend ‘‘entry’’ does not authorize the
President to override the asylum rights
of noncitizens who have already
physically entered the United States and
who are entitled to an adjudication of
eligibility under the applicable statutory
and regulatory rules and standards.43
Cf., e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 174–77 (1993) (upholding a Coast Guard
program of intercepting migrant vessels and
returning migrants to their home country,
authorized in part by section 212(f), on the basis
that statutory rights under the withholding of
removal statute did not have ‘‘extraterritorial
application’’ to migrants who were not physically
present); Hawaii, 585 U.S. at 689, 695 (assuming,
without deciding, that section 212(f) ‘‘does not
allow the President to expressly override particular
provisions of the INA,’’ while emphasizing the
particular ‘‘sphere[ ]’’ in which it operates).
42 Section 212(f) contrasts with 42 U.S.C. 265,
which authorizes the CDC to temporarily suspend
‘‘the right to introduce . . . persons and property’’
into the United States if such suspension ‘‘is
required in the interest of the public health.’’
During the COVID–19 pandemic and to prevent the
‘‘serious danger of the introduction of [the] disease
into the United States,’’ 42 U.S.C. 265, the CDC
issued an order invoking section 265 to expel
certain noncitizens without allowing asylum
applications. As the final rule implementing section
265 explained, the provision is part of a ‘‘broad
public health statute’’ that ‘‘operates separately and
independently of the immigration power’’ and
authorizes the CDC ‘‘to temporarily suspend the
effect of any law . . . by which a person would
otherwise have the right to be introduced . . . into
the U.S.,’’ Control of Communicable Diseases;
Foreign Quarantine: Suspension of the Right To
Introduce and Prohibition of Introduction of
Persons Into United States From Designated Foreign
Countries or Places for Public Health Purposes, 85
FR 56424, 56426, 56442 (Sept. 11, 2020), including
the immigration laws, id. at 56426 (noting that
legislative history indicates that section 265 was
intended to suspend immigration if public health
required it). The drafting history of section 265 also
confirms that Congress conferred authority to
prohibit ‘‘the introduction of persons’’ in order to
broaden this provision and that this provision
subsumed but was not limited to the authority to
‘‘suspend immigration.’’ Br. for Appellants at 41–
43, Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C.
Cir. 2022) (No. 21–5200); see Huisha-Huisha, 27
F.4th at 730–31 (determining plaintiffs not likely to
succeed on their challenge to the CDC order on the
ground that it improperly suspended migrants’ right
to apply for asylum). Section 265 is a public-health
authority under the Public Health Service Act. Its
grant of authority to allow the CDC to temporarily
suspend immigration laws in case of a public health
emergency has no relevance to the interpretation of
section 212(f), which is in title 8.
43 For similar reasons, section 215(a) of the INA,
8 U.S.C. 1185(a), which the Proclamation also
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This rule, as discussed elsewhere, is
authorized because Congress has
conferred upon the Secretary and the
Attorney General express rulemaking
power to create new conditions and
limitations on asylum eligibility and
create certain procedures for
adjudicating asylum claims. INA
103(a)(1), (a)(3), (g), 208(b)(1)(A),
(b)(2)(C), (d)(5)(B), 8 U.S.C. 1103(a)(1),
(a)(3), (g), 1158(b)(1)(A), (b)(2)(C),
(d)(5)(B); INA 235(b)(1)(B)(iii)(III), (iv), 8
U.S.C. 1225(b)(1)(B)(iii)(III), (iv).
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C. Summary of Provisions of the IFR
This IFR adds provisions at 8 CFR
208.13(g), 208.35, 235.15, 1208.13(g),
and 1208.35 that effectuate three key
changes to the process for those seeking
asylum, statutory withholding of
removal, or protection under the CAT
during emergency border circumstances
giving rise to the suspension and
limitation on entry under the
Presidential Proclamation of June 3,
2024, Securing the Border (‘‘Presidential
Proclamation of June 3’’):
• During emergency border
circumstances, persons who enter across
the southern border and who are not
described in section 3(b) of the
Proclamation will be ineligible for
asylum unless they demonstrate by a
preponderance of the evidence that
exceptionally compelling circumstances
exist, including if the noncitizen
demonstrates that they or a member of
their family as described in 8 CFR
208.30(c) with whom they are 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.
• During emergency border
circumstances, rather than asking
invokes, does not authorize the President to impose
the condition and limitation on asylum eligibility
created by this rule. Cf. United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 540–47 (1950)
(holding that under the precursor to section
215(a)(1) of the INA and the presidential
proclamation and regulations issued pursuant to
that provision, which during times of national
emergency made it unlawful for ‘‘any alien to . . .
enter or attempt to . . . enter the United States
except under such reasonable rules, regulations,
and orders, and subject to such limitations and
exceptions as the President shall prescribe,’’ the
Attorney General could issue regulations governing
entry during such an emergency to ‘‘deny [certain
noncitizens] a hearing . . . in special cases’’
notwithstanding the ordinary exclusion hearing
provisions governing entry). This does not mean,
however, that the President could not invoke
section 215(a) as authority to impose reasonable
rules, regulations, and orders on asylum applicants
and asylees, such as travel document requirements
for re-entry and departure controls.
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specific questions of every noncitizen
encountered and processed for
expedited removal to elicit whether the
noncitizen may have a fear of
persecution or an intent to apply for
asylum, for those who enter across the
southern border and are not described
in section 3(b) of the Proclamation, DHS
will provide general notice regarding
the process for seeking asylum, statutory
withholding of removal, or protection
under the CAT and will refer a
noncitizen for a credible fear interview
only if the noncitizen manifests a fear of
return, expresses an intention to apply
for asylum or protection, or expresses a
fear of persecution or torture or a fear
of return to his or her country or the
country of removal.
• The limitation on asylum eligibility
will be applied during credible fear
interviews and reviews, and those who
enter across the southern border during
emergency border circumstances and
are not described in section 3(b) of the
Proclamation will receive a negative
credible fear determination with respect
to their asylum claim unless there is a
significant possibility the noncitizen
could demonstrate by a preponderance
of the evidence that exceptionally
compelling circumstances exist. Such
noncitizens will thereafter be screened
for a reasonable probability of
persecution because of a protected
ground or torture, a higher standard
than that applied to noncitizens in a
similar posture under the
Circumvention of Lawful Pathways rule.
The ‘‘reasonable probability’’ standard
is defined to mean substantially more
than a ‘‘reasonable possibility’’ but
somewhat less than more likely than
not.
As discussed throughout this IFR,
these changes are designed to
implement the policies and objectives of
the Proclamation by enhancing the
Departments’ ability to address historic
levels of migration and efficiently
process migrants arriving at the
southern border during emergency
border circumstances.
III. Discussion of the IFR
A. Current Framework
1. Asylum, Statutory Withholding of
Removal, and CAT Protection
Asylum is a discretionary benefit that
can be granted by the Secretary or the
Attorney General if a noncitizen
establishes, among other things, that
they have experienced past persecution
or have a well-founded fear of future
persecution on account of race, religion,
nationality, membership in a particular
social group, or political opinion. INA
208(b)(1)–(2), 8 U.S.C. 1158(b)(1)–(2)
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(providing that, unless subject to a
mandatory bar, the Secretary or
Attorney General ‘‘may’’ grant asylum to
refugees); INA 101(a)(42)(A), 8 U.S.C.
1101(a)(42)(A) (defining ‘‘refugee’’). As
long as they retain their asylee status,
noncitizens who are granted asylum (1)
cannot be removed or returned to their
country of nationality or, if they have no
nationality, their last habitual residence,
(2) receive employment authorization
incident to their status, (3) may be
permitted to travel outside of the United
States and return with prior consent,
and (4) may seek derivative benefits for
their spouses or children. INA 208(c)(1),
8 U.S.C. 1158(c)(1); see Johnson v.
Guzman Chavez, 594 U.S. 523, 536
(2021) (‘‘[A] grant of asylum permits an
alien to remain in the United States and
to apply for permanent residency after
one year[.]’’ (emphasis omitted)
(internal quotation marks and citation
omitted)); 8 CFR 274a.12(a)(5)
(employment authorization incident to
asylum status); 8 CFR 223.1(b) (allowing
for return to the United States after
travel with a requisite travel document
for a ‘‘person who holds . . . asylum
status pursuant to section 208 of the
Act’’); see also 6 U.S.C. 271(b)(3)
(transferring asylum functions to DHS);
6 U.S.C. 557 (providing that references
to any other officer shall be deemed to
refer to the ‘‘Secretary’’ with respect to
any transferred function); INA 208(b)(3),
8 U.S.C. 1158(b)(3) (derivative asylum
status).
Asylum applications are generally
classified as ‘‘affirmative’’ or
‘‘defensive’’ applications, depending on
the agency with which they are filed. If
a noncitizen is physically present in the
United States, not detained, and not in
section 240 removal proceedings, the
noncitizen may file an asylum
application with USCIS. These
applications are ‘‘affirmative’’ filings.
Generally, if the noncitizen is in section
240 removal proceedings before an IJ,
the noncitizen may apply for asylum
before the IJ as a defense to removal.44
These applications are ‘‘defensive’’
filings.
Noncitizens are eligible for asylum if
they have been persecuted or have a
well-founded fear of future persecution
in their country of nationality or, if they
have no nationality, their last habitual
residence, on account of one of five
protected grounds and are not subject to
a bar to eligibility. See generally INA
208, 8 U.S.C. 1158; INA 101(a)(42), 8
U.S.C. 1101(a)(42). To be granted
44 The only exception is that USCIS has initial
jurisdiction over asylum applications filed by a UC
even where the applicant is in section 240 removal
proceedings. INA 208(b)(3)(C), 8 U.S.C.
1158(b)(3)(C).
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asylum, eligible noncitizens must also
establish that they merit asylum in the
exercise of discretion. Id. Noncitizens
who are ineligible for a grant of asylum,
or who are denied asylum based on the
Attorney General’s or the Secretary’s
discretion, may qualify for other forms
of protection. An application for asylum
submitted by a noncitizen in section 240
removal proceedings is also considered
an application for statutory withholding
of removal under section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3). See 8 CFR
1208.3(b), 1208.13(c)(1). An IJ also may
consider a noncitizen’s eligibility for
statutory withholding of removal and
CAT protection under regulations
issued pursuant to the implementing
legislation regarding the obligations of
the United States under Article 3 of the
CAT. FARRA sec. 2242(b) (codified at 8
U.S.C. 1231 note); 8 CFR 1208.3(b),
1208.13(c)(1); see also 8 CFR 1208.16(c),
1208.17.
Statutory withholding of removal and
CAT protection preclude removing a
noncitizen to any country where the
noncitizen would ‘‘more likely than
not’’ face persecution or torture,
meaning that the noncitizen’s life or
freedom would be threatened because of
a protected ground or that the
noncitizen would be tortured. 8 CFR
1208.16(b)(2), (c)(2). Thus, if a
noncitizen establishes that it is more
likely than not that their life or freedom
would be threatened because of a
protected ground, but is denied asylum
for some other reason, the noncitizen
nonetheless may be entitled to statutory
withholding of removal if not otherwise
barred from that form of protection. INA
241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8
CFR 208.16, 1208.16. Likewise, a
noncitizen who establishes that they
more likely than not will face torture in
their country of removal will qualify for
CAT protection. See 8 CFR 208.16(c),
208.17(a), 1208.16(c), 1208.17(a).
In contrast to the more generous
benefits available by attaining asylum,
statutory withholding of removal and
CAT protection do not: (1) prohibit the
Government from removing the
noncitizen to a third country where the
noncitizen would not face the requisite
likelihood of persecution or torture
(even in the absence of an agreement
with that third country); (2) create a
path to lawful permanent resident
status; or (3) afford the same ancillary
benefits, such as derivative protection
for family members. See, e.g., Guzman
Chavez, 594 U.S. at 536
(‘‘distinguish[ing] withholding-only
relief from asylum’’ on the ground that
withholding does not preclude the
Government from removing the
noncitizen to a third country and does
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not provide the noncitizen any
permanent right to remain in the United
States); Matter of A–K–, 24 I&N Dec.
275, 279 (BIA 2007) (stating that ‘‘the
Act does not permit derivative
withholding of removal under any
circumstances’’); INA 208(b)(3)(A), 8
U.S.C. 1158(b)(3)(A) (statutory provision
allowing asylum status to be granted to
accompanying or following-to-join
spouse or children of a noncitizen
granted asylum; no equivalent statutory
or regulatory provision for individuals
granted withholding or deferral of
removal).
2. Expedited Removal and Screenings in
the Credible Fear Process
In the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
(‘‘IIRIRA’’), Public Law 104–208, div. C,
110 Stat. 3009, 3009–546, Congress
established the expedited removal
process. The process is applicable to
certain noncitizens present or arriving
in the United States (and, in the
discretion of the Secretary, certain other
designated classes of noncitizens) who
are found to be inadmissible under
either section 212(a)(6)(C) of the INA, 8
U.S.C. 1182(a)(6)(C), which renders
inadmissible noncitizens who make
certain material misrepresentations, or
section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), which renders inadmissible
noncitizens who lack documentation
requirements for admission. INA
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i).
Upon being subject to expedited
removal, such noncitizens may be
‘‘removed from the United States
without further hearing or review unless
the [noncitizen] indicates either an
intention to apply for asylum . . . or a
fear of persecution.’’ Id.
Congress created a screening process,
known as ‘‘credible fear’’ screening, to
identify potentially valid claims for
asylum by noncitizens in expedited
removal proceedings. The Departments
have used the same screening process to
identify potentially valid claims for
statutory withholding of removal and
CAT protection. If a noncitizen
indicates a fear of persecution or torture,
a fear of return, or an intention to apply
for asylum during the course of the
expedited removal process, DHS refers
the noncitizen to a USCIS AO to
determine whether the noncitizen has a
credible fear of persecution or torture in
the country of citizenship or removal.
INA 235(b)(1)(A)(ii), (B), 8 U.S.C.
1225(b)(1)(A)(ii), (B); see also 8 CFR
235.3(b)(4). A noncitizen has a ‘‘credible
fear of persecution’’ if ‘‘there is a
significant possibility, taking into
account the credibility of the statements
made by the alien in support of the
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alien’s claim and such other facts as are
known to the officer, that the alien
could establish eligibility for asylum.’’
INA 235(b)(1)(B)(v), 8 U.S.C.
1225(b)(1)(B)(v). If the AO determines
that the noncitizen does not have a
credible fear of persecution or torture,
the noncitizen may request that an IJ
review that determination. See INA
235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g),
208.33(b)(2)(v), 1208.30(g).
If the AO (or an IJ reviewing the AO’s
decision) determines that a noncitizen
has a credible fear of persecution or
torture, USCIS can refer the noncitizen
to an immigration court for adjudication
of the noncitizen’s claims in section 240
removal proceedings, 8 CFR 208.30(f), 8
CFR 1208.30(g)(2)(iv)(B), and the
noncitizen may subsequently file a
defensive asylum application with the
court during those proceedings, see 8
CFR 1240.1(a)(1)(ii). Alternatively,
USCIS can retain jurisdiction over the
application for asylum for further
consideration in an asylum merits
interview. See 8 CFR 208.30(f). During
an asylum merits interview, a positive
credible fear determination is treated as
the asylum application, and strict
timelines thereafter govern the
applicant’s case before both USCIS and
EOIR. See 8 CFR 208.2(a)(1)(ii),
208.3(a)(2), 208.4(b)(2), 208.9(a)(1),
(e)(1)–(2), (g)(2), (i), 1240.17. The AO
may grant asylum, subject to review
within USCIS, where the noncitizen is
eligible and warrants a grant as a matter
of discretion. 8 CFR 208.14(b). If the
noncitizen is not eligible or does not
warrant a grant of asylum as a matter of
discretion, the AO refers the application
to EOIR. 8 CFR 208.14(c)(1). Where
USCIS does not grant asylum, the AO’s
decision will also include a
determination on eligibility for statutory
withholding of removal and CAT
protection based on the record before
USCIS. 8 CFR 208.16(a), (c)(4).
For cases referred to EOIR following
an asylum merits interview, the written
record of the positive credible fear
determination serves as the asylum
application, 8 CFR 1240.17(e), and the
record the AO developed during the
asylum merits interview, as
supplemented by the parties, serves as
the record before the IJ, 8 CFR
1240.17(c), (f)(2)(i)(A)(1), (f)(2)(ii)(B).
The IJ reviews applications for asylum
de novo and also reviews applications
for statutory withholding of removal
and CAT protection de novo where
USCIS found the noncitizen ineligible
for such protection. 8 CFR 1240.17(i)(1).
However, where USCIS found the
noncitizen eligible for statutory
withholding of removal or CAT
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protection, IJs must give effect to
USCIS’s eligibility determination unless
DHS demonstrates, through evidence or
other testimony that specifically
pertains to the noncitizen and was not
in the record of proceedings for the
asylum merits interview, that the
noncitizen is not eligible for such
protection. 8 CFR 1240.17(i)(2). With a
limited exception, DHS may not appeal
the grant of any protection for which the
AO determined the noncitizen eligible.
Id.
3. Lawful Pathways Condition on
Asylum Eligibility
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On March 20, 2020, the Director of the
Centers for Disease Control and
Prevention (‘‘CDC’’) issued an order
under 42 U.S.C. 265 and 268
suspending the introduction of certain
noncitizens from foreign countries or
places where the existence of a
communicable disease creates a serious
danger of the introduction of such
disease into the United States and the
danger is so increased by the
introduction of persons from the foreign
country or place that a temporary
suspension of such introduction is
necessary to protect the public health.45
The CDC’s Title 42 public health Order
was extended multiple times.46 While
the Title 42 public health Order was in
effect, noncitizens who did not have
proper travel documents were generally
not processed into the United States;
they were instead 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 INA. Circumvention
of Lawful Pathways, 88 FR 11704, 11705
(Feb. 23, 2023) (‘‘Circumvention of
Lawful Pathways NPRM’’). In early
2023, the President announced that the
Administration expected to end the
public health emergency on May 11,
2023, which would cause the thenoperative Title 42 public health Order to
end. See id. at 11708.
45 CDC, Order Under Sections 362 & 365 of the
Public Health Services Act (42 U.S.C. 265, 268):
Order Suspending Introduction of Certain Persons
from Countries Where a Communicable Disease
Exists (Mar. 20, 2020), https://www.cdc.gov/
quarantine/pdf/CDC-Order-ProhibitingIntroduction-of-Persons_Final_3-20-20_3-p.pdf.
46 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[ed] 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’’).
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As the Departments stated in the
Circumvention of Lawful Pathways rule,
absent further action, the end of the
Title 42 public health Order was
expected to cause encounters with
noncitizens seeking to enter the United
States at the SWB to rise to or remain
at all-time highs—as high as 11,000
migrants daily. 88 FR at 31331, 31315.
And many of these individuals would
be entitled to remain in the United
States pending resolution of their
asylum and protection claims. See INA
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii)
(not allowing for removal of those found
to have a credible fear pending further
consideration of the asylum claim); see
also 88 FR at 31363 (noting that ‘‘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’’). The Departments thus faced a
looming urgent situation: absent policy
change, the end of the Title 42 public
health Order was expected to result in
many more migrants crossing the border
and asserting claims of fear or seeking
protection, which would in turn exceed
the border security and immigration
systems’ capacity to process migrants in
a safe, expeditious, and orderly way.
See 88 FR at 31363. To address this
expected increase in the number of
migrants at the SWB and adjacent
coastal borders seeking to enter the
United States without authorization, the
Departments promulgated the
Circumvention of Lawful Pathways rule.
See 88 FR 31314.
The Circumvention of Lawful
Pathways rule, which became effective
on its public inspection date, May 11,
2023, id., and applies to those who enter
during a two-year period, imposes a
rebuttable presumption of asylum
ineligibility on certain noncitizens who
fail to pursue safe, orderly, and lawful
processes for entry into the United
States or seek protection in another
qualifying country through which they
traveled. 8 CFR 208.33(a), 1208.33(a).
The rebuttable presumption applies to
noncitizens who enter the United States
from Mexico at the SWB or adjacent
coastal borders without documents
sufficient for lawful admission where
the entry is: (1) between May 11, 2023,
and May 11, 2025; (2) subsequent to the
end of implementation of the Title 42
public health Order issued on August 2,
2021, and related prior orders issued
pursuant to the authorities in 42 U.S.C.
265 and 268 and the implementing
regulation at 42 CFR 71.40; and (3) after
the noncitizen traveled through a
country other than their country of
citizenship, nationality, or, if stateless,
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last habitual residence, that is a party to
the Refugee Convention or Refugee
Protocol. 8 CFR 208.33(a)(1),
1208.33(a)(1).
The presumption does not apply to
UCs or to noncitizens who availed
themselves of or were traveling with a
family member who availed themselves
of certain safe, orderly, and lawful
pathways—specifically those who (1)
received 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 but who
can demonstrate 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. 8 CFR
208.33(a)(2), 1208.33(a)(2). Noncitizens
may also overcome the presumption by
demonstrating by a preponderance of
the evidence that ‘‘exceptionally
compelling circumstances exist.’’ 8 CFR
208.33(a)(3)(i), 1208.33(a)(3)(i). Such
circumstances necessarily exist where,
at the time of entry, the noncitizen or a
family member 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) was a victim of a severe form of
trafficking in persons under 8 CFR
214.11(a). 8 CFR 208.33(a)(3)(i)(A)–(C),
(ii), 1208.33(a)(3)(i)(A)–(C), (ii). A
noncitizen presumed ineligible for
asylum under the rule may still apply
for statutory withholding of removal or
CAT protection and thus may not be
removed to a country where it is more
likely than not that they will be
persecuted because of a protected
ground or tortured.
The condition on asylum eligibility in
the Circumvention of Lawful Pathways
rule (‘‘Lawful Pathways condition’’)
applies to asylum applications before
USCIS and EOIR. 8 CFR 208.13(f),
1208.13(f). It also applies during
credible fear screenings. 8 CFR
208.33(b), 1208.33(b). Noncitizens
subject to expedited removal who
indicate a fear of persecution or an
intention to apply for asylum are
currently first screened to assess
whether the rebuttable presumption
applies and, if so, whether the
noncitizen is able to rebut the
presumption. 8 CFR 208.33(b). If the AO
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determines that the rebuttable
presumption does not apply or the
noncitizen has rebutted the
presumption, the general procedures
governing the credible fear process then
apply. See 8 CFR 208.33(b)(1)(ii). On the
other hand, if the AO determines that
the noncitizen is covered by the
rebuttable presumption and no 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 8
CFR 208.33(b)(1)(i), (b)(2). The
Circumvention of Lawful Pathways rule
currently provides that, if a noncitizen
has established a reasonable possibility
of persecution or torture, then DHS will
issue a notice to appear (‘‘NTA’’) to
commence section 240 removal
proceedings and may not refer the case
to the asylum merits interview process.
8 CFR 208.33(b)(2)(ii).
Where a noncitizen requests review
by an IJ, the IJ reviews the negative
credible fear finding de novo. See 8 CFR
1208.33(b). If the IJ determines that the
noncitizen has made a sufficient
showing that the rebuttable
presumption does not apply to them or
that they can rebut the presumption,
and that the noncitizen has established
a significant possibility of eligibility for
asylum, statutory withholding of
removal, or CAT protection, the IJ issues
a positive credible fear finding and the
case proceeds under existing
procedures. See 8 CFR
208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If
the IJ determines that the noncitizen is
covered by the rebuttable presumption
and it has not been rebutted, but the
noncitizen has established a reasonable
possibility of persecution or torture, the
IJ issues a positive credible fear finding
and DHS will issue an NTA to
commence section 240 removal
proceedings. 8 CFR 208.33(b)(2)(v)(B),
1208.33(b)(2)(ii). And finally, if the IJ
issues a negative credible fear
determination, the case is returned to
DHS for removal of the noncitizen. See
8 CFR 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
USCIS reconsider the AO’s negative
determination, although USCIS may, in
its sole discretion, reconsider a negative
determination. See 8 CFR
208.33(b)(2)(v)(C).
A noncitizen who has not established
during expedited removal proceedings a
significant possibility of eligibility for
asylum because of the Lawful Pathways
condition may, if placed in section 240
removal proceedings, apply for asylum,
statutory withholding of removal, or
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CAT protection, or any other form of
relief or protection for which the
noncitizen is eligible. See 8 CFR
1208.33(b)(4). Where a principal asylum
applicant in section 240 removal
proceedings is eligible for statutory
withholding of removal or withholding
of removal under the CAT and would be
granted asylum but for the rebuttable
presumption, and where either an
accompanying spouse or child does not
independently qualify for asylum or
other protection from removal or the
principal asylum applicant has a spouse
or child who would be eligible to follow
to join that applicant, the presumption
shall be deemed rebutted as an
exceptionally compelling circumstance.
8 CFR 1208.33(c).
B. Justification
1. Global Migration at Record Levels
Border encounters in the 1980s,
1990s, and 2000s consisted
overwhelmingly of single adults from
Mexico, most of whom were migrating
for economic reasons.47 Beginning in
the 2010s, a growing share of migrants
were from northern Central America 48
and, since the late 2010s, from countries
throughout the Americas.49 Since 2010,
47 See 88 FR at 11708. According to OHSS Persist
data and historic Office of Immigration Statistics
(‘‘OIS’’) Yearbooks of Immigration Statistics,
Mexican nationals accounted for 87 to over 99
percent of apprehensions between POEs of persons
entering without inspection between 1981 and
2010. See March 2024 OHSS Persist Dataset; see,
e.g., INS, 1981 Statistical Yearbook of the
Immigration and Naturalization Service 119 tbl. 53
(1981); INS, 1999 Statistical Yearbook of the
Immigration and Naturalization Service 208–11 tbl.
56 (Mar. 2002), https://www.dhs.gov/sites/default/
files/publications/Yearbook_Immigration_
Statistics_1999.pdf. For more information about
Mexican migrants’ demographics and economic
motivations during some of that time period, see
Jorge Durand et al., The New Era of Mexican
Migration to the United States, 86 J. Am. Hist. 518,
525–27, 530–31, 535–36 (1999).
48 Northern Central America refers to El Salvador,
Guatemala, and Honduras. 88 FR at 11708 n.35.
49 According to OHSS Persist data, Mexican
nationals continued to account for 89 percent of
total CBP SWB encounters in FY 2010, with
northern Central Americans accounting for 8
percent and all other nationalities accounting for 3
percent. March 2024 OHSS Persist Dataset.
Northern Central Americans’ share of total CBP
SWB encounters increased to 21 percent by FY
2012 and averaged 48 percent from FY 2014 to FY
2019, the last full year before the start of the
COVID–19 pandemic. Id. Nationals from all other
countries except Mexico and the northern Central
American countries accounted for an average of 5
percent of total CBP SWB encounters from FY 2010
to FY 2013, and for 10 percent of total encounters
from FY 2014 to FY 2019. Id. This transition has
accelerated since the start of FY 2021, as Mexican
nationals accounted for approximately 32 percent of
total CBP SWB encounters in FY 2021 through
March 2024, including roughly 29 percent in the
first six months of FY 2024; northern Central
Americans accounted for roughly 25 percent from
FY 2021 through March 2024 (20 percent in FY
2024 through March 2024); and all other countries
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the makeup of border crossers has
significantly changed, expanding from
Mexican single adults to single adults
and families from the northern Central
American countries, and now to single
adults and families from throughout the
hemisphere (and beyond). Those
encountered also have been more likely
to seek asylum and other forms of relief
or protection, straining the Departments’
capacity to process individuals through
expedited removal.50
In the early 2010s, U.S. Border Patrol
(‘‘USBP’’) encounters along the SWB
reached modern lows, averaging fewer
than 400,000 per year from 2011 to
2018. See 88 FR at 11708. This followed
decades during which annual USBP
encounters routinely numbered in the
millions; however, the overall share of
those who were processed for expedited
removal and claimed a fear never
exceeded 2 percent until 2011. Id. at
11708, 11716. Despite these historically
low encounter numbers, the
Departments faced significant
challenges in 2014 due to an
unprecedented surge in migration by
UCs and in 2016 due to a surge in
family units at the border—
demographics that present unique
challenges due to their vulnerability.51
From FY 2017 to FY 2019, however,
encounters between the POEs along the
SWB more than doubled, to more than
850,000, and—following a significant
drop during the beginning of the
COVID–19 pandemic—continued to
increase in FY 2021 and FY 2022.52 In
FY 2021, USBP encounters between
POEs along the SWB reached a level not
seen since the early 2000s—over 1.6
million.53 In FY 2022, encounters at the
accounted for roughly 42 percent from FY 2021
through March 2024, including roughly 51 percent
of FY 2024 encounters through March 2024. Id.
50 For noncitizens encountered at the SWB from
FY 2014 to FY 2019 who were placed in expedited
removal proceedings, roughly 6 percent of Mexican
nationals made fear claims that were referred to
USCIS for determination compared to roughly 57
percent of people from northern Central America
and 90 percent of all other nationalities. OHSS
analysis of Enforcement Lifecycle data as of
December 31, 2023; see also 88 FR at 11709 n.37.
51 Decl. of Blas Nuñez-Neto ¶ 6, E. Bay Sanctuary
Covenant v. Biden, No. 18–cv–6810 (N.D. Cal. June
16, 2023) (Dkt. 176–2).
52 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (providing historic data
on SWB encounters).
53 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (providing historic data
on SWB encounters).
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SWB reached a new high-water mark,
with total USBP encounters exceeding
2.2 million.54 FY 2023 saw a slight drop,
but USBP encounters remained high—
over 2.0 million.55 By early 2023, while
the Title 42 public health Order was in
place, total encounters at the SWB—
referring to the number of times U.S.
officials encountered noncitizens
attempting to cross the SWB without
authorization to do so either between or
at POEs—had reached all-time highs.56
This dramatic increase in encounters
has coincided with a substantial and—
setting aside the period of time when
the Title 42 public health Order was in
effect—persistent increase in the
number of noncitizens making fear
claims in recent years. See 88 FR at
11716.57 In 2019—prior to the
implementation of the Title 42 public
health Order—44 percent of noncitizens
encountered at the SWB placed in
expedited removal proceedings claimed
fear, resulting in 98,000 credible fear
screenings. Id. The number of fear
54 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (providing historic data
on SWB encounters).
55 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (providing historic data
on SWB encounters).
56 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (providing historic data
on SWB encounters). During the initial seven
months of FY 2023, while the Title 42 public health
Order was still in effect, total CBP encounters
surged to an all-time high of 1.4 million—an 11
percent increase over the same period in FY 2022
and nearly double the encounters recorded in FY
2021 for the same time period.
57 The percentage of noncitizens encountered at
and between SWB POEs processed for expedited
removal who made fear claims steadily rose from
16 percent in FY 2013 to 44 percent in FY 2019,
experienced a temporary dip in FY 2020 at the start
of the Title 42 public health Order, and then
resumed an upward trajectory, reaching a peak of
59 percent in FY 2023, marking the highest level
of fear claims as a share of the SWB expedited
removal population ever recorded. See OHSS
Enforcement Lifecycle as of December 31, 2023;
March 2024 OHSS Persist Dataset. Data on the exact
number of noncitizens encountered at the SWB
processed for expedited removal who made fear
claims is not available for years prior to FY 2013,
but OHSS estimates that about 84 percent of all fear
claims made in prior years were made by
noncitizens encountered at and between SWB
POEs. Even if 100 percent of fear claims made
before FY 2013 were made by noncitizens
encountered at the SWB, the level of fear claims as
a share of SWB encounters at and between POEs
processed for expedited removal in 2023 would be
the highest ever.
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claims returned to these historically
high levels after the Title 42 public
health Order ended. From May 2023
through March 2024, approximately 54
percent of noncitizens encountered at
and between SWB POEs who were
subject to expedited removal claimed
fear (approximately 169,000 fear claims
out of 315,000 noncitizens processed for
expedited removal, excluding cases
processed for expedited removal but
reprocessed into other dispositions by
ICE).58 These high numbers of both
encounters and fear claims combine to
further compound the significant stress
on the immigration system.
Much of this growth in encounters
was driven by nationalities that DHS
had never before encountered in large
numbers at the border—including
nationals of countries such as Brazil,
Colombia, Cuba, Ecuador, Haiti,
Nicaragua, Peru, and Venezuela, as well
as migrants from Eastern Hemisphere
countries.59 Because of this, DHS has
had to undertake a focused diplomatic
effort, working closely with the
Department of State, to enter into
commitments with countries to facilitate
the return of their nationals. However,
despite this concerted effort, it remains
difficult for DHS to repatriate nationals
of some of these countries who do not
establish a legal basis to remain in the
United States, including those from the
Eastern Hemisphere—substantially
limiting DHS’s ability to impose
consequences on those nationals.60
Overall, countries other than Mexico
and the northern Central American
countries of El Salvador, Guatemala,
and Honduras accounted for 43 percent
of total SWB encounters from January
2021 to March 2024—including 51
percent of total SWB encounters in FY
2023 and in the first two quarters of FY
2024—up from 10 percent from FY 2014
58 OHSS analysis of data downloaded from CBP
UIP on April 2, 2024.
59 Nationals from all countries other than Mexico
and the northern Central American countries
accounted for less than 5 percent of total CBP SWB
encounters each year between FY 1981 and FY
2010, an average of 5 percent of SWB encounters
from FY 2010 to FY 2013, and 10 percent of total
SWB encounters from FY 2014 to FY 2019. The
increase in encounters from these new countries of
origin has accelerated since the start of FY 2021, as
non-Mexican, non-northern Central American
countries accounted for 42 percent of encounters
from the start of FY 2021 through the second
quarter of FY 2024, including 51 percent of FY 2024
encounters through March 2024. OHSS analysis of
historic OIS Yearbooks of Immigration Statistics
and March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘SW Border Encounters by Citizenship’’).
60 See 88 FR at 11708–11.
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to December 2020.61 Encounters of
Mexican nationals have fallen to 29
percent of total SWB encounters during
this time frame—an enormous change
from historical trends that has sweeping
ramifications for the border and
immigration system, which are detailed
below.62
The increase in migration at the SWB
is consistent with global and regional
trends. Over the past three years,
migration around the world has reached
levels not seen since World War II.63
The Western Hemisphere is no
exception and has been facing historic
levels of migration that have severely
strained the immigration systems of
countries throughout the region.64 There
is a growing consensus within the
region that this shared challenge cannot
be solved without collective action—a
consensus reflected by the 22 countries
that have supported the Los Angeles
Declaration on Migration and
Protection, which proposes a
comprehensive approach to managing
migration throughout the region.65
61 March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by Agency and
Selected Citizenship’’).
The application of title 42 authorities at the SWB
also altered migratory patterns, in part by
incentivizing individuals who were expelled—
without being issued a removal order, which,
unlike a title 42 expulsion, carries immigration
consequences—to try to re-enter, often multiple
times. See 88 FR at 11709. The majority of repeat
encounters were of Mexican and northern Central
American nationals, who were much more likely
than others to be expelled to the Mexican side of
the U.S.-Mexico border—between FY 2020 and FY
2023, 72 percent of Mexican and 50 percent of
northern Central American encounters at and
between SWB POEs resulted in title 42 expulsion,
contrasting sharply with 8 percent of non-Mexican
and non-northern Central American encounters
experiencing similar outcomes. March 2024 OHSS
Persist Dataset; see also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (‘‘CBP SW Border
Encounters Book-Outs by Selected Citizenship’’).
Even accounting for increased repeat encounters,
unique encounters at and between SWB POEs also
hit all-time highs in each year from FY 2021 to FY
2023. Nationals of countries other than Mexico and
the northern Central America countries account for
an even larger share of the growth in unique
encounters, comprising 51 percent of unique
encounters from January 2021 to March 2024, up
from 9 percent in FY 2014 to December 2020.
March 2024 OHSS Persist Dataset.
62 March 2024 OHSS Persist Dataset.
63 Decl. of Blas Nuñez-Neto ¶ 2, M.A. v.
Mayorkas, No. 23–cv–1843 (D.D.C. Oct. 27, 2023)
(Dkt. 53–1).
64 See 88 FR at 11710–11.
65 See The White House, Los Angeles Declaration
on Migration and Protection (June 10, 2022),
https://www.whitehouse.gov/briefing-room/
statements-releases/2022/06/10/los-angelesdeclaration-on-migration-and-protection/.
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As it prepared for the return to title
8 processing of all noncitizens, DHS led
a comprehensive, all-of-government
planning and preparation effort that
lasted more than 18 months.66 This
included record deployments of
personnel, infrastructure, and resources
to support DHS’s frontline personnel at
a substantial cost to other DHS
operations.67 This effort also included
the development and implementation of
policy measures, including the joint
DHS and DOJ Circumvention of Lawful
Pathways rule and complementary
measures, which were critically
important components of DHS
preparations to manage the anticipated
significant influx of migrants associated
with the end of the Title 42 public
health Order’s application at the
border.68 And the United States
Government’s efforts were
complemented by a range of measures
taken by foreign partners in the region,
such as Mexico’s independent decision
to continue to accept the return of
certain non-Mexican migrants after May
11, 2023,69 and campaigns by Colombia
and Panama to attack smuggling
networks operating in the Darién Gap.70
The Circumvention of Lawful
Pathways rule has strengthened the
consequences in place for those who
cross the border irregularly and is a
critical component of the Government’s
regional strategy. DHS has also put in
place complementary measures to
streamline expedited removal
processing to more quickly apply
consequences to those who fail to use
lawful pathways. These measures
include holding noncitizens processed
for expedited removal for the pendency
of their credible fear interviews in CBP
facilities to maximize the use of
expedited removal and limit noncitizens
absconding; 71 changing the
consultation period such that credible
fear interviews take place no earlier
than 24 hours after the noncitizen’s
acknowledgement of receipt of
information explaining the credible fear
process; 72 returning certain thirdcountry nationals to Mexico, consistent
66 Decl. of Blas Nuñez-Neto ¶ 8, E. Bay Sanctuary
Covenant v. Biden, No. 18–cv–6810 (N.D. Cal. June
16, 2023) (Dkt. 176–2).
67 Id.
68 Id.
69 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/.
70 Decl. of Blas Nuñez-Neto ¶ 40, M.A. v.
Mayorkas, No. 23–cv–1843 (D.D.C. Oct. 27, 2023)
(Dkt. 53–1).
71 Id. ¶ 5.
72 Id.
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with established processes under the
INA; 73 permitting certain non-Mexican
citizens to withdraw their application
for admission and voluntarily return to
Mexico; 74 and increasing USCIS’s
capacity to train and prepare additional
staff temporarily detailed as AOs to
conduct credible fear interviews.75
These measures, combined with existing
processes and resources and work with
regional and international partners to
disrupt irregular migration and
smuggling networks, seek to form a
comprehensive framework for managing
migratory flows to the border—one that
seeks to disincentivize noncitizens from
putting their lives in the hands of
callous smugglers by crossing the SWB
between POEs and to incentivize
noncitizens to use lawful, safe, and
orderly pathways and processes instead.
Without the Circumvention of Lawful
Pathways rule and complementary
measures, DHS assesses that irregular
migration at the border would be
substantially higher today. DHS saw
evidence of very high levels of irregular
migration in the days leading up to the
end of the Title 42 public health Order
on May 11, 2023.76 A historic surge in
migration culminated with what were
then the highest recorded encounter
levels in U.S. history over the days
immediately preceding May 11, which
placed a significant strain on DHS’s
operational capacity at the border.77
Encounters between POEs almost
doubled from an average of
approximately 4,900 per day the week
ending April 11, 2023, to an average of
approximately 9,500 per day the week
ending May 11, 2023, including an
average of approximately 10,000
encounters immediately preceding the
termination of the Title 42 public health
Order (from May 8 to May 11).78 The
73 See, e.g., The White House, Mexico and United
States Strengthen Joint Humanitarian Plan on
Migration (May 2, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/
(noting the United States and Mexico’s commitment
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, and noting that Mexico will continue to
accept back migrants on humanitarian grounds).
74 Decl. of Blas Nuñez-Neto ¶ 5, M.A. v.
Mayorkas, No. 23–cv–1843 (D.D.C. Oct. 27, 2023)
(Dkt. 53–1).
75 Id.
76 Decl. of Blas Nuñez-Neto ¶ 9, E. Bay Sanctuary
Covenant v. Biden, No. 18–cv–6810 (N.D. Cal. June
16, 2023) (Dkt. 176–2); Decl. of Matthew J. Hudak
¶ 11, Florida v. Mayorkas, No. 22–cv–9962 (N.D.
Fla. May 12, 2023) (Dkt. 13–1).
77 Decl. of Blas Nuñez-Neto ¶ 9, E. Bay Sanctuary
Covenant v. Biden, No. 18–cv–6810 (N.D. Cal. June
16, 2023) (Dkt. 176–2).
78 Id.
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sharp increase in encounters between
POEs during the 30 days preceding May
11 represented the largest month-overmonth increase in almost two decades—
since January 2004.79
As a consequence of the elevated
flows USBP experienced in the days
leading up to the end of the Title 42
public health Order, USBP saw a steady
increase in the numbers of noncitizens
in custody, leading to significant
operational challenges.80 From May 8 to
11, 2023, USBP’s daily in-custody
average was approximately 27,000
noncitizens, with a single-day peak of
approximately 28,500 on May 10—well
above its holding capacity at that time
of approximately 18,500.81 During this
same time frame, eight out of nine SWB
sectors were over their holding
capacity—with four sectors (El Centro,
El Paso, Rio Grande Valley, and Yuma)
at more than 50 percent over their
holding capacity and one sector
(Tucson) at more than two-and-a-half
times over its holding capacity.82
This record number of encounters
between POEs severely strained DHS
operations and resources, as well as the
resources of other Federal Government
agencies, local communities, and nongovernmental organizations (‘‘NGOs’’).83
CBP redirected limited resources from
other mission needs—in particular,
legitimate travel and trade operations,
the volume of which by that time had
surpassed pre-pandemic levels—to
focus on processing apprehended
noncitizens.84 Overcrowding in CBP
facilities increased the potential for
health and safety risks to noncitizens,
Government personnel, and contract
support staff. Such risks were
exacerbated by an increase in the
average time in custody, which
generally occurs when there are large
numbers of noncitizens in custody who
must be processed.85 To manage these
conditions, USBP sectors redirected
personnel from the field to perform
tasks for noncitizens in custody,
including processing, transporting, and
escorting noncitizens.86 This, in turn,
decreased USBP’s ability to respond to
noncitizens avoiding detection, other
agency calls for assistance, and
noncitizens in distress.87
The surge in encounters between
POEs immediately preceding the end of
the Title 42 public health Order also led
79 Id.
80 Id.
¶ 10.
81 Id.
82 Id.
83 Id.
¶ 11.
84 Id.
85 Id.
86 Id.
87 Id.
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to significant challenges for local border
communities.88 For example, in the
days leading up to May 11, 2023, local
community resources in El Paso, Texas,
were quickly overwhelmed as the
number of noncitizens arriving in the
United States surpassed the city’s
capacity.89 In anticipation of an influx
of noncitizens arriving to the city—an
influx that ultimately materialized—the
city declared a state of emergency, as
more than 1,000 noncitizens were
sleeping on the sidewalks and left
without shelter.90 Similarly, the cities of
Brownsville and Laredo, Texas,
declared states of emergency to allow
them to seek additional resources to
bolster their capacities.91 The surge in
encounters also placed strain on interior
cities. In May 2023, for instance, New
York’s Governor declared a State
Disaster Emergency.92
Since their implementation in May
2023, the Circumvention of Lawful
Pathways rule and complementary
measures have helped DHS to better
manage migratory flows. Between May
12, 2023, and March 31, 2024, CBP
placed into expedited removal more
than 970 individuals encountered at and
between POEs each day on average, and
USCIS conducted a record number of
credible fear interviews (more than
152,000) resulting from such cases. This
is more interviews from SWB
encounters at and between POEs during
the span of ten and a half months than
in any full fiscal year prior to 2023, and
more than twice as many as the annual
average from FY 2010 to FY 2019.93 On
average, since May 12, 2023, USCIS has
completed approximately 3,300 cases
each week, more than double its average
weekly completed cases from FY 2014
to FY 2019.94 In addition, in FY 2023,
IJs conducted over 38,000 credible fear
and reasonable fear reviews, the highest
figure on record since at least 2000.95
88 Id.
¶ 12.
89 Id.
90 Id.
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91 Id.
92 See N.Y. Exec. Order No. 28, Declaring a
Disaster Emergency in the State of New York (May
9, 2023), https://www.governor.ny.gov/executiveorder/no-28-declaring-disaster-emergency-statenew-york; see also Mayor of Chicago Emergency
Exec. Order No. 2023–2 (May 9, 2023).
93 Pre-May 12, 2023, data from OHSS Lifecycle
Dataset; post-May 11, 2023, data from OHSS
analysis of data downloaded from UIP on April 2,
2024.
94 Completed cases are those with credible fear
interviews that have been adjudicated or that have
been closed. Pre-May 12, 2023, data from OHSS
Lifecycle Dataset; post-May 11, 2023, data from
OHSS analysis of data downloaded from UIP on
April 2, 2024.
95 EOIR, Adjudication Statistics: Credible Fear
and Reasonable Fear Review Decisions (Apr. 27,
2023), https://www.justice.gov/eoir/media/1344816/
dl?inline.
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These efforts have significantly reduced
the median time to process credible fear
cases. Since May 12, 2023, the median
time to refer noncitizens claiming a fear
for credible fear interviews decreased by
77 percent from its historical average,
from 13 days in the FY 2014 to FY 2019
pre-pandemic period to 3 days in the
four weeks ending March 31, 2024; for
those who receive negative fear
determinations, the median time from
encounter to removal, in the same time
frames, decreased by 85 percent from 73
days to 11 days.96
The increase in referrals into
expedited removal proceedings,
combined with the streamlining of the
process, has had tangible results. From
May 12, 2023, to March 31, 2024, DHS
removed more than 662,000
individuals—more removals than in any
full fiscal year since 2013 and an
indication that the increased efficiencies
gained through these measures have
enabled DHS to swiftly impose
immigration consequences when
individuals do not establish a legal basis
to remain in the United States.97 Over
the first six months immediately
following May 12, 2023, DHS saw a
significant decrease in border
encounters between POEs. After peaking
at 9,700 per day in the seven days just
before the end of the Title 42 public
health Order, daily SWB encounters
between POEs decreased by 45 percent
to an average of 5,200 per day for the
period from May 12, 2023, to November
30, 2023.98 While this months-long
trend included variability over shorter
periods, border encounters between
POEs remained below the levels
projected to occur in the absence of the
96 Historic processing times are based on OHSS
Enforcement Lifecycle data as of December 31,
2023; post-May 12 estimates are based on OHSS
analysis of operational CBP, ICE, USCIS, and DOJ/
EOIR data downloaded from UIP on April 2, 2024.
Encounter-to-removal cases include noncitizens
removed after being placed in expedited removal
proceedings, claiming fear, and receiving a negative
fear determination or an administrative closure that
is not referred to EOIR. Comparisons to the
pandemic period are not relevant because many
noncitizens who normally would have been
referred for expedited removal processing were
instead expelled under title 42 authority.
97 OHSS analysis of data downloaded from UIP
on April 2, 2024; see OHSS, Immigration
Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024); OHSS, 2022 Yearbook
of Immigration Statistics 103–04 tbl. 39 (Nov. 2023),
https://www.dhs.gov/sites/default/files/2023-11/
2023_0818_plcy_yearbook_immigration_statistics_
fy2022.pdf (noncitizen removals, returns, and
expulsions for FY 1892 to FY 2022).
98 Pre-May 12, 2023, data from March 2024 OHSS
Persist Dataset; post-May 11, 2023, data from OHSS
analysis of data downloaded from UIP on December
12, 2023.
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Circumvention of Lawful Pathways rule
and complementary measures.99
While the Circumvention of Lawful
Pathways rule and complementary
measures have yielded demonstrable
results, the resources provided to the
Departments still have not kept pace
with irregular migration.
After months of relatively lower
encounter levels between POEs
following the changes put in place after
May 11, 2023, encounter levels
increased through the fall of 2023,100
and December 2023 saw the highest
levels of encounters between POEs in
history, including a surge in which
border encounters between POEs
exceeded 10,000 for three consecutive
days and averaged more than 8,000 a
day for the month.101 That surge in
migration was focused increasingly on
western areas of the border—California
and Arizona—that had not been the
focal point of migration over the prior
two years, and in areas that are
geographically remote and challenging
to respond to. For instance, the Tucson
sector’s average full-year encounter total
for the pre-pandemic period (FY 2014 to
FY 2019) was approximately 62,000; by
contrast, in November and December of
2023, the sector recorded approximately
64,000 and 80,000 encounters,
respectively.102 And while the number
of encounters between POEs since
December 2023 has decreased,
consistent with seasonal migration
flows and as a result of increased
enforcement, they still remain at
historically high levels—USBP
encounters from January 2024 to March
2024 are just 5 percent below the levels
99 Decl. of Blas Nuñez-Neto ¶ 4, E. Bay Sanctuary
Covenant v. Biden, No. 18–cv–6810 (N.D. Cal. June
16, 2023) (Dkt. 176–2) (noting that in the absence
of the rule, DHS planning models suggest that
irregular migration could meet or exceed the levels
that DHS recently experienced in the days leading
up to the end of the Title 42 public health Order).
100 See CBP, Southwest Land Border Encounters,
https://www.cbp.gov/newsroom/stats/southwestland-border-encounters (last visited May 27, 2024)
(providing monthly figures for 2021 to 2024).
101 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024); OHSS, 2022 Yearbook
of Immigration Statistics 103–04 tbl. 39 (Nov. 2023),
https://www.dhs.gov/sites/default/files/2024-02/
2023_0818_plcy_yearbook_immigration_statistics_
fy2022.pdf; -Priscilla Alvarez, Authorities
Encountering Record Number of Migrants at the
Border Each Day Amid Unprecedented Surge, CNN
(Dec. 22, 2023), https://www.cnn.com/2023/12/22/
politics/border-surge-record-amounts/.
102 See March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘SW Border Encounters by Sector’’).
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reached during the same months in
2023,103 while some USBP sectors, such
as Tucson and San Diego, have seen
increases of 83 percent and 62 percent,
respectively, from the second quarter of
FY 2023, and Tucson is on pace for an
all-time high number of annual
encounters.104
Since the lifting of the Title 42 public
health Order, then, it has become
increasingly clear that DHS’s ability to
process individuals encountered at the
SWB under applicable title 8
authorities—including, critically, to
deliver timely consequences to a
meaningful proportion of those who do
not establish a legal basis to remain in
the United States—is significantly
limited by the lack of resources and
tools available to the Departments. In
response to the record high levels of
encounters between POEs in December
2023, DHS had to take extraordinary
steps to shift personnel and resources to
the affected sectors: CBP curtailed or
suspended operations at a number of
POEs, and, just before December 25,
2023, CBP reassigned 246 officers to
support USBP operations. As part of
these extraordinary measures: vehicular
traffic through the Eagle Pass, Texas,
POE was suspended on November 27,
2023; the POE in Lukeville, Arizona,
was closed on December 4, 2023; rail
operations at POEs in El Paso and Eagle
Pass, Texas, were suspended on
December 18, 2023; 105 the Morley Gate
POE in Nogales, Arizona, which was
closed due to construction and slated to
be reopened in November 2023, delayed
its reopening; 106 and operations at
Pedestrian West, part of the San Ysidro
POE in San Diego, California, were
suspended on December 9, 2023.107 On
103 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (‘‘SW Border
Encounters by Sector’’).
104 OHSS analysis of March 2024 OHSS Persist
Dataset; see also OHSS, Immigration Enforcement
and Legal Processes Monthly Tables, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (‘‘SW Border
Encounters by Sector’’).
105 See CBP, Statement from CBP on Operations
in Eagle Pass, Texas and Lukeville, Arizona (Nov.
27, 2023), https://www.cbp.gov/newsroom/nationalmedia-release/statement-cbp-operations-eagle-passtexas-and-lukeville-arizona.
106 See CBP, Statement on Operational Changes
and Resumption of Rail Operations in Eagle Pass
and El Paso (Dec. 22, 2023), https://www.cbp.gov/
newsroom/national-media-release/statement-cbpoperational-changes-and-resumption-railoperations.
107 See CBP, Statement from CBP on Operations
in San Diego, California (Dec. 7, 2023), https://
www.cbp.gov/newsroom/national-media-release/
statement-cbp-operations-san-diego-california.
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January 4, 2024, once the volume of
migrants had diminished and CBP
officers were able to return to normal
duties, port operations in these
locations resumed.108
The decision to close POEs was not
one taken lightly. The United States
Government fully understands the
impacts of such closures on local
communities on both sides of the
border, both socially and
economically.109 Closing international
POEs is a measure of last resort, and one
that DHS was compelled to take in order
to reassign its resources to support
frontline agents in a challenging
moment.
In addition to concerted efforts to
strengthen and maximize consequences,
including through new regulations, the
United States Government has engaged
intensively with the Government of
Mexico to identify coordinated
measures both countries could take, as
partners, to address irregular migration.
During the period before and after the
December surge, the United States
Government and the Government of
Mexico held numerous talks at the
highest levels of government to address
migration. For example, President Biden
and President of Mexico Andrés Manuel
López Obrador spoke on December 21,
2023, and February 3, 2024.110 During
their conversation on December 21, the
presidents agreed that additional
enforcement actions were urgently
needed so that the POEs that were
temporarily closed could reopen.111 In
108 See CBP, Statement from CBP on Resumption
of Operations in Arizona, California, and Texas
(Jan. 2, 2024), https://www.cbp.gov/newsroom/
national-media-release/statement-cbp-resumptionfield-operations-arizona-california-and/.
109 See, e.g., Russel Contreras, U.S.-Mexico Border
Closures Could Cost Billions, Axios (Dec. 22, 2023),
https://www.axios.com/2023/12/22/us-mexicoborder-closures-could-cost-billions (discussing
evidence of the ‘‘devastating consequences’’ that
follow from partial border closings); cf. Bryan
Roberts et al., The Impact on the U.S. Economy of
Changes in Wait Times at Ports of Entry: Report to
U.S. Customs and Border Protection 5 (Apr. 2013),
https://ebtc.info/wp-content/uploads/2014/07/
U.S.C.-Create-CBP-Final-Report.pdf (discussing the
benefits of adding staffing to land border POEs).
110 See The White House, Readout of President
Joe Biden’s Call with President Andrés Manuel
López Obrador of Mexico (Dec. 21, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/12/21/readout-of-president-joebidens-call-with-president-andres-manuel-lopezobrador-of-mexico-2/; The White House, Readout of
President Joe Biden’s Call with President Andrés
Manuel López Obrador of Mexico (Feb. 3, 2024),
https://www.whitehouse.gov/briefing-room/
statements-releases/2024/02/03/readout-ofpresident-joe-bidens-call-with-president-andresmanuel-lopez-obrador-of-mexico-3/.
111 The White House, Readout of President Joe
Biden’s Call with President Andrés Manuel López
Obrador of Mexico (Dec. 21, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/12/21/readout-of-president-joe-
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subsequent high-level meetings, both
countries committed to expanding
efforts to increase enforcement measures
to deter irregular migration, expanding
safe and lawful pathways, and
strengthening cooperation.112 The
Government of Mexico expressed its
concern about the economic impact of
the POE closures and committed to
increasing enforcement on key transit
routes north.113 On January 22, 2024,
after a series of follow-on meetings
between United States and Mexican
Cabinet members in Washington, DC,
Mexico’s Foreign Secretary enumerated
a series of steps that the United States
and Mexico committed to taking to
continue to address migration,
including combating human smuggling
and trafficking organizations.114
DHS assesses that the surge in late
2023 was likely the result of a number
of factors, including the growing
understanding by smugglers and
migrants that DHS’s capacity to impose
consequences at the border is limited by
the lack of resources and tools that
Congress has made available and the
Government of Mexico’s operational
constraints at the end of its fiscal year,
which limited its ability to enforce its
own immigration laws.115 The
bidens-call-with-president-andres-manuel-lopezobrador-of-mexico-2/.
112 The White House, Readout of Homeland
Security Advisor Dr. Liz Sherwood-Randall’s Trip to
Mexico (Feb. 7, 2024), https://www.whitehouse.gov/
briefing-room/statements-releases/2024/02/07/
readout-of-homeland-security-advisor-dr-lizsherwood-randalls-trip-to-mexico/.
113 Id.; see also, e.g., Amna Nawaz, Mexico’s
Foreign Secretary Discusses What Her Country Is
Doing to Ease Border Crisis, PBS News Hour (Jan.
25, 2024), https://www.pbs.org/newshour/show/
mexicos-foreign-secretary-discusses-what-hercountry-is-doing-to-ease-border-crisis; US, Mexico
Agree to Strengthen Efforts to Curb Record
Migration, Reuters (Dec. 28, 2023), https://
www.reuters.com/world/us-mexico-keep-bordercrossings-open-lopez-obrador-says-2023-12-28/.
114 See, e.g., Valentine Hilaire & Cassandra
Garrison, Mexico, US Pitch Measures to Ease
Pressure on Border, Plan Guatemala Talks, Reuters
(Jan. 22, 2024), https://www.reuters.com/world/
americas/mexico-us-guatemala-officials-meetmigration-talks-2024-01-22/; Amna Nawaz,
Mexico’s Foreign Secretary Discusses What Her
Country Is Doing to Ease Border Crisis, PBS News
Hour (Jan. 25, 2024), https://www.pbs.org/
newshour/show/mexicos-foreign-secretarydiscusses-what-her-country-is-doing-to-ease-bordercrisis (quoting Mexico’s Foreign Affairs Secretary as
saying that ‘‘we have done much more law
enforcement to bring down the pressure in the
border in the north’’).
115 See Marı́a Verza, Mexico Halts Deportations
and Migrant Transfers Citing Lack of Funds, AP
News (Dec. 4, 2023), https://apnews.com/article/
mexico-immigration-migrants-venezuela17615ace23d0677bb443d8386e254fbc; Smugglers
Are Bringing Migrants To a Remote Arizona
Crossing, Overwhelming Agents, NPR (Dec. 10,
2023), https://www.npr.org/2023/12/10/
1218428530/smugglers-are-bringing-migrants-to-aremote-arizona-crossing-overwhelming-agents;
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Departments cannot address all of these
factors in one rule, but assess that this
rule will significantly increase the
ability to deliver timely decisions and
timely consequences at the border
within current resources, combating
perceptions and messaging to the
contrary.
Encounters between POEs in January
2024 were substantially lower than
December 2023 encounters, consistent
with historic seasonal trends, and
encounters in January 2022 and January
2023.116 In February and March 2024,
encounter levels increased from the
levels in January but remained
significantly lower than in December
2023.117 Overall, from January 1 to
March 31, 2024, encounters between
POEs were 5 percent lower than during
the same months in 2023 and 22 percent
lower than those in 2022.118 However,
despite the overall decrease in
encounters since December 2023,
specific areas of the border—in
particular USBP’s San Diego and
Tucson Sectors—have experienced
localized increases in encounters that
have, at times, strained DHS’s holding
capacity, adversely impacted local
operations, and limited DHS’s ability to
swiftly impose consequences on
individuals who do not establish a legal
basis to remain in the United States.
During the last week of April 2024,
USBP’s San Diego Sector encountered
an average of more than 1,400 migrants
each day, including many migrants from
countries outside the Western
Hemisphere who are more difficult to
process.119 The USBP Tucson Sector is
experiencing similar, unprecedented
migratory flows and consequent
challenges. This high concentration of
encounters, including comparatively
large numbers of migrants who are hard
to remove, in a focused geographic area
places particular strain on the
immigration enforcement system. This
is particularly true in areas of the
border—such as San Diego—where
infrastructure-related capacity
constraints limit DHS’s ability to swiftly
Adam Isaacson, Weekly U.S.-Mexico Border Update:
Senate Negotiations, Migration Trends, Washington
Office of Latin America (Dec. 15, 2023), https://
www.wola.org/2023/12/weekly-u-s-mexico-borderupdate-senate-negotiations-migration-trends/;
Jordan, supra note 27.
116 OHSS analysis of March 2024 OHSS Persist
Dataset.
117 OHSS analysis of March 2024 OHSS Persist
Dataset.
118 OHSS analysis of March 2024 OHSS Persist
Dataset.
119 See Elliot Spagat, The Latest Hot Spot for
Illegal Border Crossings is San Diego. But Routes
Change Quickly, AP News (May 17, 2024), https://
apnews.com/article/san-diego-border-asylumbiden-mexicoda1e7b7c81e4e58912deff6d36dbdb9e.
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impose consequences at the border.
These factors resulted in USBP’s main
processing facility in San Diego
reaching over 200 percent capacity in
April 2024, despite a recent expansion
of this facility.
Since January 2024, the United States
and Mexico have continued to hold
regular, high-level conversations, as
partners, to continue to deepen their
collaboration, identify emerging trends,
and coordinate additional steps by both
countries to address changing flows.
These meetings have informed
operational deployments by both
governments, including the coordinated
response to the shift in migratory flows
to the San Diego and Tucson sectors.
This extensive ongoing collaboration
was reflected by another bilateral
engagement between President Biden
and President López-Obrador on April
28, 2024, after which the presidents
released a joint statement in which they
‘‘ordered their national security teams to
work together to immediately
implement concrete measures to
significantly reduce irregular border
crossings while protecting human
rights.’’ 120
Since then, the United States and the
Government of Mexico have worked
together, cooperatively, to increase
enforcement.121 But these efforts—while
significant—are likely to be less
effective over time. Smuggling networks
are adaptable, responding to changes
put in place. Despite their immediate
effectiveness, such changes are not
enough—and will almost certainly have
diminished effect over time. The reality
is that the scale of irregular migration
over the past two years has strained the
120 See The White House, Joint Statement by the
President of the United States Joe Biden and the
President of Mexico Andrés Manuel López Obrador
(Apr. 29, 2024), https://www.whitehouse.gov/
briefing-room/statements-releases/2024/04/29/jointstatement-by-the-president-of-the-united-states-joebiden-and-the-president-of-mexico-andres-manuellopez-obrador.
121 See Valerie Gonzalez & Elliot Spagat, The US
Sees a Drop in Illegal Border Crossings After Mexico
Increases Enforcement, AP News (Jan. 7, 2024),
https://apnews.com/article/mexico-immigrationenforcement-crossings-dropb67022cf0853dca95a8e0799bb99b68a; Luke Barr,
US Customs And Border Protection Reopening 4
Ports of Entry After Migrant Surge Subsides, ABC
News (Jan. 2, 2024), https://abcnews.go.com/US/uscustoms-border-protection-reopening-4-ports-entry/
story?id=106062555; Seung Min Kim, US and
Mexico Will Boost Deportation Flights and
Enforcement to Crack Down on Illegal Immigration,
AP News (Apr. 30, 2024), https://apnews.com/
article/joe-biden-andres-manuel-lopez-obradormexico-immigration-borderc7e694f7f104ee0b87b80ee859fa2b9b; Julia Ainsley
& Chloe Atkins, Mexico Is Stopping Nearly Three
Times as Many Migrants Now, Helping Keep U.S.
Border Crossings Down, NBC News (May 15, 2024),
https://www.nbcnews.com/politics/immigration/
mexico-stopping-three-times-as-many-migrants-aslast-year-rcna146821.
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funding, personnel, and infrastructure
of both countries’ immigration
enforcement systems in ways that have,
at times, contributed to high encounters
between POEs.
2. Need for These Measures
DHS projects that, absent the policy
changes being promulgated here,
irregular migration will once again
increase, and that any disruption in
Mexican enforcement will only
exacerbate that trend. Without the
Proclamation and this rule, the
anticipated increase in migration will,
in turn, worsen significant strains on
resources already experienced by the
Departments and communities across
the United States.
Current trends and historical data
indicate that migration and
displacement in the Western
Hemisphere will continue to increase as
a result of violence, persecution,
poverty, human rights abuses, the
impacts of climate change, and other
factors. The case of migration through
the Darién jungle between Colombia and
Panama is illustrative. For example,
between January and April, 2024, the
United Nations High Commissioner for
Refugees (‘‘UNHCR’’) tracked 139,000
irregular entries, up from 128,000 for
the same months in 2023 and a sevenfold increase over migration levels
during that period in 2022.122 The
number of migrants crossing the Darién
will only further increase the pressure
on Mexico at its southern border and on
the United States at the SWB.
Past unprecedented migration surges
bolster the Departments’ views and the
need for this rulemaking. As described
in detail in Section III.B.1 of this
preamble, migration trends have been
steadily increasing in scope and
complexity, featuring increasingly
varied nationalities and demographic
groups. This has been true even as DHS
has experienced sustained levels of
historically high encounter levels. Over
the past two years, an increasing
proportion of total CBP encounters at
the SWB has been composed of families
and UCs, and DHS has seen record
flows of migrants from countries outside
of northern Central America.123 These
122 The UNHCR tracked 20,000 irregular entries in
the Darién gap in 2022. OHSS analysis of
downloaded from UNHCR Operational Data Portal,
Darien Panama: Mixed Movements Protection
Monitoring—January–December 2023, https://
data.unhcr.org/en/documents/details/105569 (last
visited May 31, 2024); Darien Panama: Mixed
Movements Protection Monitoring—April 2024,
https://data.unhcr.org/en/documents/details/
108399 (last visited May 31, 2024).
123 March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
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international migration trends are the
result of exceedingly complex factors
and are shaped by, among other things,
family and community networks, labor
markets, environmental and securityrelated push factors, and rapidly
evolving criminal smuggling
networks.124 The United States
Government is working to address these
root causes of migration and to abate
adverse effects from unprecedented
levels of irregular migration,125
including through working closely with
partner countries across the Western
Hemisphere.126 But these efforts will
take time to have significant impacts
and will not alleviate the stress that the
border security and immigration
systems are currently experiencing, as
described in the Proclamation.
The Departments’ views and the need
for this rulemaking are further
supported by projections developed
from ongoing work by DHS’s Office of
Homeland Security Statistics (‘‘OHSS’’),
which leads an interagency working
group that produces encounter
projections used for operational
planning, policy development, and
short-term budget planning. OHSS uses
a mixed-method approach that
combines a statistical predictive model
with subject matter expertise intended
to provide informed estimates of future
migration flow and trends. The mixedmethods approach blends multiple
types of models through an ensemble
approach of model averaging.127 The
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘SWB Encounters by Agency and Family
Status’’ and ‘‘SWB Encounters by Citizenship and
Family Status’’).
124 See 88 FR at 31327–28 & n.59.
125 See, e.g., The White House, Mexico and
United States Strengthen Joint Humanitarian Plan
on Migration (May 2, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/
(committing to addressing root causes of migration).
126 See The White House, Fact Sheet: Third
Ministerial Meeting on the Los Angeles Declaration
On Migration and Protection in Guatemala (May 7,
2024), https://www.whitehouse.gov/briefing-room/
statements-releases/2024/05/07/fact-sheet-thirdministerial-meeting-on-the-los-angelesdeclarationon-migration-and-protection-inguatemala.
127 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 the [forecast]
accuracy’’); The Forecasting Collaborative, Insights
into the Accuracy of Social Scientists’ Forecasts of
Societal Change, 7 Nat. Hum. Behaviour 484 (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
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model includes encounter data
disaggregated by country and
demographic characteristics, 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, which can
include ‘‘low’’ planning models that are
based on the lower bound of the 95
percent forecast interval, ‘‘moderate’’
planning models that are based on the
upper bound of the 68 percent forecast
interval, and ‘‘high’’ planning models
based on the upper bound of the 95
percent forecast interval. These
planning models account for changes in
effectiveness of current enforcement and
lawful migration processes.128
Because of the significant time and
operational cost it takes to redeploy
resources, DHS is generally conservative
in its enforcement planning. 88 FR at
31328. As a result, it focuses on its
higher planning models as it projects
future resource deployments to avoid
using more optimistic scenarios that
could leave enforcement efforts badly
under-resourced. Id. The current
internal projections, based on this
robust modeling methodology, suggest
that encounters may once again reach
extremely elevated levels in the weeks
to come, averaging in the three months
from July to September, 2024, in the
range of approximately 3,900 to
approximately 6,700 encounters at and
between POEs per day, not including an
additional 1,450 noncitizens per day
who are expected to be encountered at
POEs after making appointments though
the CBP One app.129 The Departments
believe the policies in this rule are
multidisciplinary team members). DHS notes that
the complexity of international migration limits
DHS’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 in demographics of
those noncitizens encountered by DHS), 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. See 88 FR at 31316
n.14.
128 OHSS Southwest Border Encounter Projection,
April 2024.
129 OHSS Encounter Projections, April 2024. Note
that the OHSS encounter projection excludes
encounters of people who have registered with the
CBP One app along with administrative encounters
at POEs (i.e., encounters in which removal
proceedings are not considered), but includes nonCBP One enforcement encounters at POEs, which
have averaged about 190 per day since May 2023,
based on OHSS analysis of March 2024 OHSS
Persist Dataset. See also CBP, CBP OneTM
Appointments Increased to 1,450 Per Day (June 30,
2023), https://www.cbp.gov/newsroom/nationalmedia-release/cbp-one-appointments-increased1450-day.
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48727
justified in light of high levels of
migration that have ultimately proved
persistent even in the face of new
policies that have resulted in processing
migrants with record efficiency, as
evidenced by the migration patterns
witnessed in December 2023. Current
sustained, high encounter rates exceed
the border security and immigration
systems’ capacity to effectively and
safely process, detain, and remove, as
appropriate, all migrants who are
encountered.130 This is generally true
when considering total encounters
across the entire SWB, and even more
the case when specific sectors along the
border are targeted by smuggling
organizations with focused localized
surges in encounters—as has been
happening since the late fall in Tucson,
Arizona, which accounted for 35
percent of SWB encounters between
POEs in the second quarter of FY 2024,
up from 18 percent in FY 2023 and 13
percent in FY 2022.131
Despite the fact that the average of
4,400 daily encounters between POEs in
the second quarter of FY 2024 is below
the highs experienced in the days
immediately preceding the end of the
Title 42 public health Order and in
December 2023,132 daily encounter
numbers remain sufficiently high—
especially in the locations where
encounters have been extremely
elevated, such as California and
Arizona—that the numbers significantly
impact the operational flexibility
required to process individuals in a
timely and consequential manner.133
130 See, e.g., Decl. of Blas Nuñez-Neto ¶ 8, M.A.
v. Mayorkas, No. 23–cv–1843 (D.D.C. Oct. 27, 2023)
(Dkt. 53–1).
131 March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables—October 2023, https://
www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (‘‘SW Border
Encounters by Sector’’).
132 March 2024 OHSS Persist Dataset. As noted
supra note 5, preliminary April data show SWB
encounters between POEs fell slightly, by 6 percent,
between March and April. OHSS analysis of data
obtained from CBP, Southwest Land Border
Encounters, https://www.cbp.gov/newsroom/stats/
southwest-land-border-encounters (last accessed
May 24, 2024). The preliminary April data are best
understood to reflect a continuation of the general
pattern described elsewhere in this rule.
133 The Tucson Sector accounted for 35 percent
of USBP encounters in the second quarter of FY
2024, up from 18 percent in FY 2023 and 13 percent
in FY 2022. OHSS analysis of March 2024 OHSS
Persist Dataset; see also CBP, Southwest Land
Border Encounters (By Component), https://
www.cbp.gov/newsroom/stats/southwest-landborder-encounters-by-component (last modified
May 15, 2024). Border encounters typically fall
around the New Year and often remain lower than
other months in January. See OHSS, Immigration
Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/
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When capacity is strained like this in
specific locations along the border, it
becomes even more difficult for the
Departments to deliver timely decisions
and timely consequences. At increased
levels of encounters and without a
change in policy, most non-Mexicans
processed for expedited removal under
title 8 would likely establish a credible
fear and remain in the United States for
the foreseeable future despite the fact
that most of them will not ultimately be
granted asylum, assuming results are
similar to historic rates,134 a scenario
that would likely continue to
incentivize an increasing number of
migrants to journey to the United States
and further increase the likelihood of
sustained high encounter rates.
Even in times with sustained lower
encounter volumes, such as between
2011 and 2017, the Departments
experienced challenging situations,
including the first surge in UCs in 2014,
that severely strained the United States
Government’s capacity.135 Surges in
encounters at the southern border—both
at and between POEs—are now
occurring more frequently and at higher
magnitudes, and featuring more diverse
demographics and nationalities than
ever before.136 These surges affect more
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (‘‘Nationwide CBP
Encounters by Encounter Type and Region’’). Thus,
while CBP’s apprehension of 402,000 noncitizens
between POEs in the second quarter of FY 2024 is
slightly lower than the 424,000 observed in FY 2023
and 518,000 in FY 2022, it is almost four times as
high as the pre-pandemic second-quarter average
for FY 2014 through FY 2019, and with the
exceptions of FY 2022 and FY 2023 the highest
second-quarter count recorded since FY 2001. Even
with the downturn between January and March,
2024, the high volume of encounters and
challenging demographic mix still meant that most
noncitizens processed by USBP were released from
custody into the United States (including
noncitizens enrolled in an ICE Alternatives to
Detention program and those paroled by the Office
of Field Operations). OHSS analysis of March 2024
OHSS Persist Dataset; see also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (‘‘CBP SW Border
Encounters Book-Outs by Agency’’).
134 Since May 12, 2023, 60 percent of nonMexican noncitizen SWB encounters (at and
between POEs) processed for expedited removal
who have made fear claims have been referred to
EOIR for immigration proceedings. OHSS analysis
of data downloaded from UIP on April 2, 2024. But
based on historic (pre-pandemic) data, only 18
percent of non-Mexican noncitizens processed for
expedited removal that are referred to EOIR result
in an individual being granted relief or protection
from removal once the case is completed. OHSS
Enforcement Lifecycle December 31, 2023.
135 OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by Agency and
Family Status’’).
136 OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
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CBP sectors along the border, disrupt
operations more quickly, and affect
readiness in other critical areas as DHS
diverts resources, including front-line
agents, from other urgent tasks and
geographic areas.137 These actions, in
turn, impact other critical mission sets,
including processing lawful trade and
travel at POEs.138
DHS continues to lack the necessary
funding and resources to deliver timely
consequences to the majority of
noncitizens encountered given the
increased level of encounters it is
experiencing at the SWB.139 On August
10, 2023, the Administration submitted
to Congress a request for $2.2 billion in
supplemental funding for border
operations, including $1.4 billion for
CBP and $714 million for ICE for border
management and enforcement and an
additional $416 million for counterfentanyl efforts.140
On October 20, 2023, the
Administration submitted to Congress a
second request for supplemental
funding for DHS, which would provide
funding to enhance enforcement and
processing, procure and operationalize
needed technologies, and hire
additional personnel.141 This funding
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by Agency and
Family Status’’ and ‘‘CBP SW Border Encounters by
Agency and Selected Citizenship’’); The
Unaccompanied Children Crisis: Does the
Administration Have a Plan to Stop the Border
Surge and Adequately Monitor the Children?:
Hearing Before the S. Comm. On the Judiciary,
114th Cong. (2016) (statement of Ronald Vitiello,
Acting Chief of USBP), https://
www.judiciary.senate.gov/imo/media/doc/02-2316%20Vitiello%20Testimony.pdf; Memorandum on
the Response to the Influx of Unaccompanied Alien
Children Across the Southwest Border, 1 Pub.
Papers of Pres. Barack Obama 635, 635 (June 2,
2014).
137 See, e.g., Decl. of Raul L. Ortiz ¶¶ 11–12,
Florida v. Mayorkas, No. 23–11644 (11th Cir. May
19, 2023) (Dkt. 3–2).
138 See, e.g., Decl. of Raul L. Ortiz ¶¶ 11–12,
Florida v. Mayorkas, No. 23–11644 (11th Cir. May
19, 2023) (Dkt. 3–2); Decl. of Blas Nuñez-Neto ¶ 32,
E. Bay Sanctuary Covenant v. Biden, No. 18–cv–
6810 (N.D. Cal. June 16, 2023) (Dkt. 176–2).
139 Letter for Kevin McCarthy, Speaker of the
House of Representatives, from Shalanda D. Young,
Director, OMB, at 2–3 (Aug. 10, 2023), https://
www.whitehouse.gov/wp-content/uploads/2023/08/
Final-Supplemental-Funding-Request-Letter-andTechnical-Materials.pdf; The White House, Fact
Sheet: White House Calls on Congress to Advance
Critical National Security Priorities (Oct. 20, 2023),
https://www.whitehouse.gov/briefing-room/
statements-releases/2023/10/20/fact-sheet-whitehouse-calls-on-congress-to-advance-criticalnational-security-priorities/.
140 See Letter for Kevin McCarthy, Speaker of the
House of Representatives, from Shalanda D. Young,
Director, OMB, at 2–3, attach. at 45–50 (Aug. 10,
2023), https://www.whitehouse.gov/wp-content/
uploads/2023/08/Final-Supplemental-FundingRequest-Letter-and-Technical-Materials.pdf.
141 See The White House, Fact Sheet: White
House Calls on Congress to Advance Critical
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would further support critical border
enforcement efforts, including:
• An additional 1,300 Border Patrol
Agents to work alongside the 20,200
agents proposed in the President’s FY
2024 budget request, as well as 300
Border Patrol Processing Coordinators
and support staff; 142
• An additional 1,600 AOs and
associated support staff to process
migrant claims, which would provide
USCIS with the critical resources
needed to expand its current credible
fear interview capacity to support
timely processing of those placed in
expedited removal; 143 and
• An expansion of detention beds and
ICE removal flight funding to sustain the
current significantly increased use of
expedited removal, provide necessary
surge capacity, and allow DHS to
process more expeditiously noncitizens
who cross the SWB unlawfully and
swiftly remove those without a legal
basis to remain in the United States.144
On January 31, 2024, DHS published
a new USCIS fee schedule, effective
April 1, 2024, that adjusted the fees to
fully recover costs and maintain
adequate service. See U.S. Citizenship
and Immigration Services Fee Schedule
and Changes to Certain Other
Immigration Benefit Request
Requirements, 89 FR 6194, 6194 (Jan.
31, 2024); U.S. Citizenship and
Immigration Services Fee Schedule and
Changes to Certain Other Immigration
Benefit Request Requirements;
Correction, 89 FR 20101 (Mar. 21, 2024)
(making corrections). Because there is
National Security Priorities (Oct. 20, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/10/20/fact-sheet-white-house-callson-congress-to-advance-critical-national-securitypriorities/.
142 See DHS, Fact Sheet: Biden-Harris
Administration Supplemental Funding Request
(Oct. 20, 2023), https://www.dhs.gov/news/2023/10/
20/fact-sheet-biden-harris-administrationsupplemental-funding-request; The White House,
Fact Sheet: White House Calls on Congress to
Advance Critical National Security Priorities (Oct.
20, 2023), https://www.whitehouse.gov/briefingroom/statements-releases/2023/10/20/fact-sheetwhite-house-calls-on-congress-to-advance-criticalnational-security-priorities/.
143 See The White House, Fact Sheet: White
House Calls on Congress to Advance Critical
National Security Priorities (Oct. 20, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/10/20/fact-sheet-white-house-callson-congress-to-advance-critical-national-securitypriorities/.
144 See The White House, Fact Sheet: White
House Calls on Congress to Advance Critical
National Security Priorities (Oct. 20, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/10/20/fact-sheet-white-house-callson-congress-to-advance-critical-national-securitypriorities/; DHS, Fact Sheet: Biden-Harris
Administration Supplemental Funding Request
(Oct. 20, 2023), https://www.dhs.gov/news/2023/10/
20/fact-sheet-biden-harris-administrationsupplemental-funding-request.
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no fee required to file an asylum
application or for protection screenings,
8 CFR 106.2(a)(28), and because
Congress has not provided other funds
to pay for the operating expenses of the
Asylum Division,145 fees generated from
other immigration applications and
petitions must be used to pay for these
expenses. See INA 286(m), 8 U.S.C.
1356(m). While the new fee rule does
provide for increased funding for the
Refugee, Asylum, and International
Operations Directorate,146 keeping pace
with USCIS’s protection screening and
affirmative asylum workloads requires
additional funding, as reflected in the
President’s FY 2025 Budget.147 Raising
fees on other applications and petitions
to cover the $755 million that would be
required to hire and support the
additional 1,600 AOs called for in the
President’s 2025 FY Budget 148 would
impose a burden on other filers.
In early February 2024, a bipartisan
group of Senators proposed reforms of
the country’s asylum laws that would
have provided new authorities to
significantly streamline and speed up
immigration enforcement proceedings
and immigration adjudications for
individuals encountered at the border,
including those who are seeking
protection, while preserving principles
of fairness and humane treatment.149
Critically, the proposal included nearly
$20 billion in additional resources for
DHS, DOJ, and other departments to
implement those new authorities,150
including resources for:
145 See DHS, U.S. Citizenship and Immigration
Services, Budget Overview, Fiscal Year 2025
Congressional Justification CIS—IEFA—22 (Mar. 8,
2024), https://www.dhs.gov/sites/default/files/202403/2024_0308_us_citizenship_and_immigration_
services.pdf (showing AOs are funded by
Immigration Examinations Fee Account); id. at
CIS—O&S—30 (showing that appropriated funds
from the Refugee, Asylum, and International
Operations Directorate of USCIS support Refugee
Officers).
146 DHS, Immigration Examinations Fee Account:
Fee Review Supporting Documentation with
Addendum 53 (Nov. 2023), https://
www.regulations.gov/document/USCIS-2021-00108176.
147 See The White House, Fact Sheet: The
President’s Budget Secures Our Border, Combats
Fentanyl Trafficking, and Calls on Congress to
Enact Critical Immigration Reform (Mar. 11, 2024),
https://www.whitehouse.gov/briefing-room/
statements-releases/2024/03/11/fact-sheet-thepresidents-budget-secures-our-border-combatsfentanyl-trafficking-and-calls-on-congress-to-enactcritical-immigration-reform/.
148 Id.
149 The White House, Fact Sheet: Biden-Harris
Administration Calls on Congress to Immediately
Pass the Bipartisan National Security Agreement
(Feb. 4, 2024), https://www.whitehouse.gov/
briefing-room/statements-releases/2024/02/04/factsheet-biden-harris-administration-calls-oncongress-to-immediately-pass-the-bipartisannational-security-agreement/.
150 Deirdre Walsh & Claudia Grisales, Negotiators
release $118 billion border bill as GOP leaders call
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• Over 1,500 new CBP personnel,
including Border Patrol Agents and CBP
Officers;
• Over 4,300 new AOs, as well as
USCIS staff to facilitate timely and fair
decisions;
• 100 additional IJ teams to help
reduce the asylum caseload backlog and
adjudicate cases more quickly;
• Shelter and critical services for
newcomers in U.S. cities and States; and
• 1,200 new ICE personnel for
functions including enforcement and
removals.151
However, Congress failed to move
forward with this bipartisan legislative
proposal.152 It also failed to pass the
emergency supplemental funding
requests that the Administration
submitted. Although Congress did
ultimately enact an FY 2024
appropriations bill for DHS, the funding
falls significantly short of what DHS
requires to deliver timely consequences
and avoid large-scale releases pending
section 240 removal proceedings. For
example, the bill does not provide the
resources necessary for DHS to refer the
majority of noncitizens encountered by
USBP who are amenable to expedited
removal into such processing, resulting
in large-scale releases pending section
240 removal proceedings based on
current encounter numbers. Such
releases, in turn, have significant
impacts on communities and contribute
to further migration by incentivizing
potential migrants to travel to the
United States with the belief that, even
if initially detained, they will ultimately
be released to live and work in the
United States for long periods of time.
Absent the Proclamation and this rule,
these harmful results are especially
likely given the circumstances described
in the Proclamation.
The FY 2024 appropriations provided
some additional funding for DHS above
its request, including for additional
Border Patrol Agents and a higher level
of ICE detention beds than was
previously appropriated.153 Although
it dead in the House, NPR (Feb. 4, 2024), https://
www.npr.org/2024/02/04/1226427234/senateborder-deal-reached.
151 The White House, Fact Sheet: Biden-Harris
Administration Calls on Congress to Immediately
Pass the Bipartisan National Security Agreement
(Feb. 4, 2024), https://www.whitehouse.gov/
briefing-room/statements-releases/2024/02/04/factsheet-biden-harris-administration-calls-oncongress-to-immediately-pass-the-bipartisannational-security-agreement/.
152 Associated Press, Border Bill Fails Senate Test
Vote as Democrats Seek to Underscore Republican
Resistance (May 23, 2024), https://apnews.com/
article/border-immigration-senate-vote924f48912eecf1dc544dc648d757c3fe.
153 See House of Representatives, Explanatory
Statement: Division C, Department of Homeland
Security Appropriations Act, 2024, at 14, 25 (Mar.
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this increase is helpful, there are a
number of ways in which the FY 2024
budget falls well short of what DHS
needs to respond to the current elevated
levels of migration. For example, the FY
2024 appropriations failed to fund the
salary increase set across the Federal
Government by the Office of
Management and Budget (‘‘OMB’’),
effectively reducing salary funding for
the entirety of the appropriationsfunded DHS workforce.154 This
reduction will limit the availability of
overtime to respond to surges in
irregular migration and may require
difficult operational decisions during
the closing months of the fiscal year,
which is historically a busier period for
such migration. The appropriations also
did not provide sufficient funding to
maintain the temporary processing
facilities needed to hold migrants in
custody. Further, the funds for hiring
additional personnel were restricted to
the current fiscal year rather than being
provided as multi-year funds as
requested; given the length of the hiring
process, DHS will not be able to realize
the increases in personnel envisioned
by the legislation before the funding
expires.
All of these factors, taken together,
mean that under the current
appropriations law, DHS will, at best, be
able only to sustain most of its current
operations, resulting in an operating
capacity that already experiences strain
during times of high migration levels;
this will, in turn, reduce DHS’s ability
to maximize the delivery of timely
consequences for those without a lawful
basis to remain. Additionally, DHS will
not be able to expand capacity along the
border or increase its ability to deliver
consequences through referrals into
expedited removal. Instead, DHS may
actually need to reduce capacity in
some key areas, including by closing
critical temporary processing facilities
and pulling USBP agents away from the
frontline to undertake processing and
tasks related to custody. Thus, while
DHS has made significant progress
toward a migration strategy focused on
enforcement, deterrence, encouragement
of the use of lawful pathways, and
diplomacy, a lack of needed resources
and tools hampers DHS’s current ability
to manage the unprecedented flow of
hemispheric migration, and the
18, 2024), https://docs.house.gov/billsthisweek/
20240318/Division%20C%20Homeland.pdf.
154 See id. at 14, 22 (explaining that for CBP,
‘‘[t]he agreement includes $346,498,000 below the
request, including the following: $182,772,000 for
the 2024 pay raise,’’ and for ICE, ‘‘[t]he agreement
provides $9,501,542,000 for Operations and
Support, including a decrease below the request of
$74,153,000 for the 2024 pay raise’’).
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situation will only worsen with
expected seasonal and other increases.
Immigration-related resource
challenges are not unique to front-line
border officials. The immigration
removal continuum—from
apprehension, processing, and
inspection to protection interviews and
removal—is hampered by a lack of
sufficient funding, resources, and tools
at every stage.155 EOIR is underfunded,
without sufficient resources to address
the backlog of over 2.78 million cases
that were pending in the immigration
courts at the end of the first quarter of
FY 2024.156 This under-resourcing has
contributed to the growth of this
backlog; in FY 2023, IJs completed more
cases than they ever had before in a
single year, but more than twice as
many cases were received by the
immigration courts as were
completed.157 The FY 2024 budget
155 See DHS, Statement from Secretary Mayorkas
on the President’s Fiscal Year 2025 Budget for the
U.S. Department of Homeland Security (Mar. 11,
2024), https://www.dhs.gov/news/2024/03/11/
statement-secretary-mayorkas-presidents-fiscalyear-2025-budget-us-department (‘‘DHS reiterates
previously submitted funding requests that are
critical to secure the border, build immigration
enforcement capacity, combat fentanyl and address
domestic needs like natural disaster response,
which Congress has failed to act on. Among them,
the October funding request, which includes $8.7
billion for border, immigration, and counter
fentanyl requirements and $9.2 billion for FEMA’s
Disaster Relief Fund and Nonprofit Security Grant
Program. Notably, the Administration’s border
supplemental request includes funding to build
capacity in the areas of border security, immigration
enforcement, and countering fentanyl. DHS strongly
supports the additional $19 billion in funding
proposals included in the Senate’s bipartisan border
legislation that would, among other things, enable
DHS to hire more CBP agents and officers, ICE
enforcement and investigative personnel, and
USCIS asylum officers and provide new tools to
bolster the Department’s efforts to secure and
manage the border.’’); see also Letter for Kevin
McCarthy, Speaker of the House of Representatives,
from Shalanda D. Young, Director, OMB, at 2–3
(Aug. 10, 2023), https://www.whitehouse.gov/wpcontent/uploads/2023/08/Final-SupplementalFunding-Request-Letter-and-TechnicalMaterials.pdf; The White House, Fact Sheet: White
House Calls on Congress to Advance Critical
National Security Priorities (Oct. 20, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/10/20/fact-sheet-white-house-callson-congress-to-advance-critical-national-securitypriorities/; DHS, Fact Sheet: Biden-Harris
Administration Supplemental Funding Request
(Oct. 20, 2023), https://www.dhs.gov/news/2023/10/
20/fact-sheet-biden-harris-administrationsupplemental-funding-request.
156 See EOIR, Adjudication Statistics: Pending
Cases, New Cases, and Total Completions (Jan. 18,
2024), https://www.justice.gov/eoir/workload-andadjudication-statistics.
157 See EOIR, Adjudication Statistics: New Cases
and Total Completions (Oct. 12, 2023), https://
www.justice.gov/d9/pages/attachments/2018/05/08/
2_new_cases_and_total_completions.pdf; EOIR,
Adjudication Statistics: New Cases and Total
Completions—Historical 1 (Oct. 12, 2023), https://
www.justice.gov/d9/pages/attachments/2022/09/01/
3_new_cases_and_total_completions_-_
historical.pdf.
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creates even greater strains on EOIR.
EOIR received $844 million this fiscal
year,158 a cut of $16 million from FY
2023.159 EOIR’s budget was also cut
$94.3 million from its inflation-adjusted
funding requirements (referred to as
‘‘Current Services’’).160 As a result of the
significant budgetary gap, EOIR will
necessarily be required to reduce the
Federal and contract labor force that has
been supporting its immigration courts
nationwide and cut spending to
technological initiatives. Specifically,
EOIR has identified a need to cut 200 of
its authorized Federal positions and is
identifying areas in which it can make
cuts to contracts, including those
supporting the Office of Information
Technology, with the least amount of
impact on operations.
Similarly, the USCIS backlog of
affirmative asylum cases stands at over
1.16 million and is growing.161 USCIS
does not have enough AOs to keep pace
with the number of individuals who
could be referred for credible fear
interviews at the border, much less keep
pace with new affirmative asylum
receipts or even marginally reduce the
affirmative asylum backlog. In sum, the
border security and immigration
systems are badly strained and not
functioning to provide timely relief or
protection for those who warrant it or
timely consequences for those without a
legal basis to remain, including those
without viable asylum or protection
claims.
The TCOs operating in the region, and
the migrants they prey upon who intend
to make the dangerous journey north,
have taken notice of this situation. They
understand that when the capacity of
DHS to quickly process individuals at
the border is strained, DHS is limited in
its ability to deliver timely
consequences. Because of these resource
limitations, individuals are more likely
158 Consolidated Appropriations Act, 2024, Public
Law 118–42, 138 Stat. 25, 133 (‘‘[f]or expenses
necessary for the administration of immigrationrelated activities of the Executive Office for
Immigration Review, $844,000,000’’).
159 Consolidated Appropriations Act, 2023, Public
Law 117–328, 136 Stat. 4459, 4522 (2022) (‘‘[f]or
expenses necessary for the administration of
immigration-related activities of the Executive
Office for Immigration Review, $860,000,000’’);
EOIR, FY 2024 Budget Request at a Glance, https://
www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_
omb_cleared_03.08.23.pdf (showing FY 2023
enacted budget providing EOIR $860 million).
160 EOIR, FY 2024 Budget Request at a Glance,
https://www.justice.gov/d9/2023-03/eoir_fy_24_
budsum_ii_omb_cleared_03.08.23.pdf (providing
the Current Services Adjustment as an increase of
$78.3 million, bringing the inflation-adjusted
amount to $938.3 million).
161 OHSS analysis of USCIS Global Affirmative
Data as of April 25, 2024 (noting that ‘‘[d]ata is
limited to filings between FY2000 and March 31,
2024’’).
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than not to be released to pursue a
years-long immigration court process
during which, beginning 180 days after
applying for asylum, they may be
authorized to work.162 These smuggling
organizations have built a multi-billiondollar industry, featuring online
marketing campaigns to spread
misinformation and sophisticated
logistics networks designed to quickly
funnel migrants to the parts of the
border where DHS capacity is lower.163
While the emergency measures
instituted by the Proclamation are in
effect, the Departments will put in place
extraordinary procedures to more
quickly process individuals
encountered at the southern border,
reducing the time noncitizens spend in
DHS facilities. The specific measures
introduced by this rule are designed to
further streamline DHS processes at the
border so that DHS can more quickly
deliver meaningful consequences to
more individuals who cross unlawfully
or without authorization within the
resource and operational constraints
that have limited DHS capacity to date.
Under this rule, while emergency
border circumstances persist, the way
noncitizens are processed, their
eligibility for asylum, and the way in
which their eligibility for protection is
assessed, will change in three ways.
First, during emergency border
circumstances, those who enter the
United States across the southern border
and who are not described in section
3(b) of the Proclamation will be
ineligible for asylum unless they
demonstrate by a preponderance of the
evidence that exceptionally compelling
circumstances exist. As discussed in
Section III.B.3.a of this preamble, the
Departments expect that applying the
limitation on asylum eligibility will
encourage noncitizens to make an
appointment to present at the SWB, take
advantage of other lawful migration
162 See 8 CFR 208.7, 274a.12(c)(8). Sixty-seven
percent of individuals encountered by CBP at and
between POEs at the SWB between May 2023 and
March 2024 were released, including 66 percent of
such individuals in the second quarter of FY 2024.
These individuals include noncitizens enrolled in
an ICE Alternatives to Detention program. March
2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes
Monthly Tables, https://www.dhs.gov/ohss/topics/
immigration/enforcement-and-legal-processesmonthly-tables (last updated May 10, 2024) (‘‘CBP
SW Border Encounters Book-Out Outcomes by
Agency’’).
163 See, e.g., Priscilla Alvarez, Human smugglers
peddle misinformation to US-bound migrants on
Facebook, watchdog says, CNN (July 27, 2022),
https://www.cnn.com/2022/07/27/politics/humansmuggling-misinformation/; Bernd
Debusmann Jr, TikTok and Title 42 rumours fuel
human smuggling at the US border, BBC (July 8,
2023), https://www.bbc.com/news/world-uscanada-65848683.
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pathways, or not undertake the
dangerous journey north to begin with.
Second, this rule will reduce the time
it takes to process individuals placed in
expedited removal at the border by
changing the way CBP immigration
officers identify and refer noncitizens
for credible fear interviews. Under
current title 8 procedures, noncitizens
encountered at the border and processed
for expedited removal are provided
lengthy advisals regarding the credible
fear and asylum process and are asked
questions to ascertain whether they may
potentially have a fear of persecution or
torture.164 During emergency border
circumstances, DHS will move to a
‘‘manifestation of fear’’ process at the
border, detailed below in Section
III.B.3.b of this preamble, that will
involve general (rather than individual)
advisals and require individuals who
have a fear of persecution or torture to
manifest that fear, verbally, nonverbally, or physically, in order for DHS
personnel to refer them for a credible
fear interview.
Third, the limitation on asylum
eligibility will be considered during
credible fear interviews and reviews,
and those who are subject to the
limitation and are unable to establish a
significant possibility of showing
exceptionally compelling circumstances
will be screened for eligibility for
statutory withholding of removal and
CAT protection under a heightened
‘‘reasonable probability of persecution
or torture’’ standard—a higher standard
than the ‘‘reasonable possibility’’
standard under the Circumvention of
Lawful Pathways rule.
As the Departments described more
fully in the Circumvention of Lawful
Pathways rule, the current asylum
system—in which a high number of
migrants are initially determined to be
eligible to pursue their claims, even
though most ultimately are not granted
asylum or protection at the merits
stage—has contributed to the growing
backlog of cases awaiting review by
IJs.165 The practical result 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.166 As the
demographics of border encounters have
shifted in recent years to include
Mexicans claiming fear at a higher rate,
and large numbers of non-Mexicans—
who have historically been far more
likely to assert fear claims—and as the
164 8
CFR 235.3(b)(2).
FR at 31315.
166 See supra note 25.
165 88
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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.167
The provisions in this rule are
intended to be emergency measures that
impact the expedited removal process
and eligibility for relief or protection
only for those who enter the United
States across the southern border during
emergency border circumstances.
Unfortunately, the significant efforts the
Departments have made to address such
circumstances to date have not been as
effective as they could have been had
167 According to OHSS Persist data, Mexican
nationals continued to account for 89 percent of
total CBP SWB encounters in FY 2010, with
northern Central Americans accounting for 8
percent and all other nationalities accounting for 3
percent. March 2024 OHSS Persist Dataset.
Northern Central Americans’ share of total CBP
SWB encounters increased to 21 percent by FY
2012 and averaged 48 percent from FY 2014 to FY
2019, the last full year before the start of the
COVID–19 pandemic. Id. Nationals from all other
countries except Mexico and the northern Central
American countries accounted for an average of 5
percent of total CBP SWB encounters from FY 2010
to FY 2013, and for 10 percent of total encounters
from FY 2014 to FY 2019. Id. This transition has
accelerated since the start of FY 2021, as Mexican
nationals accounted for approximately 32 percent of
total CBP SWB encounters in FY 2021 through
March 2024, including roughly 29 percent in the
first six months of FY 2024; northern Central
Americans accounted for roughly 25 percent from
FY 2021 through March 2024 (20 percent in FY
2024 through March 2024); and all other countries
accounted for roughly 42 percent from FY 2021
through March 2024, including roughly 51 percent
of FY 2024 encounters through March 2024. Id.
For noncitizens encountered at and between SWB
POEs from FY 2014 through FY 2019 who were
placed in expedited removal, nearly 6 percent of
Mexican nationals made fear claims that were
referred to USCIS for determination. OHSS analysis
of Enforcement Lifecycle data as of December 31,
2023. In contrast, as discussed in Section III.B.3.a.iv
of this preamble, from May 12, 2023 to March 31,
2024, 29 percent of all Mexican nationals processed
for expedited removal at the SWB made fear claims,
including 39 percent in February 2024. OHSS
analysis of UIP ER Daily Report Data Dashboard as
of April 2, 2024.
For noncitizens encountered at and between SWB
POEs from FY 2014 through FY 2019, nearly 57
percent of people from northern Central America
(i.e., El Salvador, Guatemala, and Honduras), and
close to 90 percent of all other nationalities made
fear claims that were referred to USCIS for
determination. OHSS analysis of Enforcement
Lifecycle data as of December 31, 2023. Of note,
according to OHSS analysis of historic EOIR and
CBP data, there is a clear correlation since FY 2000
between the increasing time it takes to complete
immigration proceedings, which results in a lower
share of noncitizens being removed, and the growth
in non-Mexican encounters at and between SWB
POEs. Both trends accelerated in the 2010s, as nonMexicans became the majority of such encounters,
and they have accelerated further since FY 2020, as
people from countries other than Mexico and
northern Central America now account for the
largest numbers of such encounters. OHSS analysis
of March 2024 OHSS Persist Dataset.
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Congress provided the personnel,
infrastructure, technology, and broader
reforms that the Departments have
requested. Communities all over the
United States are being adversely
impacted as a result. The goal of these
measures is to quickly reduce unlawful
and unauthorized entries at the border
and to quickly impose decisions and
consequences on those who cross our
border unlawfully and lack a legal basis
to remain.
3. Description of the Rule and
Explanation of Regulatory Changes
This rule amends the Departments’
regulations to further the purpose of the
Presidential Proclamation of June 3,
2024, which suspends and limits entry
along the southern border to address the
emergency border circumstances
outlined in that Proclamation. The rule
does so by amending 8 CFR 208.13 and
1208.13 and adding regulatory
provisions at 8 CFR 208.35, 235.15, and
1208.35 that (1) limit asylum eligibility
for those who enter the United States
across the southern border during
emergency border circumstances
described in the Proclamation and this
rule, are not described in section 3(b) of
the Proclamation, and do not establish
the existence of exceptionally
compelling circumstances; (2) alter the
process for advising noncitizens of their
rights to seek asylum and for identifying
which noncitizens to refer to an AO for
credible fear screening during
emergency border circumstances; and
(3) alter the standard for screening for
statutory withholding of removal and
CAT protection while such
circumstances exist.168 Below is an
explanation of the limitation and each
change to the expedited removal and
fear screening process. The specific
content of each provision and
amendment is set forth in detail in
Section III.C of this preamble.
a. Limitation on Asylum Eligibility
As discussed above in Sections III.B.1
and 2 of this preamble, irregular
migration is continuing to strain the
Departments’ ability to timely process,
detain, and remove, as appropriate, and
168 The Departments understand that the
President has directed the agencies to promptly
consider issuing ‘‘any instructions, orders, or
regulations as may be necessary to address the
circumstances at the southern border.’’ Such actions
may include other measures that are not addressed
in this rule, and the Departments have considered
and are continuing to consider such other actions.
The Departments believe that the changes made in
this rule are the most appropriate means to begin
addressing the concerns identified in the
Proclamation, and the Departments will assess the
effectiveness of this rule as they continue to
consider other actions to respond to the President’s
direction.
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thus to swiftly deliver timely decisions
and timely consequences to noncitizens
at the southern border. This challenge is
exacerbated by the sheer number of
migrants who invoke credible fear
procedures at a POE or when they are
encountered between POEs without
following the lawful, safe, and orderly
processes that DHS has made available.
The Departments have implemented the
Circumvention of Lawful Pathways rule
and complementary measures, but
Congress has not provided the resources
necessary to timely and effectively
process and interview all those who
invoke credible fear procedures through
the expedited removal process at the
southern border, particularly during
times in which the country’s border
faces an emergency of the magnitude
described in the Proclamation. The
record numbers of migrants invoking
the credible fear procedures at the
southern border exacerbate the risk of
severe overcrowding in USBP facilities
and POEs, and it creates a situation in
which large numbers of migrants—only
a small proportion of whom are likely
to be granted asylum—are not able to be
expeditiously removed but are instead
referred to backlogged immigration
courts. This situation is self-reinforcing:
the expectation of a lengthy stay in the
United States and the lack of timely
consequences for irregular migration
encourage more migrants without
potentially meritorious claims for
asylum to make the dangerous journey
to the southern border to invoke
credible fear procedures at the southern
border and take their chances on being
allowed to remain in the country for a
lengthy period.
For these reasons, pursuant to section
208(b)(1)(A), (b)(2)(C), (d)(5)(B) of the
INA, 8 U.S.C. 1158(b)(1)(A), (b)(2)(C),
(d)(5)(B), the Departments are adopting
a limitation on asylum eligibility for
noncitizens who (1) enter the United
States across the southern border during
emergency border circumstances; (2) are
not described in section 3(b) of the
Proclamation; and (3) do not establish
exceptionally compelling
circumstances. See 8 CFR 208.13(g),
208.35(a), 1208.13(g), 1208.35(a).
Section 3(b) of the Proclamation lists
classes of individuals to whom the
Proclamation’s suspension and
limitation on entry and this limitation
on asylum eligibility does not apply;
those classes are discussed in Section
II.A of this preamble. The exceptionally
compelling circumstances exception to
this rule’s limitation on asylum
eligibility is discussed below in
Sections III.B.3.a and III.C.2 of this
preamble.
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The limitation on asylum eligibility is
needed to address the emergency border
circumstances outlined in the
Proclamation and this rule and responds
to the President’s direction to the
Secretary of Homeland Security and the
Attorney General to promptly consider
issuing such instructions, orders, or
regulations as may be necessary to
address the circumstances at the
southern border, including any
additional limitations and conditions on
asylum eligibility that they determine
are warranted, subject to any exceptions
that they determine are warranted.
Under the circumstances described in
the Proclamation, the Departments
assess that the limitation on asylum is
necessary to help streamline the
Departments’ processing of noncitizens,
thereby conserving limited resources
during the emergency border
circumstances described in the
Proclamation and this rule and allowing
for enough resources to continue to
process lawful cross-border trade and
travel and noncitizens who present in a
safe and orderly manner at a POE.169
The Departments have further made
the determination to apply the
limitation on asylum eligibility to those
who enter the United States across the
southern border during emergency
border circumstances irrespective of
whether the noncitizen is encountered
during such emergency border
circumstances. This will permit a
consistent application of the rule to all
those who enter across the southern
border during such circumstances and
169 When it comes to determining the
applicability of the Proclamation, CBP immigration
officers, who first encounter noncitizens when they
enter or attempt to enter, must determine whether
a noncitizen is subject to the Proclamation under
section 3(a), including whether the noncitizen is
excluded from the suspension and limitation on
entry under section 3(b). See 8 CFR 208.35(a),
1208.35(a). The Departments anticipate that, when
determining whether the limitation on asylum
eligibility applies, AOs and IJs will rarely have
grounds to reach a different result from the CBP
immigration officers. See 8 CFR 208.35(b),
1208.35(b). In part, the Proclamation’s application
turns on straightforward questions of status—e.g.,
whether someone was a noncitizen, Proclamation
sec. 3(a)(i); was a noncitizen national, id. sec.
3(b)(i); was a lawful permanent resident, id. sec.
3(b)(ii); was a UC, id. sec. 3(b)(iii); or had a valid
visa or other lawful permission to seek entry or
admission into the United States or presented at a
POE pursuant to a pre-scheduled time and place,
id. sec. 3(b)(v). The Proclamation’s application also
turns on questions of historical fact, including
whether the suspension and limitation on entry was
in place at the relevant time, id. sec. 3(a), and
whether someone was ‘‘permitted to enter by . . .
a CBP immigration officer’’ based on two sets of
specified considerations ‘‘at the time of the entry or
encounter that warranted permitting the noncitizen
to enter,’’ id. Sec. 3(b)(vi)–(vii). These two
exceptions allow CBP immigration officers to
permit the entry of noncitizens who present at the
encounter with—for example—medical issues
requiring immediate attention. See id. sec. 3(b)(vi).
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are subject to this limitation on asylum
eligibility, including those who evade
detection at the southern border and are
later placed in section 240 removal
proceedings, as well as those who
affirmatively apply for asylum. The
Departments have considered applying
the rule’s asylum limitation only to
those who enter and are encountered at
the southern border during emergency
border circumstances. The Departments
believe, however, that the rule’s asylum
limitation should avoid creating an
incentive for noncitizens to take risky
measures to evade detection, which
would further strain resources dedicated
to apprehension at the border.170
Additionally, the approach adopted in
this rule is consistent with the
Circumvention of Lawful Pathways rule,
which, with narrow exceptions, applies
to all those who enter during the twoyear period currently specified in that
rule, regardless of whether they are
apprehended at or near the border
during the 14-day period immediately
after entry or within 100 miles of the
border. See 8 CFR 208.33(c), 1208.33(d).
Moreover, the Departments note that the
provisions of §§ 208.35(b) and 235.15
would be applicable only to those who
have entered the United States during
the emergency border circumstances
described in the Proclamation and this
rule and are processed for expedited
removal. Thus, those provisions would
not apply to those who have long since
entered the United States. Accordingly,
the Departments have determined that it
is reasonable to apply this rule’s
limitation on asylum eligibility
consistent with the Circumvention of
Lawful Pathways rule, without regard to
the date of encounter or commencement
of proceedings.
Even if a noncitizen entered the
United States across the southern border
during emergency border circumstances
and is not described in section 3(b) of
the Proclamation, they may avoid
application of the limitation on asylum
eligibility if they establish by a
preponderance of the evidence that
exceptionally compelling circumstances
exist.171 Such circumstances necessarily
170 The Departments note that adjudicators
already make determinations regarding the
noncitizen’s date of arrival when determining
whether the noncitizen is barred from filing an
asylum application (unless meeting an exception)
within one year of arrival. See INA 208(a)(2)(B) and
(D), 8 U.S.C. 1158(a)(2)(B) and (D).
171 The Departments decline to adopt an
exception mirroring the exception from the
Circumvention of Lawful Pathways rule for those
who present at a POE without a pre-scheduled time
and place but show 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. See
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exist where the noncitizen demonstrates
that, at the time of entry, the noncitizen
or a member of the noncitizen’s family
as described in 8 CFR 208.30(c) with
whom the noncitizen was traveling
faced an acute medical emergency;
faced an imminent and extreme threat to
their life or safety; or was a ‘‘victim of
a severe form of trafficking in persons’’
as defined in 8 CFR 214.11.172 8 CFR
208.35(a)(2)(i), 1208.35(a)(2)(i). Acute
medical emergencies would include, but
would not be limited to, situations in
which someone faces a life-threatening
medical emergency or faces acute and
grave medical needs that cannot be
8 CFR 208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). This
rule, unlike the Circumvention of Lawful Pathways
rule, applies only in the emergency circumstances
described in the Proclamation and the rule, where
encounters strain the border security and
immigration systems’ capacity. And although the
Circumvention of Lawful Pathways rule was also
aimed at reducing irregular migration, it was
focused on encouraging the use of lawful pathways,
rather than the number of daily entrants. In these
emergency border circumstances, this rule’s
exception for ‘‘exceptionally compelling
circumstances’’ captures individuals with a timesensitive imperative; such individuals may also be
permitted to enter under one of the exceptions in
section 3(b) of the Proclamation. And in these
emergency border circumstances, the Departments
have determined that individuals who do not
qualify for this exception should wait for a CBP One
appointment. Moreover, under the Circumvention
of Lawful Pathways rule, this exception requires
additional questioning of any noncitizen who
entered at a POE and is subject to the rule—time
that, in the aggregate, could diminish the
Departments’ ability to deploy resources to address
the emergency circumstances that support
application of this rule.
In addition, the Departments did not include an
exception for a noncitizen who sought asylum or
other protection in a country through which the
noncitizen traveled and received a final decision
denying that application. See 8 CFR
208.33(a)(2)(ii)(C), 1208.33(a)(2)(ii)(C). This rule
serves a different purpose than 8 CFR
208.33(a)(2)(ii)(C) and 1208.33(a)(2)(ii)(C);
specifically, this rule is aimed at deterring irregular
migration and speeding up the border process
during a period of high encounters, rather than
encouraging noncitizens to seek protection in other
countries. During the emergency border
circumstances described in the Proclamation and
this rule, narrowing the exceptions to those who are
unable to wait for an appointment is key. Those
who sought and were denied protection in another
country will still be eligible for asylum if they enter
pursuant to an appointment, meet another
exception to the Proclamation, or establish
exceptionally compelling circumstances, such as
that at the time of entry they faced an acute medical
emergency or an imminent and extreme threat to
life or safety.
172 The Departments note that noncitizens who
are a ‘‘victim of a severe form of trafficking in
persons’’ are already excepted from the
Proclamation’s suspension and limitation on entry
as provided in section 3(b) of the Proclamation and
are therefore also not subject to the rule’s limitation
on asylum eligibility. Nonetheless, the Departments
have opted to retain ‘‘victims of severe form of
trafficking in persons’’ as an exceptional
circumstance to avoid any confusion and to ensure
that the exceptions in this rule mirror the rebuttal
circumstances the Departments adopted in the
Circumvention of Lawful Pathways rule.
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adequately addressed outside of the
United States. Examples of imminent
and extreme threats would include
imminent threats of rape, kidnapping,
torture, or murder that the noncitizen
faced at the time the noncitizen crossed
the southern border, such that they
cannot wait for an appointment at a prescheduled time and place or until this
IFR’s limitation on asylum eligibility is
not in effect for an opportunity to
present at a POE without putting their
life or well-being at extreme risk; it
would not include generalized threats of
violence.
The ‘‘exceptionally compelling
circumstances’’ exception mirrors the
rebuttal circumstance the Departments
adopted in the Circumvention of Lawful
Pathways rule. See 8 CFR
208.33(a)(3)(i), 1208.33(a)(3)(i). That
exception is adopted here for the
reasons articulated for adopting it in the
Circumvention of Lawful Pathways
NPRM and rule and the exception is
intended to apply to the same
circumstances identified in that NPRM
and rule. See, e.g., 88 FR at 11723; 88
FR at 31318, 31338, 31348, 31351,
31380, 31390, 31391–93.
Like the Circumvention of Lawful
Pathways rule, this rule recognizes an
additional exception that avoids the
separation of families. See 8 CFR
208.35(c), 1208.35(c). Those noncitizens
who are subject to the limitation on
asylum eligibility and who do not
establish exceptionally compelling
circumstances under 8 CFR
208.35(a)(2)(i) or 1208.35(a)(2)(i) would
be able to continue to apply for statutory
withholding of removal and protection
under the CAT, forms of protection to
which the limitation does not apply if
placed in section 240 removal
proceedings. Unlike asylum, spouses
and minor children are not eligible for
derivative grants of statutory
withholding of removal or CAT
protection. Compare INA 208(b)(3)(A), 8
U.S.C. 1158(b)(3)(A) (‘‘[a] spouse or
child . . . of an alien who is granted
asylum under this subsection may, if
not otherwise eligible for asylum under
this section, be granted the same status
as the alien if accompanying, or
following to join, such alien’’), with INA
241(b)(3), 8 U.S.C. 1231(b)(3) (not
providing for derivative statutory
withholding of removal), and 8 CFR
1208.16(c) (not providing for derivative
CAT protection); see also Sumolang v.
Holder, 723 F.3d 1080, 1083 (9th Cir.
2013) (recognizing that the asylum
statute allows for derivative
beneficiaries of the principal applicant
for asylum, but that the withholding of
removal statute makes no such
allowance). Again, mirroring EOIR’s
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48733
family unity provision in the
Circumvention of Lawful Pathways rule,
see 8 CFR 1208.33(c), where a principal
asylum applicant is eligible for statutory
withholding of removal or CAT
protection and would be granted asylum
but for the limitation on eligibility
established in this rule, and where an
accompanying spouse or child as
defined in section 208(b)(3)(A) of the
INA, 8 U.S.C. 1158(b)(3)(A), does not
independently qualify for asylum or
other protection from removal or the
principal asylum applicant has a spouse
or child who would be eligible to follow
to join that applicant as described in
section 208(b)(3)(A) of the INA, 8 U.S.C.
1158(b)(3)(A), the noncitizen shall be
excepted from the limitation on
eligibility by the IJ if placed in section
240 removal proceedings. 8 CFR
1208.35(c). The Departments have
determined that the possibility of
separating the family should be avoided.
See E.O. 14011, Establishment of
Interagency Task Force on the
Reunification of Families, 86 FR 8273,
8273 (Feb. 2, 2021) (‘‘It is the policy of
my Administration to respect and value
the integrity of families seeking to enter
the United States.’’).
In the Circumvention of Lawful
Pathways rule, the Departments
included a family unity provision in
EOIR’s regulations but not DHS’s. The
Departments did so because they
decided at that time that those who an
AO concludes are subject to the Lawful
Pathways presumption and who are not
able to establish an exception or rebut
the presumption during a credible fear
screening may not be placed into the
asylum merits interview process and
may instead only be issued an NTA and
placed into section 240 removal
proceedings. See 88 FR at 11725–26; 88
FR at 31336–37. For purposes of this
rule, the Departments have allowed for
an asylum merits interview process at
the discretion of USCIS that includes
USCIS discretion to apply a parallel
family unity provision. See 8 CFR
208.35(c). This provision is
discretionary to allow USCIS flexibility
as it implements the new process. The
Departments request comment on
whether to adopt a non-discretionary
family unity provision for the asylum
merits interview process in a final rule.
i. Authority To Impose Additional
Limitations on Asylum Eligibility
The Secretary and the Attorney
General have authority to adopt this
additional limitation on asylum
eligibility. Both have long exercised
discretion, now expressly authorized by
Congress, to create new rules governing
the granting of asylum. When section
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208 of the INA was first enacted as part
of the Refugee Act of 1980, it simply
provided that the Attorney General
‘‘shall establish a procedure’’ for a
noncitizen ‘‘to apply for asylum,’’ and
that the noncitizen ‘‘may be granted
asylum in the discretion of the Attorney
General if the Attorney General
determines that such [noncitizen] is a
refugee within the meaning of section
1101(a)(42)(A).’’ 8 U.S.C. 1158(a) (1982).
In 1980, the Attorney General, in the
exercise of that broad statutory
discretion, established several
mandatory bars to the granting of
asylum. See 8 CFR 208.8(f)(1) (1980);
Aliens and Nationality; Refugee and
Asylum Procedures, 45 FR 37392, 37392
(June 2, 1980). In 1990, the Attorney
General substantially amended the
asylum regulations, but exercised his
discretion to retain the mandatory bars
to asylum eligibility related to
persecution of others on account of a
protected ground, conviction of a
particularly serious crime in the United
States, firm resettlement in another
country, and the existence of reasonable
grounds to regard the noncitizen as a
danger to the security of the United
States. See Aliens and Nationality;
Asylum and Withholding of Deportation
Procedures, 55 FR 30674, 30678, 30683
(July 27, 1990); see also Yang v. INS, 79
F.3d 932, 936–39 (9th Cir. 1996)
(upholding firm-resettlement bar);
Komarenko v. INS, 35 F.3d 432, 436 (9th
Cir. 1994) (upholding particularlyserious-crime bar), abrogated on other
grounds by Abebe v. Mukasey, 554 F.3d
1203 (9th Cir. 2009) (en banc).
In that 1990 rule, the Attorney
General also codified another limitation
that was first discussed in Matter of
Chen, 20 I&N Dec. 16 (BIA 1989). 55 FR
at 30678. Specifically, although the
statute defines a ‘‘refugee’’ and thus
allows asylum for a noncitizen based on
a showing of past ‘‘persecution or a
well-founded fear of persecution,’’ INA
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A),
by regulation, a showing of past
persecution only gives rise to a
presumption of a well-founded fear of
future persecution, which can be
rebutted by showing that circumstances
have changed such that the noncitizen
no longer has a well-founded fear of
future persecution or that the noncitizen
can relocate to avoid persecution and
under all the circumstances it is
reasonable to expect the noncitizen to
do so.173 8 CFR 208.13(b)(1),
1208.13(b)(1). Where the presumption is
rebutted, the adjudicator, ‘‘in the
173 As noted below, the internal relocation
provision was added in 2000 by Asylum
Procedures, 65 FR 76121, 76126 (Dec. 6, 2000).
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exercise of his or her discretion, shall
deny the asylum application.’’ 174 8 CFR
208.13(b)(1)(i), 1208.13(b)(1)(i). In 1990,
Congress added a mandatory statutory
bar for those with aggravated felony
convictions. Immigration Act of 1990,
Public Law 101–649, sec. 515, 104 Stat.
4978, 5053.
With the passage of IIRIRA, Congress
added three categorical statutory bars to
the ability to apply for asylum for (1)
noncitizens who can be removed,
pursuant to a bilateral or multilateral
agreement, to a third country where
they would not be persecuted on
account of a specified ground; (2)
noncitizens who failed to apply for
asylum within one year of arriving in
the United States; and (3) noncitizens
who have previously applied for asylum
and had the application denied. Public
Law 104–208, div. C, sec. 604, 110 Stat.
3009, 3009–690 to –691. Congress also
adopted six mandatory bars to asylum
eligibility that largely reflected the preexisting, discretionary bars that had
been set forth in the Attorney General’s
asylum regulations. These bars cover (1)
noncitizens who ‘‘ordered, incited,
assisted, or otherwise participated’’ in
the persecution of others; (2)
noncitizens who, having been convicted
of a ‘‘particularly serious crime,’’
constitute a danger to the United States;
(3) noncitizens for whom there are
serious reasons to believe committed a
‘‘serious nonpolitical crime outside the
United States’’ before arriving in the
United States; (4) noncitizens for whom
there are reasonable grounds to regard
as a ‘‘danger to the security of the
United States’’; (5) noncitizens who are
removable under a set of specified
grounds relating to terrorist activity; and
(6) noncitizens who were ‘‘firmly
resettled’’ in another country prior to
arriving in the United States. Id. at
3009–691 (codified at INA 208(b)(2)(A),
8 U.S.C. 1158(b)(2)(A)). Congress further
added that aggravated felonies, defined
in section 101(a)(43) of the INA, 8
U.S.C. 1101(a)(43), would be considered
‘‘particularly serious crime[s].’’ Id. at
3009–692 (codified at INA
208(b)(2)(B)(i), 8 U.S.C. 1158(b)(2)(B)(i)).
In IIRIRA, Congress also made clear
that the Executive Branch may continue
to exercise its broad discretion in
determining whether to grant asylum by
creating additional limitations and
174 There
is a narrow exception to this mandatory
discretionary ground for denial, called
‘‘humanitarian asylum,’’ where the noncitizen
establishes ‘‘compelling reasons for being unwilling
or unable to return to the [noncitizen’s] country
arising out of the severity of . . . past persecution’’
or ‘‘that there is a reasonable possibility that [the
non-citizen] may suffer other serious harm upon
removal to [the noncitizen’s] country.’’ 8 CFR
208.13(b)(1)(iii), 1208.13(b)(1)(iii).
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conditions on the granting of asylum.
The INA 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.’’ INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see
6 U.S.C. 552(d); INA 103(a)(1), 8 U.S.C.
1103(a)(1). In addition, while section
208(d)(5) of the INA, 8 U.S.C.
1158(d)(5), establishes certain
procedures for consideration of asylum
applications, Congress specified 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,’’ INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B). In sum, the current
statutory framework retains the broad
discretion of the Attorney General (and,
after the HSA, also the Secretary) to
adopt additional limitations on the
granting of asylum and procedures for
implementing those limitations.
Previous Attorneys General and
Secretaries have since invoked their
authorities under section 208 of the
INA, 8 U.S.C. 1158, to establish
eligibility bars beyond those required by
the statute itself. See, e.g., Asylum
Procedures, 65 FR 76121, 76126 (Dec. 6,
2000) (requiring consideration of the
applicant’s ability to relocate safely in
his or her home country in assessing
asylum eligibility); Aliens Subject to a
Bar on Entry Under Certain Presidential
Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9,
2018) (‘‘Proclamation Bar IFR’’) (limit
on eligibility for applicants subject to
certain presidential proclamations); 175
Asylum Eligibility and Procedural
Modifications, 85 FR 82260 (Dec. 17,
2020) (‘‘TCT Bar final rule’’) (limit on
eligibility for certain noncitizens who
failed to apply for protection while in a
third country through which they
transited en route to the United
States); 176 Procedures for Asylum and
Bars to Asylum Eligibility, 85 FR 67202
(Oct. 21, 2020) (limits on eligibility for
noncitizens convicted of certain
criminal offenses); 177 Inspection and
Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of
175 See O.A. v. Trump, 404 F. Supp. 3d 109
(D.D.C. 2019) (vacating Proclamation Bar IFR).
176 See E. Bay Sanctuary Covenant v. Barr, 519 F.
Supp. 3d 663 (N.D. Cal. 2021) (preliminarily
enjoining the TCT Bar final rule).
177 See Pangea Legal Servs. v. U.S. Dep’t of
Homeland Sec., 501 F. Supp. 3d 792, 827 (N.D. Cal.
2020) (granting temporary restraining order against
operation of the rule and ordering defendants to
show cause why the rule should not be
preliminarily enjoined).
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Removal Proceedings; Asylum
Procedures, 62 FR 10312, 10342 (Mar. 6,
1997) (IFR codifying mandatory bars
and adding provision allowing for
discretionary denials of asylum where
‘‘the alien can be removed to a third
country which has offered resettlement
and in which the alien would not face
harm or persecution’’); see also Yang, 79
F.3d at 936–39 (upholding firmresettlement bar); Komarenko, 35 F.3d at
436 (upholding particularly-seriouscrime bar). Consistent with this
historical practice, the Secretary and
Attorney General exercised this
authority when adopting the Lawful
Pathways presumption of asylum
ineligibility. See Circumvention of
Lawful Pathways rule, 88 FR 31314.178
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ii. Litigation Over the Proclamation Bar
IFR
This rule places a limitation on
asylum eligibility for those noncitizens
who are described in the Proclamation
subject to certain exceptions. The
Departments acknowledge prior judicial
decisions addressing a different limit on
asylum eligibility adopted pursuant to
section 208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), relating to suspensions
and limitations on entry by presidential
proclamation under section 212(f) of the
INA, 8 U.S.C. 1182(f). In East Bay
Sanctuary Covenant v. Biden, 993 F.3d
640 (9th Cir. 2021) (‘‘East Bay III’’), the
Ninth Circuit affirmed a preliminary
injunction against the Proclamation Bar
IFR, which categorically rendered
certain noncitizens ineligible for asylum
if they entered the United States in
violation of a presidential proclamation
or other presidential order suspending
or limiting the entry of noncitizens
along the southern border. The relevant
presidential proclamation in that case
suspended entry of all migrants along
the southern border except those who
entered at a POE. See id. at 659. The
court held that the Proclamation Bar IFR
was inconsistent with section 208(a) of
the INA, 8 U.S.C. 1158(a), which
provides that any migrant ‘‘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
178 The Circumvention of Lawful Pathways rule
was vacated by East Bay Sanctuary Covenant v.
Biden, 683 F. Supp. 3d 1025 (N.D. Cal. 2023). But
the Ninth Circuit has stayed that vacatur pending
appeal, see E. Bay Sanctuary Covenant v. Biden,
No. 23–16032 (9th Cir. Aug. 3, 2023), and thus the
rule and its presumption remain in effect. On
February 21, 2024, the Ninth Circuit placed the case
in abeyance pending settlement discussions. E. Bay
Sanctuary Covenant v. Biden, 93 F.4th 1130 (9th
Cir. 2024).
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United States waters), irrespective of
such alien’s status, may apply for
asylum.’’ Id. at 670.179
The Departments regard this rule as
substantially different than the rule the
Ninth Circuit deemed invalid in East
Bay III. The Proclamation and limitation
on asylum eligibility at issue here differ
significantly from the prior categorical
bar on ‘‘manner of entry’’ because they
do not treat the manner of entry as
dispositive in determining eligibility.
Rather, the limitation at issue here turns
on whether—during emergency border
circumstances described in the
Proclamation and this rule—an
individual has followed the lawful, safe,
and orderly pathways that the United
States Government has established
during these emergency situations when
it is essential that noncitizens use such
pathways to ensure the United States
Government’s ability to manage the
border. And even during these
situations, AOs and IJs have the ability
to except noncitizens from the rule’s
asylum limitation where the noncitizens
establish that an exceptionally
compelling circumstance exists. See 8
CFR 208.35(a)(2)(i), 1208.35(a)(2)(i). For
example, a noncitizen may be excepted
from the limitation on asylum eligibility
if they experienced an acute medical
emergency at the time of entry
regardless of where that entry occurred.
Other exceptionally compelling
circumstances include, but are not
limited to, if the noncitizen
demonstrates that, at the time of entry,
the noncitizen or a member of their
family as described in 8 CFR 208.30(c)
with whom the noncitizen was traveling
faced an imminent and extreme threat to
their life or safety or was a ‘‘victim of
a severe form of trafficking in persons’’
as defined in 8 CFR 214.11. 8 CFR
208.35(a)(2)(i)(B)–(C),
1208.33(a)(2)(i)(B)–(C). Indeed, the
rule’s exceptionally compelling
circumstances exception is identical to
the grounds that would rebut the
presumption of asylum ineligibility
under the Circumvention of Lawful
Pathways rule, which has been allowed
to continue in effect despite litigation
challenging its validity. See E. Bay
Sanctuary Covenant v. Biden, No. 23–
16032, 2023 WL 11662094, at *1 (9th
Cir. Aug. 3, 2023) (staying order
vacating Circumvention of Lawful
Pathways rule pending appeal).
Furthermore, this rule does not
implicate the same concerns as the prior
179 The court also held that the Proclamation Bar
IFR likely did not properly fall under the good
cause or foreign affairs exceptions to notice-andcomment rulemaking under 5 U.S.C. 553(a)(1) and
(b)(B). See East Bay III, 993 F.3d at 676–77.
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categorical bar based on ‘‘manner of
entry’’ because it applies only to
individuals who enter during
emergency border circumstances and
would not treat solely the manner of
entry as dispositive in determining
eligibility even during such
circumstances, given that the rule
applies both at and between POEs and
in light of the exceptions available
under section 3(b) of the Proclamation
and for exceptionally compelling
circumstances under 8 CFR 208.35(a)(2)
and 1208.35(a)(2).
Moreover, the Departments disagree
with important aspects of the reasoning
that the district court and Ninth Circuit
relied upon in East Bay III. The
Departments argued in East Bay III that
section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1), by its plain terms requires
only that a noncitizen be permitted to
‘‘apply’’ for asylum, regardless of their
manner of entry. It does not require that
a noncitizen be eligible to be granted
asylum, regardless of their manner of
entry. Indeed, the BIA has long taken
account of a noncitizen’s manner of
entry in determining whether to grant
asylum. See Matter of Pula, 19 I&N Dec.
467, 473 (BIA 1987) (holding that
‘‘manner of entry . . . is a proper and
relevant discretionary factor to consider
in adjudicating asylum applications’’).
The court in East Bay III rejected this
argument, stating that ‘‘[e]xplicitly
authorizing a refugee to file an asylum
application because he arrived between
ports of entry and then summarily
denying the application for the same
reason borders on absurdity,’’ 993 F.3d
at 670 (emphasis omitted), but the
statute draws a clear distinction
between the two. Section 208(a) of the
INA, 8 U.S.C. 1158(a), governs who may
‘‘apply for asylum’’ and includes several
categorical bars, such as the bar for
applications for noncitizens present in
the country for more than one year. INA
208(a)(1), (2)(B), 8 U.S.C. 1158(a)(1),
(2)(B); see INA 241(a)(5), 8 U.S.C.
1231(a)(5). Section 208(b) of the INA, 8
U.S.C. 1158(b), in turn, governs who is
eligible to be granted asylum.
Specifically, section 208(b)(1)(A) of the
INA, 8 U.S.C. 1158(b)(1)(A), provides
that the Attorney General or the
Secretary ‘‘may grant asylum to an alien
who has applied,’’ INA 208(b)(2), 8
U.S.C. 1158(b)(2), then specifies six
categories of noncitizens to whom
‘‘[p]aragraph (1)’’ (i.e., the discretionary
authority to grant asylum to an
applicant) ‘‘shall not apply.’’ Any
noncitizen falling within one of those
categories may apply for asylum under
section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1), but is categorically ineligible
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to receive it under section 208(b) of the
INA, 8 U.S.C. 1158(b).
The broad preemptive sweep that the
Ninth Circuit attributed to section
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1),
also fails to account for the
discretionary nature of asylum. No
noncitizen ever has a right to be granted
asylum. The ultimate ‘‘decision whether
asylum should be granted to an eligible
alien is committed to the Attorney
General’s [and the Secretary’s]
discretion.’’ INS v. Aguirre-Aguirre, 526
U.S. 415, 420 (1999). The East Bay III
court did not dispute that manner of
entry is a permissible consideration in
determining whether to exercise that
discretion to grant asylum in individual
cases. 99 F.3d at 671; see also Matter of
Pula, 19 I&N Dec. at 473; Fook Hong
Mak v. INS, 435 F.2d 728, 730 (2d Cir.
1970) (Friendly, J.) (upholding the INS’s
authority to ‘‘determine[ ] certain
conduct to be so inimical to the
statutory scheme that all persons who
have engaged in it shall be ineligible for
favorable consideration’’).
The East Bay III court also suggested
that a regulation categorically barring
asylum based on manner of entry is
inconsistent with the United States’
commitments under the Refugee
Protocol, in which the United States
adhered to specified provisions of the
Refugee Convention. See 993 F.3d at
972–75. Even accepting East Bay III’s
reasoning on this point, that reasoning
is limited to a categorical eligibility bar
premised on manner of entry; this IFR
does not implicate the same concerns as
the prior categorical bar on ‘‘manner of
entry’’ for the reasons identified above.
In any event, the East Bay III court’s
conclusion was incorrect. The United
States’ non-refoulement obligation
under Article 33 of the Refugee
Convention is implemented by statute
through the provision in section
241(b)(3) of the INA, 8 U.S.C.
1231(b)(3)(A), for mandatory
withholding of removal. This rule
specifically preserves the availability of
that protection from removal. The INA’s
provision in section 208 of the INA, 8
U.S.C. 1158, for the discretionary
granting of asylum instead aligns with
Article 34 of the Refugee Convention,
which is precatory and does not require
any signatory to actually grant asylum to
all those who are eligible. See, e.g., INS
v. Cardoza-Fonseca, 480 U.S. 421, 440–
41 (1987). The East Bay III court also
misread Article 31(1) of the Refugee
Convention, which pertains only to
‘‘penalties’’ imposed ‘‘on account of
. . . illegal entry or presence’’ on
refugees who, among other criteria, are
‘‘coming directly from a territory
where’’ they face persecution. See, e.g.,
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Singh v. Nelson, 623 F. Supp. 545, 560–
61 & n.14 (S.D.N.Y. 1985) (quoting the
Refugee Convention). And a bar to the
granting of the discretionary relief of
asylum is not a penalty under Article
31(1), especially given that the
noncitizen remains eligible to apply for
statutory withholding of removal, which
implements U.S. non-refoulement
obligations under the Refugee Protocol.
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).
iii. Litigation Over Other Limitations
The Departments also acknowledge
other prior precedent concerning the
scope of the Departments’ statutory
rulemaking authority under section
208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C). Specifically, when
reviewing the TCT Bar final rule, the
Ninth Circuit in East Bay Sanctuary
Covenant v. Garland, 994 F.3d 962 (9th
Cir. 2020) (‘‘East Bay I’’), held that a
new condition on asylum eligibility
under section 208(b)(2)(C) of the INA, 8
U.S.C. 1158(b)(2)(C), must ‘‘further[ ] the
purpose’’ of another provision in section
208 to be ‘‘consistent with’’ it. 994 F.3d
at 977, 977–80. The Departments
disagree. A requirement that additional
asylum limitations can only ‘‘further[ ]
the purpose’’ of the existing exceptions
by either targeting threats to the nation
or promoting the purposes the Ninth
Circuit identified in the safe-thirdcountry or firm-resettlement bars, id. at
977, is irreconcilable with the statute’s
meaning and conflicts with its history.
Not only has Congress adopted asylum
bars that do not further the purpose the
Ninth Circuit identified—e.g., the oneyear filing deadline and the bar on
successive applications—it has granted
to the Departments the broad discretion
to add more such bars. The Ninth
Circuit’s approach is also inconsistent
with Trump v. Hawaii, 585 U.S. 667,
690–91 (2018) (INA’s express provisions
governing entry ‘‘did not implicitly
foreclose the Executive from imposing
tighter restrictions,’’ even if restrictions
addressed a subject that is ‘‘similar’’ to
one that Congress ‘‘already touch[ed]
on’’). The statutory asylum bars likewise
do not foreclose imposing further
conditions, even if those conditions
address subjects similar to those already
in the asylum statute. See, e.g., INA
241(a)(5), 8 U.S.C. 1231(a)(5) (barring
from asylum those whose orders of
removal have been reinstated regardless
whether they have asylum claims
stemming from events that occurred
after the original order of removal); see
R–S–C v. Sessions, 869 F.3d 1176, 1184
(10th Cir. 2017) (reconciling the
reinstatement provision’s bar on asylum
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with section 208’s allowing noncitizens
to apply for asylum regardless of
manner of entry).
Regardless, this rule is consistent with
section 208 of the INA, 8 U.S.C. 1158,
as a limitation on asylum eligibility.180
The President has determined that,
under certain emergency border
circumstances, entries must be
suspended and limited because in such
circumstances the border security and
immigration systems lack capacity to
deliver timely decisions and timely
consequences, which threatens to
incentivize further migration. And in
light of such circumstances and their
pernicious effects, the Departments have
determined that special procedures
must be used to quickly process the
influx of noncitizens, including those
seeking asylum. Those determinations
do not conflict with the text or structure
of section 208 of the INA, 8 U.S.C. 1158,
and are consistent with (and an
appropriate exercise of the Departments’
authority under) that provision. Nothing
more is required for the rule to
constitute a valid exercise of authority
under section 208(b)(2)(C) of the INA, 8
U.S.C. 1158(b)(2)(C).
Moreover, this rule’s propriety is
reinforced by the statutory bars on
asylum Congress has enacted. Just as
Congress has chosen to promote
systemic efficiency by prohibiting
asylum applications filed more than one
year after entry and by generally
prohibiting noncitizens from pursuing
successive asylum applications, INA
208(a)(2)(B)–(C), 8 U.S.C. 1158(a)(2)(B)–
(C), this rule furthers systemic efficiency
by limiting asylum in certain situations
where the strains on the immigration
system are at their peak. Congress did
180 The Departments’ interpretation of the phrase
‘‘consistent with’’ is supported by judicial
interpretation of the term in other contexts. The
D.C. Circuit, for example, has cautioned against
construing ‘‘consistent with’’ too narrowly in a
Clean Air Act case. Envtl. Def. Fund, Inc. v. EPA,
82 F.3d 451, 457 (D.C. Cir. 1996) (per curiam),
amended by 92 F.3d 1209 (D.C. Cir. 1996). The
court emphasized that this ‘‘flexible statutory
language’’ does not require ‘‘exact correspondence
. . . but only congruity or compatibility’’ and
underscored that the phrase’s ambiguity warranted
deference to the agency’s policy. Id. Other courts
have adopted the same understanding of
‘‘consistent with.’’ See, e.g., Jimenez-Rodriguez v.
Garland, 996 F.3d 190, 198 (4th Cir. 2021) (‘‘The
phrase ‘consistent with’ does not require ‘exact
correspondence . . . but only congruity or
compatibility.’ ’’ (quoting Nuclear Energy Inst., Inc.
v. EPA, 373 F.3d 1251, 1269 (D.C. Cir. 2004))); Nat’l
Wildlife Fed’n v. Sec’y of U.S. Dep’t of Transp., 960
F.3d 872, 878 (6th Cir. 2020) (‘‘[T]he phrase
‘consistent with’ cannot bear the weight that the
Federation places on it. Response plans are
‘consistent’ with the contingency plans if they
‘show no noteworthy opposing, conflicting,
inharmonious, or contradictory qualities’—in other
words, if the documents put together are ‘not selfcontradictory. Consistency does not mean exact,
point-by-point correspondence.’’ (cleaned up)).
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not foreclose the Departments from
likewise taking systemic considerations
into account when exercising their
discretion to add conditions or
limitations on eligibility. Indeed, the
ultimate consideration when
determining whether someone warrants
a grant of relief as a matter of discretion
is whether granting relief ‘‘appears in
the best interests of th[e] country,’’
Matter of Marin, 16 I&N Dec. 581, 584
(BIA 1978), a point Congress was aware
of when it amended the INA in 1996,
see id. (best interests standard preceded
1996 amendments by nearly two
decades). The Departments find that the
rule’s limitation on asylum eligibility
furthers the efficiency aims of the
asylum statute and is in the best
interests of the United States because it
allows the Departments to deliver
timely decisions and timely
consequences in order to address the
emergency border circumstances
discussed in the Proclamation and this
rule.
Consistent with the best-interest
standard, the BIA has long held a
noncitizen’s ‘‘circumvention of orderly
refugee procedures’’ to be relevant to
whether a favorable exercise of
discretion is warranted. Matter of Pula,
19 I&N Dec. at 473. And the BIA has
specifically considered as relevant
factors the noncitizen’s ‘‘manner of
entry or attempted entry.’’ Id. Although
the rule places greater weight on these
factors under certain emergency
circumstances, this decades-old
precedent establishes that the
Departments can permissibly take into
account manner of entry. And exactly
how much weight to place on those
factors, and whether to do so in
weighing asylum eligibility, falls well
within the broad discretion conferred on
the Departments by section 208(b)(2)(C)
of the INA, 8 U.S.C. 1158(b)(2)(C). Cf.
Lopez v. Davis, 531 U.S. 230, 244
(2001); Reno v. Flores, 507 U.S. 292, 313
(1993); Yang, 79 F.3d at 936–37.
The Departments acknowledge that
Matter of Pula did not consider a
noncitizen’s arrival at a POE to weigh
against a discretionary grant of asylum.
See 19 I&N Dec. at 473. But Matter of
Pula also did not involve circumstances
in which the country’s border faced an
emergency of a magnitude comparable
to the emergency border circumstances
described by the Proclamation and this
rule, where even arrivals at POEs
significantly contribute to the
Departments’ inability to process
migrants and deliver timely decisions
and timely consequences to those
without a lawful basis to remain. Given
the emergency border circumstances
described by the Proclamation and the
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President’s direction in section 3(d) of
the Proclamation to promptly consider
issuing any instructions, orders, or
regulations as may be necessary to
address the situation at the southern
border; and given the strain on
operations and resources that high
volumes of new arrivals create, such
that consequences cannot be
appropriately delivered; the
Departments believe that the rule’s
limitation on asylum eligibility should
apply to noncitizens who enter the
United States across the southern
border, including at a POE during the
emergency border circumstances
described in the Proclamation and this
rule, unless an exception applies.
In Matter of Pula, the BIA explained
that a noncitizen’s ‘‘circumvention of
orderly refugee procedures,’’ including
their ‘‘manner of entry or attempted
entry,’’ is a relevant factor for asylum,
19 I&N Dec. at 473–74, and this rule
merely takes such circumvention into
account. Because the Proclamation
contains an exception for arrivals at a
pre-scheduled time and place under a
process approved by the Secretary, this
rule’s limitation on asylum will also not
apply to such arrivals. One of the
mechanisms by which a noncitizen may
arrive at a POE with a pre-scheduled
time to appear is through the CBP One
app. Use of the CBP One app creates
efficiencies that 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. Indeed, without CBP
One, noncitizens could have longer wait
times for processing at the POE
depending on daily operational
constraints and circumstances. See 88
FR at 31342. During emergency border
circumstances, use of the CBP One app
is especially critical because it allows
DHS to maximize the use of its limited
resources. See, e.g., id. at 31317–18
(explaining the benefits of having
noncitizens pre-schedule appointments
using the CBP One app). The CBP One
app and other lawful pathways that the
United States Government has made
available to those seeking to enter the
United States, including to seek asylum
or protection, are intended to allow for
orderly processing. Therefore, those
who ‘‘circumvent orderly refugee
procedures,’’ consistent with Matter of
Pula, 19 I&N Dec. at 474, during
emergency border circumstances
without meeting one of the recognized
exceptions will be ineligible for
asylum.181
181 As the BIA further explained with respect to
the asylum statute as it existed at the time, ‘‘[a]
careful reading of the language of [section 208(a)(1)]
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iv. This Limitation on Asylum
Eligibility
For the reasons discussed above, the
East Bay cases dealt with different
limitations on asylum and involved
different factual circumstances, and
hence are distinguishable from this
rule.182 Moreover, the Departments
respectfully disagree with some of the
substantive holdings of the Ninth
Circuit and the district court as
described above. The Secretary and the
Attorney General permissibly may
determine that, during emergency
border circumstances, it is in the ‘‘best
interests of th[e] country,’’ Matter of
Marin, 16 I&N Dec. at 584, to limit
asylum eligibility for those who enter in
violation of the Proclamation, which, in
turn, will allow the Departments to
allocate their limited resources to
prioritize processing noncitizens who
do not enter in violation of it. Nothing
in section 208 of the INA, 8 U.S.C. 1158,
forecloses that view, and securing the
best interests of the country is a
reasonable policy goal under section
208 and thus ‘‘consistent with’’ it. INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see
Yang, 79 F.3d at 939 (observing that ‘‘it
is precisely to cope with the unexpected
that Congress deferred to the experience
and expertise of the Attorney General in
fashioning section 208’’); see also id. at
935 (‘‘We must reject the argument that
[the] regulation [establishing a
categorical discretionary bar to asylum
eligibility] exceeds the authority of the
Attorney General if we find that the
regulation has a ‘reasonable foundation
. . . that is, if it rationally pursues a
purpose that it is lawful for the
reveals that the phrase ‘irrespective of such alien’s
status’ modifies only the word ‘alien.’ ’’ Matter of
Pula, 19 I&N Dec. at 473. ‘‘The function of that
phrase is to ensure that the procedure established
by the Attorney General for asylum applications
includes provisions for adjudicating applications
from any alien present in the United States or at
a land or port of entry, ‘irrespective of such alien’s
status.’ ’’ Id. (collecting cases). Congress accordingly
made clear that noncitizens like stowaways, who,
at the time the Refugee Act was passed, could not
avail themselves of our immigration laws, would be
eligible at least to apply for asylum ‘‘irrespective of
[their] status.’’ Id. ‘‘Thus, while section 208(a)
provides that an asylum application be accepted
from an alien ‘irrespective of such alien’s status,’ no
language in that section precludes the consideration
of the alien’s status in granting or denying the
application in the exercise of discretion.’’ Id.
182 The Departments have considered the July 25,
2023 district court decision vacating the
Circumvention of Lawful Pathways rule. See E. Bay
Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025
(N.D. Cal. 2023). That decision applied the holdings
of the other East Bay decisions generally, and the
Departments do not see a need to address it
separately except to note that as of publication the
court’s vacatur remains stayed pending appeal in
the Ninth Circuit, and thus the rule is in effect. See
E. Bay Sanctuary Covenant v. Biden, No. 23–16032,
2023 WL 11662094, at *1 (9th Cir. Aug. 3, 2023).
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[immigration agencies] to seek.’ ’’
(quoting Reno, 507 U.S. at 309)).
Beyond the clear statutory text, settled
principles of administrative law dictate
that the Departments may adopt
generally applicable eligibility
requirements. Those principles establish
that it is permissible for agencies to
establish general rules or guidelines in
lieu of case-by-case assessments, so long
as those rules or guidelines are not
inconsistent with the statute, and that
principle is especially salient here as
asylum is inherently discretionary in
nature. See Lopez, 531 U.S. at 243–44
(rejecting the argument that the Bureau
of Prisons was required to make ‘‘caseby-case assessments’’ of eligibility for
sentence reductions and explaining that
an agency ‘‘is not required continually
to revisit ‘issues that may be established
fairly and efficiently in a single
rulemaking’ ’’ (quoting Heckler v.
Campbell, 461 U.S.458, 467 (1983)));
Reno, 507 U.S. at 313–14 (holding that
a statute requiring ‘‘individualized
determination[s]’’ does not prevent
immigration authorities from using
‘‘reasonable presumptions and generic
rules’’ (quotation marks omitted)); Fook
Hong Mak, 435 F.2d at 730 (upholding
INS’s authority to ‘‘determine[ ] certain
conduct to be so inimical to the
statutory scheme that all persons who
have engaged in it shall be ineligible for
favorable consideration’’ and observing
that there is no legal principle
forbidding an agency that is ‘‘vested
with discretionary power’’ from
determining that it will not use that
power ‘‘in favor of a particular class on
a case-by-case basis’’); see also Singh,
623 F. Supp. at 556 (‘‘attempting to
discourage people from entering the
United States without permission . . .
provides a rational basis for
distinguishing among categories of
illegal aliens’’); Matter of Salim, 18 I&N
Dec. 311, 315–16 (BIA 1982) (before
Pula, explaining that a certain form of
entry can be considered an ‘‘extremely
adverse factor which can only be
overcome with the most unusual
showing of countervailing equities’’); cf.
Peulic v. Garland, 22 F.4th 340, 346–48
(1st Cir. 2022) (rejecting challenge to
Matter of Jean, 23 I&N Dec. 373 (A.G.
2002), which established strong
presumption against a favorable exercise
of discretion for certain categories of
applicants for asylee and refugee
adjustment of status under section
209(c) of the INA, 8 U.S.C. 1159(c)
(citing cases)); Cisneros v. Lynch, 834
F.3d 857, 863–64 (7th Cir. 2016)
(rejecting challenge to 8 CFR 1212.7(d),
which established strong presumption
against a favorable exercise of discretion
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for waivers under section 212(h) of the
INA, 8 U.S.C. 1182(h), for certain classes
of noncitizens, even if a few could meet
the heightened discretionary standard
(citing cases)).
The Departments recognize that in the
Circumvention of Lawful Pathways rule
they declined to adopt on a permanent
basis the Proclamation Bar IFR because
it conflicted with the tailored approach
in that rule and because barring all
noncitizens who enter between POEs
along the SWB was not the proper
approach under the circumstances the
Departments then faced. See 88 FR at
31432. The Departments continue to
believe that the approach taken in the
Proclamation Bar IFR conflicts with the
tailored approach of the Circumvention
of Lawful Pathways rule as well as the
tailored approach in this rule, which
borrows heavily from the
Circumvention of Lawful Pathways rule.
The Proclamation Bar IFR contained no
exceptions and was open-ended,
allowing for implementation of any
future proclamations or orders
regardless of their terms. See 83 FR at
55952. In contrast, like the
Circumvention of Lawful Pathways rule,
this rule is narrowly tailored to address
the emergency border circumstances
described in the Proclamation and the
rule and includes exceptions to account
for circumstances in which waiting for
an end to the suspension and limitation
on entry and the limitation on asylum
eligibility is not possible. And by
relating the rule to a specific
proclamation and the circumstances
described therein, the Departments have
been able to tailor its provisions to the
terms of the Proclamation and the
circumstances under which it is
applied.
Finally, the Departments acknowledge
that, unlike the Circumvention of
Lawful Pathways rule, neither the
Proclamation nor this rule excepts
Mexican nationals. See 8 CFR
208.33(a)(1)(iii), 1208.33(a)(1)(iii)
(providing that the Lawful Pathways
rebuttable presumption of asylum
ineligibility applies only to those who
enter the United States along the SWB
after transiting through a third country).
Traveling through a third country is a
key part of the Circumvention of Lawful
Pathways rule because one lawful
pathway for obtaining protection is
applying for protection in a third
country. See 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). The Departments
recognize that some Mexican nationals
seek asylum and protection in the
United States. Indeed, since 2021, DHS
has seen a sharp increase in total SWB
encounters of Mexican nationals, from a
pre-pandemic (FY 2014 through FY
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2019) average of approximately 239,000
to more than 717,000 in FY 2023.183 Of
note, this increase in encounters has
been accompanied by a sharp increase
in referrals for credible fear interviews
of Mexican nationals in expedited
removal. The percentage of Mexican
nationals processed for expedited
removal who claimed a fear of return
averaged 6 percent in the pre-pandemic
period (FY 2014 through FY 2019), and
never exceeded 7 percent for any fiscal
year.184 But 29 percent of all Mexican
nationals processed for expedited
removal at the SWB from May 12, 2023,
to March 31, 2024, made fear claims,
including 39 percent in February
2024.185 Because of this sharp increase
from the historical average, the
Departments believe that applying this
rule to Mexican nationals will result in
faster processing of a significant number
of Mexican noncitizens and thereby
significantly advance this rule’s
overarching goal of alleviating the strain
on the border security and immigration
systems while entry is suspended and
limited under the Proclamation. At the
same time, the Departments continue to
believe that, if encounters decrease to
levels under which the systems do not
experience the substantial strains they
currently experience while the
Circumvention of Lawful Pathways rule
remains in effect, the application of that
rule only to those noncitizens who
travel through a third country en route
to the United States appropriately
accounts for the goals of encouraging
migrants to seek protection in other
countries or to use safe, orderly, and
lawful pathways to enter the United
States, ensuring the border security and
immigration systems can efficiently
process noncitizens, and affording
asylum and other protection to those
seeking it who establish their eligibility.
Under this rule, Mexican nationals
will still be eligible for asylum in some
circumstances—they may present at a
POE pursuant to a pre-scheduled
appointment, or, if they are unable to
wait in Mexico while scheduling an
appointment, they may be able to
establish an exception to the
Proclamation or exceptionally
compelling circumstances under the
rule. Even if they are not able to do so,
the rule does not preclude eligibility for
183 March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by Agency and
Selected Citizenship’’).
184 OHSS Enforcement Lifecycle December 31,
2023.
185 OHSS analysis of UIP ER Daily Report Data
Dashboard as of April 2, 2024.
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statutory withholding of removal and
CAT protection, and they will be able to
seek such protection. In the absence of
an exception, however, Mexican
nationals should be ineligible for
asylum under the rule because, during
the emergency border circumstances
described in the Proclamation and this
rule, it is important to deter irregular
entry by all noncitizens regardless of
country of origin. And the above data
make clear that additional incentives are
necessary to encourage Mexican
nationals to pursue the available lawful,
safe, and orderly pathways, rather than
entering the country unlawfully.
v. Application During Credible Fear
Screenings and Reviews
The limitation on asylum eligibility
adopted here applies during merits
adjudications, see 8 CFR 208.13(g),
1208.13(g), but will most frequently be
relevant for noncitizens who are subject
to expedited removal under section
235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).
Noncitizens in expedited removal are
subject to removal ‘‘without further
hearing or review’’ unless they indicate
an intention to apply for asylum or fear
of persecution. INA 235(b)(1)(A)(i), 8
U.S.C. 1225(b)(1)(A)(i). Noncitizens in
expedited removal who indicate an
intention to apply for asylum or fear of
persecution are referred to an AO for an
interview to determine if they have a
credible fear of persecution and should
accordingly remain in proceedings for
further consideration of the application.
INA 235(b)(1)(A)(ii), (b)(1)(B)(i), (ii), 8
U.S.C. 1225(b)(1)(A)(ii), (b)(1)(B)(i), (ii).
In addition, AOs consider whether a
noncitizen in expedited removal may be
eligible for statutory withholding of
removal or for CAT protection. See 8
CFR 208.30(e)(2), (3).
This rule instructs AOs and IJs to
apply the limitation it adopts during
credible fear screenings and reviews. 8
CFR 208.35(b), 1208.35(b). Under the
rule, when screening for asylum
eligibility, the AO and IJ must
determine whether there is a significant
possibility that the noncitizen would be
able to establish by a preponderance of
the evidence that they were not subject
to the rule’s limitation on asylum
eligibility or that they will be able to
establish by a preponderance of the
evidence exceptionally compelling
circumstances. For the reasons noted in
the Circumvention of Lawful Pathways
rule, the Departments expect that
noncitizens rarely would be found
excepted from the limitation on asylum
for credible fear purposes and
subsequently be found not to be
excepted at the merits stage. See 88 FR
at 31380–81.
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The Departments recognize that in the
recent past they changed course
regarding whether to apply bars and
conditions and limitations on asylum
eligibility during credible fear
screenings by rescinding provisions that
would have applied the mandatory
asylum bars during credible fear
screenings. See 87 FR at 18135. In the
Circumvention of Lawful Pathways
NPRM, the Departments explained their
reasoning for nevertheless applying that
condition on asylum eligibility during
credible fear screenings, stating that the
rebuttable presumption would be less
difficult to apply than other bars,
limitations, or conditions because the
facts regarding the presumption’s
applicability, exceptions, and rebuttal
circumstances would generally be
straightforward to apply. 88 FR at
11744–45. Indeed, the Departments
have applied the presumption
effectively in credible fear screenings for
the time in which the Circumvention of
Lawful Pathways rule has been in
effect.186
The limitation adopted here is in
many ways parallel to the Lawful
Pathways rebuttable presumption—
specifically, it borrows from the
Circumvention of Lawful Pathways
rule’s rebuttal circumstances—although
it is more straightforward because it
does not include the Lawful Pathways
rebuttable presumption’s exceptions for
those who applied and were denied
asylum or other protection in a third
country and those who were unable to
schedule an appointment through the
CBP One app for certain reasons. See 8
CFR 208.33(a)(2)(ii)(B)–(C),
1208.33(a)(2)(ii)(B)–(C). Given the
Departments’ experience with
implementing the Circumvention of
Lawful Pathways rule, the Departments
are confident that the limitation and
186 In the post-May 12, 2023, period, the median
time to refer noncitizens encountered by CBP at the
SWB who claim a fear for credible fear interviews
has decreased by 77 percent from its historical
average, from 13 days in the FY 2014 to FY 2019
pre-pandemic period to 3 days in the four weeks
ending March 31, 2024; for those who receive
negative fear determinations or administrative
closures that are not referred to EOIR, the median
time from encounter to removal, in the same time
frames, decreased 85 percent from 73 days to 11
days. Pre-pandemic medians based on OHSS
analysis of OHSS Enforcement Lifecycle December
31, 2023; post-May 12 estimates based on OHSS
analysis of operational CBP, ICE, USCIS, and DOJ/
EOIR data downloaded from UIP on April 2, 2024.
The Departments note that DHS recently published
a notice of proposed rulemaking proposing that
certain mandatory bars be considered at the
screening stage under a reasonable possibility
standard. Application of Certain Mandatory Bars in
Fear Screenings, 89 FR 41347 (May 13, 2024). If
DHS were to finalize that rule as drafted, this rule’s
‘‘reasonable probability’’ standard would still apply
when the noncitizen is subject to this rule’s
limitation on asylum eligibility.
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exceptions established here will be just
as straightforward to apply as the
similar provisions are for the
Circumvention of Lawful Pathways rule.
b. Manifestation of Fear
This rule also alters certain aspects of
the expedited removal process for
individuals who enter across the
southern border during emergency
border circumstances and are not
described in section 3(b) of the
Proclamation. When an immigration
officer inspects a noncitizen at a POE or
between POEs and determines that the
noncitizen is inadmissible and will be
subject to expedited removal, current
regulations require the immigration
officer to take certain steps before
ordering the noncitizen removed from
the United States. See 8 CFR 235.3(b).
This process takes approximately two
hours per individual in USBP custody.
In particular, the immigration officer
conducts an inspection, including
taking biometrics; running background
checks; collecting biographic
information, citizenship, and place and
manner of entry; and advising the
noncitizen of the charges against them.
8 CFR 235.3(b)(2)(i). The noncitizen has
an opportunity to provide a response.
Id. The officer must also read (or have
read through an interpreter, if
appropriate) the information contained
in the Form I–867A, Record of Sworn
Statement in Proceedings under Section
235(b)(1) of the Act, which advises the
noncitizen of their ability to seek
protection in the United States. Id. The
examining immigration officer must also
read the noncitizen the questions on the
Form I–867B, Jurat for Record of Sworn
Statement in Proceedings under Section
235(b)(1) of the Act, which asks, among
other things, whether the noncitizen has
any fear of return or would be harmed
if returned. Id. After the noncitizen has
provided answers to the questions on
Form I–867B, the immigration officer
records the answers, and the noncitizen
then reads the statement (or has the
statement read to them) and signs the
statement. Id. On average, USBP agents
spend about 20 to 30 minutes of the
inspection period completing both the
Form I–867A and the Form I–867B.
Finally, a noncitizen who indicates a
fear of return or an intention to seek
asylum is served with and
acknowledges receipt of a Form M–444,
which includes more detailed
information about the credible fear
process. 8 CFR 235.3(b)(4)(i).
Instead of this current process, DHS is
adding a new provision at 8 CFR
235.15(b)(4) to modify the process for
determining whether a noncitizen who
enters across the southern border and is
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not described in section 3(b) of the
Proclamation during the emergency
circumstances giving rise to the
Proclamation’s suspension and
limitation on entry should be referred to
an AO for a credible fear interview.
These procedures apply during
emergency border circumstances. See 8
CFR 235.15(a). Under the new rule,
immigration officers will conduct an
immigration inspection and, where the
noncitizen will be subject to expedited
removal, will advise the noncitizen of
the removal charges against them and
provide an opportunity to respond,
consistent with existing practice and
regulations outlined above. 8 CFR
235.3(b)(2)(i). However, the immigration
officer will not complete either the
Form I–867A or Form I–867B or a sworn
statement. Moreover, the officer will not
be required to provide individualized
advisals on asylum or ask the noncitizen
questions related to whether they have
a fear. See 8 CFR 235.15(b)(4). Under the
rule, the immigration officer will
instead refer the noncitizen to an AO for
a credible fear interview only if the
noncitizen manifests a fear of return,
expresses an intention to apply for
asylum, expresses a fear of persecution
or torture, or expresses a fear of return
to the noncitizen’s country or country of
removal. See id. This manifestation can
occur at any time in the process and can
be expressed verbally, non-verbally, or
physically.187 In such situations, the
immigration officer will not proceed
further with the removal and will
comply with the existing regulations,
policies, and procedures, including as
outlined in 8 CFR 235.3(b)(4), regarding
processing and referring noncitizens for
credible fear interviews. At the time that
a noncitizen is referred for a credible
fear interview, they will receive
additional information about the
credible fear process that has the same
substantive information as in the
current process, but without the
requirement that such information be
provided on a particular form.
DHS is making these changes to
address the emergency circumstances at
the southern border discussed in the
187 By these terms, DHS intends to include a wide
range of human communication and behavior, such
that ‘‘non-verbally’’ could include things like noises
or sounds without any words, while physical
manifestations could include behaviors, with or
without sound, such as shaking, crying, or signs of
abuse. See U.S. State Dep’t, Bureau of Population,
Refugees, and Migration, Fact Sheet: U.S.
Commemorations Pledges, Fact Sheet, Bureau of
Population, Refugees, and Migration (June 24,
2013), https://2009-2017.state.gov/j/prm/releases/
factsheets/2013/211074.htm. A noncitizen could
thus manifest a fear of returning to a previous
location without using actual words to state that
they are specifically afraid of return to their home
country or country of removal.
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Proclamation and the rule in a manner
consistent with its legal obligations.
DHS has broad authority to change the
procedures that immigration officers
apply to determine whether a
noncitizen subject to expedited removal
will be referred for a credible fear
interview by an AO so long as those
procedures are consistent with the INA.
See INA 103(a)(1), (3), 8 U.S.C.
1103(a)(1), (3) (granting the Secretary
the authority to establish regulations
and take other actions ‘‘necessary for
carrying out’’ the Secretary’s authority
under the immigration laws); see also 6
U.S.C. 202; Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 42 (1983) (emphasizing
that agencies ‘‘must be given ample
latitude to adapt their rules and policies
to the demands of changing
circumstances’’ (quotation marks
omitted)).
DHS believes that the above-described
changes are fully consistent with the
statutory procedures governing
expedited removal under section
235(b)(1)(A) of the INA, 8 U.S.C.
1225(b)(1)(A). Section 235(b)(1)(A) of
the INA, 8 U.S.C. 1225(b)(1)(A), does
not specify the relevant aspects of the
procedures that immigration officers
must follow to determine whether a
noncitizen who is subject to expedited
removal can be ordered removed or
whether the noncitizen must be referred
to an AO for a credible fear interview.
Instead, the statute provides that the
immigration officer may order removed
any noncitizen who, subject to certain
exceptions, is arriving in the United
States, or who is within a class of
noncitizens subject to expedited
removal as designated by the Secretary,
and who is inadmissible under sections
212(a)(6)(C) or 212(a)(7) of the INA, 8
U.S.C. 1182(a)(6)(C) or 1182(a)(7). The
statute further provides that only those
noncitizens who ‘‘indicate[] either an
intention to apply for asylum . . . or a
fear of persecution,’’ INA 235(b)(1)(A)(i),
8 U.S.C. 1225(b)(1)(A)(i), must be
referred to an AO for a credible fear
interview, INA 235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii). But the statute does
not require immigration officers to
affirmatively ask every noncitizen
subject to expedited removal if they
have a fear of persecution or torture.
Moreover, Congress has not provided a
particular definition of the phrase
‘‘indicates . . . an intention.’’ The
statute’s text thus gives DHS discretion
to employ the procedures it reasonably
concludes are appropriate to implement
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section 235(b)(1)(A)(ii) of the INA, 8
U.S.C. 1225(b)(1)(A)(ii).188
Interpreting the statute in this manner
is also consistent with the United States’
international law obligations. As
described in Section II.B of this
preamble, 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 ‘‘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.’’ Refugee Convention, supra,
19 U.S.T. at 6276, 189 U.N.T.S. at
176.189 Neither the Refugee Convention
nor the Protocol prescribes minimum
screening procedures that must be
implemented.190 Rather, each state party
has the authority ‘‘to establish the
procedure that it considers most
appropriate, having regard to its
particular constitutional and
administrative structure,’’ as long as
such procedures are consistent with the
purposes of the Convention.191 The
United States has also ratified the CAT,
which includes a non-refoulement
provision at Article 3 that prohibits the
return of a person from the United
States to a country where there are
‘‘substantial grounds for believing’’ the
person would be tortured. See Pierre v.
Gonzales, 502 F.3d 109, 114 (2d Cir.
2007); see id. at 115 (‘‘ ‘[T]he United
States understands the phrase, ‘where
there are substantial grounds for
believing that he would be in danger of
being subjected to torture,’ as used in
188 See Vermont Yankee Nuclear Power Corp. v.
Nat. Res. Def. Council, Inc., 435 U.S. 519, 543
(1978) (‘‘Absent constitutional constraints or
extremely compelling circumstances the
administrative agencies should be free to fashion
their own rules of procedure and to pursue methods
of inquiry capable of permitting them to discharge
their multitudinous duties.’’ (quotation marks
omitted)); United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950) (‘‘[T]he
decision to admit or to exclude an alien may be
lawfully placed with the President, who may in
turn delegate the carrying out of this function to a
responsible executive officer of the sovereign, such
as the Attorney General.’’); Las Americas Immigrant
Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 18 (D.D.C.
2020).
189 See INS v. Stevic, 467 U.S. 407, 428 & n.22
(1984); Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d
Cir. 2005) (‘‘The 1967 Protocol is not self-executing,
nor does it confer any rights beyond those granted
by implementing domestic legislation.’’).
190 UNHCR, Handbook on Procedures and
Criteria for Determining Refugee Status ¶ 189 (Jan.
1992 ed., reissued Feb. 2019), https://
www.unhcr.org/media/handbook-procedures-andcriteria-determining-refugee-status-under-1951convention-and-1967.
191 Id.
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Article 3 of the Convention, to mean ‘if
it is more likely than not that he would
be tortured.’’ ’’ (quoting the Senate
resolution of ratification)). The CAT
similarly does not prescribe screening
requirements. As such, the United
States has broad discretion in what
procedures are appropriate to
implement, through domestic law, to
satisfy its non-refoulement
obligations.192
The United States implements its
obligations under the Refugee Protocol
and the CAT through the INA and
related rulemaking, and it provides
specified procedures—including in the
expedited removal process, as described
above—for seeking asylum or other
protection in the United States. The
process outlined in this rule temporarily
affords immigration officers the ability
to refer noncitizens to an AO for a
credible fear interview if the noncitizen
manifests a fear of return, expresses an
intention to apply for asylum, expresses
a fear of persecution or torture, or
expresses a fear of return to the
noncitizen’s country or country of
removal. The Departments have
concluded that the manifestation
standard is consistent with their
obligations (1) not to return noncitizens
to countries where they would be
persecuted; and (2) not to return
noncitizens to countries where it is
more likely than not that they would be
tortured.193
In addition to changing to a
‘‘manifestation’’ standard, CBP is
implementing operational changes to
generally inform noncitizens subject to
expedited removal that, if they have a
fear of return, they should inform an
immigration officer, and they will be
referred to an AO for consideration of
their fear claim. DHS believes that these
operational changes and notice
provisions, as implemented, are
consistent with the notice provision in
section 235(b)(1)(B)(iv) of the INA, 8
U.S.C. 1225(b)(1)(B)(iv).194 Moreover,
CBP will provide immigration officers
with information on how to apply the
manifestation standard, including that
manifestation may occur verbally, nonverbally, or physically.
Upon implementation of this rule,
signs will be posted in areas of CBP
facilities where individuals are most
likely to see those signs. The signs will
provide clear direction to individuals
that, in addition to being able to inform
the inspecting immigration officers of
urgent medical or other concerns, they
should inform the inspecting
immigration officer if they have a fear of
return, and that, if they do, they will be
referred for a screening. These signs will
be in the languages spoken by the most
common nationalities encountered by
CBP and thus will likely be understood
by those described in the Proclamation
and likely subject to the provisions of
this rule.195
Moreover, in CBP’s large capacity
facilities—where the vast majority of
individuals subject to expedited
removal undergo processing—a short
video explaining the importance of
raising urgent medical concerns, a need
for food or water, or fear of return will
be shown on a loop in the processing
areas and will also be available in those
languages most commonly spoken by
those noncitizens encountered by CBP
who may be described in the
192 Although neither the Refugee Convention nor
the Refugee Protocol nor the CAT includes specific
screening requirements, the United States is bound
not to return noncitizens from the United States to
countries where they would be tortured, or, with
limited exceptions, to countries where they would
be persecuted on account of a protected ground. As
discussed in detail above in Section III.A.1 of this
preamble, the United States implements its nonrefoulement obligations under Article 33 of the
Refugee Convention (via the Refugee Protocol)
through the statutory withholding of removal
provision in section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), not through the asylum provisions at
section 208 of the INA, 8 U.S.C. 1158. And the
United States implements its obligations under the
CAT through regulations. See FARRA, Pub. L. 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.
193 136 Cong. Rec. 36198 (1990) (recording the
Senate’s advice and consent to the ratification of the
CAT, subject to certain reservations,
understandings, and declarations, including that
the phrase in Article 3 of the CAT, ‘‘ ‘where there
are substantial grounds for believing that he would
be in danger of being subjected to torture,’ ’’ is
understood to mean ‘‘ ‘if it is more likely than not
that he would be tortured’ ’’); see also Pierre, 502
F.3d at 115.
194 DHS acknowledges that an argument could be
made that the requirement in section
235(b)(1)(B)(iv) of the INA, 8 U.S.C.
1225(b)(1)(B)(iv), which states that DHS ‘‘shall
provide information concerning the asylum
interview . . . to aliens who may be eligible,’’ is not
limited only to noncitizens who are eligible for a
credible fear interview, but instead applies to
noncitizens who are suspected of qualifying for
expedited removal and ‘‘may’’ be eligible for an
interview. In all events, DHS is providing
information to noncitizens who are being processed
for expedited removal about their right to seek
asylum and protection in the United States. As
explained below, DHS is posting signs on display
for all noncitizens in CBP custody and including
information in a video that will be on display for
the vast majority of noncitizens in CBP custody,
informing them that if they have a fear of return,
they should inform an immigration officer and, if
they do, an AO will conduct an interview and ask
the noncitizens questions about any fear they may
have. Noncitizens who indicate a fear of return will
be given a more detailed written explanation of the
credible fear interview process prior to being
referred for the interview. That explanation will be
translated into certain common languages or will be
read to the noncitizen if required.
195 Currently, these languages are English,
Spanish, Mandarin, and Hindi.
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Proclamation and likely subject to the
provisions of this rule.196
The video will also explain to
noncitizens that, if they inform an
immigration officer that they have a
fear, an AO will conduct an interview
to ask questions about their fear.
Consistent with CBP’s Language Access
Plan, CBP provides language assistance
services for those who may not speak
one of those languages.197 CBP
immigration officers have extensive
experience and training in identifying
whether an individual requires a
translator or interpreter or is unable to
understand a particular language. In
addition, CBP facilities have ‘‘I Speak’’
signs, which are signs that assist literate
individuals to identify a preferred
language from one of over 60 possible
languages.198 Furthermore, individuals
who are unable to read the signs or
communicate effectively in one of the
languages in which the sign and video
will be presented will be read the
contents of the sign and video in a
language they understand.199
196 These large capacity facilities currently hold
the vast majority of individuals in CBP custody.
Although the videos will not be shown at smaller
facilities, including small POEs and Border Patrol
stations, these facilities house very few noncitizens
who are subject to the asylum limitation. These
small facilities will still post the relevant signs in
the processing areas. And at these small facilities,
resources are such that immigration officers will be
able to devote a great deal of attention to observing
individuals, including for any manifestations of fear
or any indication that an individual requires
assistance from a translator or reading assistance to
understand the information provided at the facility,
including the information provided on the signs.
Immigration officers at these facilities are trained to
provide such assistance as needed and will
continue to do so under this rule.
197 See CBP, Language Access Plan (Nov. 18,
2016), https://www.dhs.gov/sites/default/files/
publications/final-cbp-language-access-plan.pdf;
CBP, Supplementary Language Access Plan (Oct.
30, 2023), https://www.dhs.gov/sites/default/files/
publications/cbp-updated-language-access-plan2020.pdf.
198 See CBP, Language Access Plan 7 (Nov. 18,
2016), https://www.dhs.gov/sites/default/files/
publications/final-cbp-language-access-plan.pdf;
see also DHS, DHS Language Access Resources,
https://www.dhs.gov/publication/dhs-languageaccess-materials (last updated July 17, 2023); DHS,
I Speak . . . Language Identification Guide, https://
www.dhs.gov/sites/default/files/publications/crcl-ispeak-poster-2021.pdf (last updated Mar. 10, 2021).
199 These videos and signs will be presented in
a manner that is consistent with how CBP provides
other important notifications to individuals in its
facilities. CBP utilizes posters for other critical
information, such as ensuring that individuals are
on the lookout for those who may commit suicide,
advising all children in custody of the amenities
available to them (e.g., food, water, medical care,
blankets, and hygiene products), communicating its
zero tolerance regarding sexual assault, and
conveying critical information about oversight
entities such as the Office of the Inspector General.
CBP also has a video targeted towards UCs
explaining the process that they will go through.
These signs and videos are similarly posted in the
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DHS’s experience, based on the nature
of CBP facilities and the utility of the
existing signs, is that short, concise, and
simple notifications are effective. This is
because CBP holds individuals only for
as long as it takes to complete
inspection and processing, including
conducting any basic medical
screenings and making arrangements for
transfer out of CBP custody. Particularly
for those who are apprehended by USBP
between POEs, noncitizens will go
through a number of steps during their
time in a CBP facility, including
completion of processing paperwork,
fingerprinting, and being interviewed by
an inspecting immigration officer. In
many USBP facilities, these steps occur
at the same time as the facility provides
showers and hygiene products, medical
evaluations, and food and water. Given
that noncitizens may move through
other areas of the facility and do not
remain in custody for a long period of
time, DHS regularly places important
signs in both the processing areas and
the detention areas of its facilities,
which are the locations where
noncitizens spend time while being
inspected or while in CBP custody; DHS
is confident that noncitizens see these
existing signs and that the new signs
added as part of this rule are also likely
to be seen. DHS has determined that
more complicated videos and signs are
less effective for conveying important
information.
DHS acknowledges that these
procedures represent a departure from
the justification that the former
Immigration and Naturalization Service
(‘‘INS’’) provided, in 1997, when it
adopted the current procedures in 8
CFR 235.3(b)(2)(i). At the time, INS
explained that adopting these
procedures would ‘‘ensure that bona
fide asylum claimants are given every
opportunity to assert their claim[s],’’
and that it was including the
requirement that immigration officers
must provide advisals about the credible
fear process and ask questions about
fear as ‘‘safeguards’’ to ‘‘protect
potential asylum claimants.’’ See 62 FR
at 10318–19. INS further explained that
these procedures would ‘‘not
unnecessarily burden[] the inspections
process or encourag[e] spurious asylum
claims.’’ Id. at 10318. While such
procedures have remained in place
since 1997, this fact alone is not an
indication that they are required by the
statute, and DHS maintains discretion to
update the procedures in a manner
consistent with the statute. See FCC v.
Fox Television Stations, Inc., 556 U.S.
areas of CBP facilities where DHS is confident they
are likely to be seen by noncitizens being processed.
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502, 515 (2009) (holding that an agency
changing an established rule need not
justify the change with a more detailed
justification than that supporting the
original so long as it can show ‘‘good
reasons’’ for the new policy). Given the
extraordinary circumstances currently
facing the Departments, DHS has
determined it is reasonable to change
the procedures here.
When the existing regulations were
adopted in 1997, the situation at the
border was different. In 1998 (the first
full year that statistics concerning the
expedited removal process were
available), approximately 80,000
noncitizens were processed for
expedited removal.200 In that same year,
AOs conducted fewer than 3,000
credible fear interviews 201 and IJ
reviews numbered around 100.202
Additionally, at that time, expedited
removal was applied only to ‘‘arriving
aliens,’’ noncitizens processed at a POE,
not noncitizens encountered between
POEs.203 Expedited removal was not
extended to certain noncitizens
encountered after entering between
POEs until 2004. See Designating Aliens
for Expedited Removal, 69 FR 48877
(Aug. 11, 2004) (extending expedited
removal to noncitizens encountered
within 100 air miles of the border and
within 14 days of entry). At that time,
USBP apprehended approximately 1.1
million noncitizens between POEs
annually.204 The numbers have changed
significantly since that time. In FY 2023,
USBP apprehended more than 2 million
noncitizens between POEs along the
SWB.205 In February 2024, USBP
processed more than 33,000 individuals
for expedited removal,206 and USBP
200 See INS, 1998 Statistical Yearbook of the
Immigration and Naturalization Service 203 (Nov.
1998), https://www.dhs.gov/sites/default/files/
publications/Yearbook_Immigration_Statistics_
1998.pdf.
201 See id. at 91.
202 EOIR, Statistical Yearbook 2000, at D1 (Jan.
2001), https://www.justice.gov/sites/default/files/
eoir/legacy/2001/05/09/SYB2000Final.pdf
(reporting that EOIR received 90 credible fear
reviews in FY 1998).
203 See 62 FR at 10318–19; compare INA
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i) (applying
expedited removal to noncitizens arriving at ports
of entry), with INA 235(b)(1)(A)(iii), 8 U.S.C.
1225(b)(1)(A)(iii) (permitting the application to
designated noncitizens).
204 CBP, United States Border Patrol Nationwide
Encounters Fiscal Year 1925–2020, https://
www.cbp.gov/sites/default/files/assets/documents/
2021-Aug/U.S.%20Border%20Patrol%20
Total%20Apprehensions%20%28FY%201925%20%20FY%202020%29%20%28508%29.pdf (last
accessed May 27, 2024).
205 CBP, Southwest Land Border Encounters,
https://www.cbp.gov/newsroom/stats/southwestland-border-encounters (last modified May 15,
2024).
206 OHSS analysis of data downloaded from UIP
on April 2, 2024.
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processed more than 28,000 in March
2024.207 Since May 2023, USCIS has
completed about 3,300 credible fear
interviews per week of individuals
encountered at and between SWB
POEs,208 and in FY 2023, IJs reviewed
over 34,000 credible fear decisions.209
These high levels of encounters and
credible fear referrals impose a
significant burden on the expedited
removal process and have strained DHS
and EOIR resources, substantially
impairing the Departments’ ability to
deliver timely decisions and timely
consequences. At a processing time of
approximately 2 hours per person,
USBP agents spent approximately
56,000 hours—the equivalent of
approximately 2,333 calendar days—
processing the approximately 28,000
expedited removal cases in March 2024
under the current process. High
numbers, such as those giving rise to the
Proclamation and this rule, increase the
likelihood that USBP facilities will
become quickly overcrowded.210 This
type of crowding in USBP facilities
creates health and safety concerns for
noncitizens and Government
personnel.211
Additionally, compared to 1997,
today’s high levels of migration impose
a severe strain on the credible fear
process. AOs and IJs must devote
substantial resources to credible fear
interviews and reviews.212 Despite the
strengthened consequences in place at
the SWB through the Circumvention of
Lawful Pathways rule and the
complementary measures that have led
to record returns and removals,
encounter levels and credible fear
referrals are exceeding the capacity of
207 OHSS analysis of data downloaded from UIP
on April 2, 2024.
208 OHSS analysis of data downloaded from UIP
on April 2, 2024.
209 See EOIR, Adjudication Statistics: Credible
Fear and Reasonable Fear Review Decisions (Oct.
12, 2023), https://www.justice.gov/d9/pages/
attachments/2018/10/26/7_credible_fear_review_
and_reasonable_fear_review_decisions.pdf.
210 See Decl. of Matthew J. Hudak ¶¶ 11, 17,
Florida v. Mayorkas, Case No. 3:22 cv 9962 (N.D.
Fla. May 12, 2023) (Dkt. 13–1).
211 Id.
212 USCIS closed or adjudicated an estimated
135,000 credible fear interviews resulting from
SWB encounters in FY 2023, up from an average of
52,000 from 2010 to 2019 and an average of 5,400
from 2005 to 2009. OHSS analysis of March 2024
OHSS Persist Dataset and Enforcement Lifecycle
December 31, 2023. See OHSS, Immigration
Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/
enforcement-and-legal-processes-monthly-tables
(last updated May 10, 2024) (reflecting ever
increasing numbers of credible fear interview
screenings at the ‘‘SW Border Credible Fear
Screenings Referred to USCIS by citizenship’’ tab);
see also 88 FR at 31314, 31326, 31381.
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the expedited removal process.213
Therefore, DHS has determined that a
different approach is needed here. The
manifestation standard in the new rule
is designed to reasonably help meet
these challenges during emergency
border circumstances. It is intended to
help immigration officers process
noncitizens more expeditiously, while
still affording opportunities for those
seeking protection to do so.
DHS acknowledges that, by
implementing a manifestation standard
in the circumstances outlined in this
rule, it is temporarily eliminating the
requirement to provide individualized
advisals and ask affirmative questions
via Forms I–867A and B. DHS has
determined that, in light of the
circumstances giving rise to the
Proclamation and this rule, it is critical
to have a system in place that more
effectively and efficiently identifies
those who may have a fear of return or
indicate an intention to seek asylum.
DHS is making the decision to use the
manifestation standard consistent with
the statute, as described above, and for
the reasons outlined below. At bottom,
based on DHS’s long experience
inspecting and interviewing
individuals, DHS has determined that a
manifestation approach is the most
appropriate way to address emergency
border circumstances while still
sufficiently affording the ability to seek
protection. Specifically, DHS makes this
determination based on its significant
experience relating to the inspection of
individuals seeking entry and admission
into the United States. DHS immigration
officers have expertise observing and
inspecting individuals, as they
consistently encounter and inspect large
numbers of people every day. In FY
2019, prior to COVID–19, for example,
the approximately 28,000 officers of
CBP’s Office of Field Operations 214
processed more than 1.1 million people
at POEs every day.215 USBP’s 20,000
agents 216 encountered more than 2
213 See Decl. of Blas Nuñez-Neto ¶¶ 9–10, E. Bay
Sanctuary Covenant v. Biden, No. 18 cv 6810 (N.D.
Cal. June 16, 2023) (Dkt. 176–2); Decl. of Matthew
J. Hudak ¶¶ 10–12, Florida v. Mayorkas, No.
3:22 cv 9962 (N.D. Fla. May 12, 2023) (Dkt. 13–1);
Decl. of Enrique M. Lucero ¶ 7, Innovation Law Lab
v. Wolf, No. 19–15716 (9th Cir. Mar. 3, 2020) (Dkt.
95–3).
214 See CBP, About CBP: Leadership &
Organization, Executive Assistant Commissioners’
Offices, https://www.cbp.gov/about/leadershiporganization/executive-assistant-commissionersoffices (last updated Jan. 30, 2024).
215 See CBP, On a Typical Day in 2019, CBP
. . . , https://www.cbp.gov/newsroom/stats/typicalday-fy2019 (last modified May 11, 2022).
216 See CBP, About CBP: Leadership &
Organization, Executive Assistant Commissioners’
Offices, https://www.cbp.gov/about/leadershiporganization/executive-assistant-commissionersoffices (last updated Apr. 19, 2024).
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million people on the SWB in FY
2023.217
In addition, DHS, including through
its predecessor agencies, has been
implementing the expedited removal
provisions since 1997. It therefore has
nearly 30 years of experience
completing the Form I–867A advisals
and asking the questions on Form I–
867B.218 Based on this experience, it is
DHS’s determination that, when
individuals are asked affirmative
questions, such as those on Form I–
867B, individuals are more likely to
respond in the affirmative, even if they
do not in fact have a fear of return or
intention of seeking asylum. Moreover,
based on this experience, DHS
concludes that providing noncitizens
with specific advisals on fear claims—
particularly given the emergency
context of this rule and because few if
any other advisals are provided—would
be suggestive and prompt many
individuals to respond in the affirmative
even if they do not have any actual fear
or intention to seek asylum. For this
reason, as well, DHS has made the
determination, based on its experience
and expertise inspecting noncitizens, to
temporarily adjust its approach to
individualized advisals and questions
about fear.
As part of this approach, DHS is
temporarily forgoing asking the fear
questions on Form I–867B with respect
to noncitizens who (1) are described in
§ 208.13(g), (2) are not described in
section 3(b) of the Proclamation, and (3)
are processed for expedited removal.
DHS anticipates that this approach will
likely lead to a higher proportion of
those referred having colorable claims
for protection. Based on the expertise of
DHS in administering Form I–867B, it
has determined that affirmative
questions are suggestive and account for
part of the high rates of referrals and
screen-ins that do not ultimately result
in a grant of asylum or protection.219
DHS believes that those noncitizens
who indicate a fear of return on their
own, in the absence of suggestive
questions, are more likely to be urgently
seeking protection. Indeed, it is DHS’s
experience and assessment that asking
questions is likely to lead individuals to
answer yes, even if they do not actually
217 See CBP, Southwest Land Border Encounters,
https://www.cbp.gov/newsroom/stats/southwestland-border-encounters (last modified May 15,
2024).
218 See 62 FR at 10312, 10318–19.
219 From 2014 through 2019, of total SWB
encounters with positive fear determinations, only
18 percent of EOIR case completions ultimately
resulted in a grant of protection or relief. OHSS
Enforcement Lifecycle December 31, 2023.
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have a fear of persecution or torture.220
DHS acknowledges that there are mixed
opinions on this point and that this may
not be the case for all individuals, such
that questioning may be helpful in order
for some individuals to feel comfortable
articulating a fear.221 DHS recognizes
220 This is also reflected in the behavioral science
concept of ‘‘acquiescence,’’ in which individuals
tend to ‘‘consistently agree to questionnaire items,
irrespective of item directionality.’’ Shane Costello
& John Roodenburg, Acquiescence Response Bias—
Yeasaying and Higher Education, 32 Australian Ed.
& Dev. Pysch. 105, 105 (2015). Studies have shown
that this bias is higher amongst those with lower
education levels and from countries that score
higher on scales of corruption or collectivism. See,
e.g., Beatrice Rammstedt, Daniel Danner & Michael
Bosnjak, Acquiescence Response Styles: A
Multilevel Model Explaining Individual-Level and
Country-Level Differences, 107 Personality &
Individual Differences 190 (2017); Seth J. Hill &
Margaret E. Roberts, Acquiescence Bias Inflates
Estimates of Conspiratorial Beliefs and Political
Misperceptions, 31 Pol. Analysis 575 (2023).
221 DHS acknowledges that some studies of the
expedited removal process concluded that the Form
I–867A information and the Form I–867B questions
are important protections, and that failure to read
the advisals led to lower referrals for credible fear
interviews. See, e.g., Allen Keller et al., Study on
Asylum Seekers in Expedited Removal as
Authorized by Section 605 of the International
Religious Freedom Act of 1998: Evaluation of
Credible Fear Referral in Expedited Removal at
Ports of Entry in the United States 16–18 (2005),
https://www.uscirf.gov/sites/default/files/resources/
stories/pdf/asylum_seekers/evalCredibleFear.pdf
(‘‘USCIRF Report’’) (finding that noncitizens who
are read the information in Form I–867A are seven
times more likely to be referred for a credible fear
interview and ‘‘the likelihood of referral for a
Credible Fear interview was roughly doubled for
each fear question asked’’); see also U.S. Gov’t
Accountability Off., Opportunities Exist to Improve
the Expedited Removal Process, No. GAO/GGD–00–
176 (Sept. 2000). DHS acknowledges that one study
concluded that there was ‘‘little evidence’’ that the
advisals and fear questions prompted noncitizens to
make fear claims, but rather most of the noncitizens
whose cases were studied ‘‘spontaneously
expressed fear of returning to their home country.’’
See USCIRF Report at 21. The same study noted
that three quarters of those had been read the
advisals on Form I–867A. See id. Given the small
sample size (n=73) and the report’s uncertain
conclusion, this report does not alleviate CBP’s long
held ‘‘concerns that [noncitizens] may be
‘prompted’ to express fears to officers by the I–867B
fear questions.’’ Id. As in 2005, at the time of the
report, DHS continues to have such concerns, and
DHS further believes that the individualized
advisals on Form I–867A raise similar ‘‘prompting’’
concerns. And, even to the extent that the study
concluded otherwise, DHS notes that, under the
manifestation standard outlined in the rule,
noncitizens continue to have the ability to
affirmatively manifest a fear. Thus, considering the
current situation at the border that gives rise to the
Proclamation and this rule and the need to allocate
limited resources to those urgently seeking
protection, DHS believes that, notwithstanding the
study’s finding, the approach taken in this rule
provides an appropriate standard for the emergency
border circumstances at issue. As noted, CBP will
be providing signs and videos advising, in a general
matter, that individuals may express a fear of
return. Accordingly, DHS has fully considered and
weighed the contrary evidence and has concluded
that the rule adopts the appropriate approach to
help meet the challenge when emergency border
circumstances are present.
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that the manifestation standard, as with
any other screening standard, could
result in some noncitizens with
meritorious claims not being referred to
a credible fear interview. However, in
light of the emergency border
circumstances facing the Departments
and addressed by the Proclamation and
this rule, DHS believes the standard is
appropriate and necessary. During
emergency border circumstances, it is
critical for the Departments to devote
their processing and screening resources
to those urgently seeking protection
while quickly removing those who are
not. DHS believes that the manifestation
standard, rather than affirmative
questioning, better achieves this balance
in emergency border circumstances.
Additionally, DHS is eliminating the
requirement that officers and agents
read the individualized advisals on
Form I–867A. DHS plans to replace
these advisals with a generalized
notice—for all individuals in CBP
facilities—of the ability to raise a claim
of fear of persecution or torture. DHS is
making this change based on its
experience suggesting that, like with the
Form I–867B questions, individualized
Form I–867A advisals would be
suggestive and would likely lead many
individuals to claim a fear of return
when they otherwise would not,
particularly given the emergency
context of this rule and because there
are few if any other advisals provided.
Based on its experience, DHS
determines that receiving these advisals
on their own is also suggestive.222 Thus,
in the context of inspecting individuals
who (1) are described in § 208.13(g), (2)
are not described in section 3(b) of the
Proclamation, and (3) are processed for
expedited removal, DHS has determined
not to require the provision of such
suggestive advisals. DHS acknowledges
that, like with the Form I–867B
questions, there are studies that show
that such advisals make it more likely
that a noncitizen will indicate a fear of
return.223 However, based on DHS’s
222 This determination is based, in part, on CBP’s
experience that the language in specific,
individualized advisals often serves as a prompt for
noncitizens to express a fear while in CBP custody.
This is, in part, because CBP understands that TCOs
coach noncitizens and advise them to listen for
certain words in the language of particular advisals
as a prompt to express a fear. While it is possible
that TCOs will provide noncitizens information
about how to manifest fear, even in the absence of
affirmative advisals, CBP believes that, at least at
the outset of the process, individuals without such
a fear or intent to seek asylum are less likely to
remember the information a TCO provided in the
absence of individualized advisals. Additionally,
CBP believes that individuals who do have a fear
of return or intend to seek asylum will generally
make such a claim even in the absence of such
advisals.
223 See, e.g., USCIRF Report at 16–18.
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experience, the nature of the emergency
border circumstances facing the
Departments, and the statutory
requirements, DHS has determined that
the approach taken here—eliminating
the requirement to provide
individualized advisals but providing
signage and videos—is appropriate.224
Indeed, DHS notes that the
manifestation standard has been used in
other urgent and challenging situations
to identify noncitizens with fear claims.
This standard has long been used by the
United States Coast Guard, a DHS
component, to determine whether an atsea protection screening interview is
required for migrants interdicted at
sea.225 This standard was also adopted
by the United States Government to
screen family units during the pendency
of the Title 42 public health Order,
when the Government was similarly
dealing with urgent, exigent
circumstances—the global pandemic—
while still allowing noncitizens an
opportunity to seek protection.226
DHS believes that the manifestation
standard is reasonably designed to
identify meritorious claims even if a
noncitizen does not expressly articulate
a fear of return. Manifestations may be
verbal, non-verbal, or physical.227 A
manifestation of fear may present with
non-verbal or physical cues, through
behaviors such as shaking, crying,
fleeing, or changes in tone of voice, or
through physical injuries consistent
with abuse.228 An individual who may
224 DHS considered whether to provide a short,
individualized advisal to inform noncitizens of
their ability to seek asylum, in addition to these
signs and videos. But DHS determined that such a
short, individualized advisal would be unlikely to
convey information more effectively than the signs
and videos that CBP already intends to use as a
general notification, and that even a short advisal
would take undue time to administer. Moreover,
CBP assesses that the signs and videos providing
general notification of the ability to seek asylum are
less suggestive than short, individualized advisals
would be.
225 U.S. State Dep’t, Bureau of Population,
Refugees, and Migration, Fact Sheet: U.S.
Commemorations Pledges (June 24, 2013), https://
2009-2017.state.gov/j/prm/releases/factsheets/2013/
211074.htm (notifying the public that U.S. Coast
Guard personnel were provided updated training
‘‘on identifying manifestations of fear by interdicted
migrants’’).
226 See Huisha-Huisha v. Mayorkas, 27 F.4th 718,
732–33 (D.C. Cir. 2022); CBP, Office of Field
Operations, Processing of Noncitizens Manifesting
Fear of Expulsion Under Title 42 (May 21, 2022);
USBP, Guidance Regarding Family Units Moving
Forward Under Title 42 (May 21, 2022).
227 See U.S. State Dep’t, Bureau of Population,
Refugees, and Migration, Fact Sheet: U.S.
Commemorations Pledges (June 24, 2013), https://
2009-2017.state.gov/j/prm/releases/factsheets/2013/
211074.htm (noting implementation of training that
‘‘demonstrates different ways a migrant might
express a verbal or non-verbal manifestation of
fear’’).
228 Id.
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not be comfortable answering a question
about whether they have a fear of return
may nevertheless manifest that fear
through an unconscious behavior,
which can be observed by the inspecting
immigration officer, and the individual
may then be referred for a fear
screening. DHS acknowledges that, in
some cases, these behaviors may reflect
circumstances other than a fear of
return—for instance, a noncitizen who
has just arrived at the border may be
physically tired, cold, hungry, and
disoriented, which may present
similarly to manifestation of fear. In
such cases, DHS immigration officers
will use their expertise and training to
determine whether the noncitizen is
manifesting a fear. If there is any doubt,
however, immigration officers will be
instructed to err on the side of caution
and refer the noncitizen to an AO for a
credible fear interview.
Moreover, DHS will provide
immigration officers with information
on how to apply the standard, which
will build on their existing training and
experience. Indeed, as noted above, CBP
immigration officers (both USBP agents
and CBP officers) have extensive
experience interviewing and observing
individuals. As a result of their
experience and training, they have skills
and expertise in interacting with
individuals and observing human
behavior and in determining
appropriate follow up steps with regards
to any behaviors or indicators of
concern. For instance, upon
encountering a group of individuals
who purport to be a family, USBP agents
will observe the individuals to
determine whether they evidence
typical familial behavior or whether
there are any concerns about the
validity of the asserted familial
relationship or the safety of any
children in the group. Agents and
officers are also trained on identifying
potential trafficking victims or victims
of crimes and are trained on appropriate
follow up action. Additionally, agents
and officers frequently encounter
individuals who may be vulnerable,
including those in physical or medical
distress or in need of humanitarian care,
as well as those who may be seeking
protection in the United States. Agents
and officers can similarly use such skills
and experiences to identify any
manifestations of fear. Agents and
officers will also receive information on
how to apply the manifestation
standard, including that manifestation
may occur verbally, non-verbally, or
physically. DHS believes that this
experience, coupled with guidance, will
help agents and officers effectively
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identify noncitizens with potential fear
or asylum claims under a manifestation
approach. Therefore, DHS believes that
this rule remains consistent with the
need to ‘‘safeguard[]’’ the rights of
asylum seekers. See 62 FR at 10319.
Because an immigration officer’s
observation of whether a noncitizen
manifests a fear—rather than a
noncitizen’s answers to affirmative
questions regarding asylum—will lead
to a referral to an AO for a fear
screening, this standard may result in a
greater proportion of those referred to an
AO being individuals with meritorious
claims.
Additionally, the manifestation
standard in the rule will enable DHS to
streamline the process, allowing it to
process noncitizens in a more
expeditious manner during the
emergency border circumstances
identified in the Proclamation and this
rule. In particular, DHS anticipates that
omitting the requirement to complete
Form I–867A and I–867B will save
about 20 to 30 minutes per noncitizen,
providing DHS with—based on the
number of cases in March 2024—
approximately 14,000 extra personnel
hours per month.229 This increased
efficiency is critical for processing
noncitizens in an expeditious way, and
thus will better ensure that, given the
immense challenges of irregular
migration at the southern border, DHS’s
limited resources are used most
effectively while still affording
opportunities for noncitizens to seek
asylum or protection. Indeed, this is
particularly critical in the emergency
border circumstances described in the
Proclamation and the rule. As discussed
above, given the number of noncitizens
and the time it takes to process them
during periods of heightened
encounters, expediting the process is
critical for avoiding overcrowding and
ensuring safe conditions for those in
custody.230
For all of these reasons, DHS believes
that the ‘‘manifestation of fear’’
standard, as explained in the rule, will
enable immigration officers to
effectively identify noncitizens who
require credible fear interviews while
streamlining the process. During the
emergency circumstances described in
the Proclamation and the rule, it is
important for immigration officers to
229 At a time savings of 30 minutes per
noncitizen, multiplied by 28,466 noncitizens
processed for expedited removal in March 2024, see
OHSS analysis of data downloaded from UIP on
April 2, 2024, DHS would save approximately
14,000 hours per month.
230 See Decl. of Matthew J. Hudak ¶¶ 7, 17–22,
Florida v. Mayorkas, No. 3:22–cv–9962 (N.D. Fla.
May 12, 2023) (Dkt. 13–1).
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expeditiously process and swiftly apply
consequences to noncitizens while still
affording access to protection. Here, the
Departments are currently facing such
emergency circumstances, as explained
above in Sections III.B.1 and 2 of this
preamble. DHS believes that the
approach taken in the rule is the most
appropriate one in light of the situation
at the southern border, as explained in
this rule and as discussed in the
Proclamation, balancing the need to
protect those who may wish to seek
protection in the United States against
an urgent need to use DHS resources
effectively.
c. Raising the Standard for Protection
Screening
Under this rule, if the AO determines
that, in light of the limitation on asylum
eligibility under 8 CFR 208.35(a), there
is not a significant possibility that the
noncitizen could establish eligibility for
asylum, see INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v), the AO will
enter a negative credible fear
determination with respect to the
noncitizen’s asylum claim. See 8 CFR
208.35(b)(1)(i). The AO will then assess
whether the noncitizen has established
a reasonable probability of persecution
(meaning a reasonable probability of
being persecuted because of their race,
religion, nationality, membership in a
particular social group, or political
opinion) or torture, with respect to the
designated country or countries of
removal identified pursuant to section
241(b)(2) of the INA, 8 U.S.C.
1231(b)(2).231 See 8 CFR 208.35(b)(2)(i).
Likewise, when reviewing a negative
credible fear determination, where the IJ
concludes that there is not a significant
possibility that the noncitizen could
establish eligibility for asylum in light
of the limitation on asylum eligibility,
the IJ will assess whether the noncitizen
has established a reasonable probability
of persecution because of a protected
ground or torture. See 8 CFR
1208.35(b)(2)(ii).
The Departments have some
discretion to articulate the screening
standard for claims for statutory
withholding of removal and protection
under the CAT. As the Departments
observed previously, ‘‘Congress clearly
expressed its intent that the ‘significant
possibility’ standard be used to screen
for asylum eligibility but did not
express any clear intent as to which
standard should apply to other
231 As noted above, DHS is also concurrently
soliciting comment on the Application of Certain
Mandatory Bars Notice of Proposed Rulemaking,
which proposes that certain mandatory bars be
considered at the screening stage under a
reasonable possibility standard.
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applications.’’ 88 FR at 11742. In
addition, ‘‘the legislative history
regarding the credible fear screening
process references only asylum.’’ Id. at
11743. By contrast, section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3), and
FARRA section 2242 are silent as to
what screening procedures are to be
employed, while the INA elsewhere
confers broad discretionary authority to
establish rules and procedures for
implementing those provisions, see, e.g.,
INA 103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3),
(g)(2).
Moreover, in past rules applying a
‘‘reasonable possibility’’ screening
standard to claims for statutory
withholding of removal or CAT
protection, the Departments have noted
that such a screening standard is used
‘‘in other contexts where noncitizens
would also be ineligible for asylum.’’ 88
FR at 11743 (citing 8 CFR 208.31(c), (e));
see also, e.g., Procedures for Asylum
and Withholding of Removal; Credible
Fear and Reasonable Fear Review, 85 FR
36264, 36270 (June 15, 2020)
(referencing ‘‘the established framework
for considering whether to grant
statutory withholding of removal or
CAT protection in the reasonable fear
context’’). Under the Circumvention of
Lawful Pathways rule, ‘‘[i]f a noncitizen
is subject to the lawful pathways
condition on eligibility for asylum and
not excepted and cannot rebut the
presumption of the condition’s
applicability, there would not be a
significant possibility that the
noncitizen could establish eligibility for
asylum.’’ 88 FR at 11742. For those
noncitizens, the Departments
implemented a ‘‘reasonable possibility
of persecution or torture’’ screening
standard for statutory withholding of
removal and protection under the CAT.
See 8 CFR 208.33(b)(2)(ii),
1208.33(b)(2)(ii). The Departments
similarly believe that those who enter
across the southern border during the
emergency border circumstances
identified in the Proclamation and this
rule and who are not described in
section 3(b) of the Proclamation, do not
establish an enumerated exception, and
are unable to establish a significant
possibility of eligibility for asylum
should be screened for protection under
a higher screening standard.
The Departments’ experience with the
Circumvention of Lawful Pathways rule
has validated the Departments’ choice to
use an elevated screening standard to
narrowly focus limited resources on
those who are likely to be persecuted or
tortured and to remove those who are
unlikely to establish eligibility for
statutory withholding of removal or
CAT protection. Under that rule, which
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uses a ‘‘reasonable possibility of
persecution or torture’’ screening
standard for statutory withholding of
removal and CAT protection claims, the
Departments have processed record
numbers of noncitizens through
expedited removal and have seen a
significant decrease in the rate at which
noncitizens receive positive credible
fear determinations, showing greater
operational efficiencies.232 Between
May 12, 2023, and March 31, 2024,
USCIS completed more than 152,000
credible fear interviews resulting from
SWB expedited removal cases—this is
more than twice as many interviews
during the span of ten and a half months
than the 75,000 interviews resulting
from SWB encounters that USCIS
averaged each year from FY 2014 to FY
2019.233 Between May 12, 2023, and
March 31, 2024, 52 percent
(approximately 57,000) of those who
were subject to the rule’s presumption
were able to establish a credible fear of
persecution or torture under the
‘‘reasonable possibility’’ standard,234
compared to an 83 percent credible fear
screen-in rate in the pre-pandemic
period of 2014 to 2019.235 From 2014
through 2019, of SWB expedited
removal cases with positive fear
determinations, less than 25 percent of
EOIR case completions ultimately
232 Decl. of Blas Nuñez-Neto ¶ 7, M.A. v.
Mayorkas, No. 1:23–cv–01843 (D.D.C. Oct. 27, 2023)
(Dkt. 53–1). The screen-in rate refers to the
percentage of cases with a positive fear
determination calculated by dividing the number of
cases that receive a positive fear determination by
the total number of determinations made (i.e.,
positive and negative fear determinations). See id.
¶ 7 n.2.
233 Pre-May 12, 2023, data from OHSS
Enforcement Lifecycle Dataset December 31, 2023;
post-May 11, 2023, data from OHSS analysis of data
downloaded from UIP on April 2, 2024.
234 OHSS analysis of data downloaded from UIP
on April 2, 2024. At this time, data on EOIR’s grant
rate under the Circumvention of Lawful Pathways
rule is not available because only a small number
of cases processed under that rule have been
completed. From May 12 through November 30,
2023 (the most recent data for which fully linked
records are available), a total of 61,000 SWB
expedited removal cases have been referred to EOIR
for section 240 removal proceedings, including
1,400 with case completions (2.2 percent). In
addition, cases that are already completed are a
biased sample of all future completions because in
years since FY 2014, the median processing time for
cases resulting in relief or other protection from
removal has been, on average, about six times
longer than the median processing time for cases
resulting in removal orders, so reporting on the
small data set of already completed cases would
yield a relief rate that is artificially low. OHSS
analysis of OHSS Enforcement Lifecycle Dataset
December 31, 2023 and OHSS analysis of EOIR data
as of January 31, 2024.
235 OHSS Enforcement Lifecycle Dataset as of
December 31, 2023.
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resulted in a grant of protection or
relief.236
Screening under the ‘‘reasonable
possibility’’ standard has allowed the
Departments to screen out and swiftly
remove additional noncitizens whose
claims are unlikely to succeed at the
merits stage. Although fewer
noncitizens are screened in under the
‘‘reasonable possibility’’ standard
applied in the context of the
Circumvention of Lawful Pathways rule,
that screen-in rate remains significantly
higher than the grant rate for ultimate
merits adjudication for SWB expedited
removal cases that existed prior to the
rule.237 Under the emergency border
circumstances described in the
Proclamation and this rule, the
Departments’ limited resources must be
focused on processing those who are
most likely to be persecuted or tortured
if removed, and overall border security
and immigration systems efficiencies
outweigh any challenges related to
training on a new screening standard
and a possible marginal increase in
interview length resulting from the
application of a new standard in
screening interviews. Likewise, the
benefits of this rule, which is consistent
with all statutory and regulatory
requirements and the United States’
international law obligations, outweigh
any potential marginal increase in the
likelihood that a meritorious case would
fail under the raised screening standard.
Swiftly removing noncitizens without
meritorious claims is critical to
deterring noncitizens from seeking entry
under the belief that they will be
released and able to remain in the
United States for a significant period.
See, e.g., 88 FR at 31324 (discussing the
success of the CHNV parole processes as
being in part due to imposing
consequences for failing to use a lawful
pathway, namely swift removal); 88 FR
at 11713 (noting that in the 60 days
immediately following DHS’s
resumption of routine repatriation
flights to Guatemala and Honduras,
average daily encounters fell by 38
percent for Guatemala and 42 percent
for Honduras).238
236 OHSS Enforcement Lifecycle Dataset as of
December 31, 2023.
237 DHS OHSS Enforcement Lifecycle Dataset as
of December 31, 2023.
238 See also, e.g., Muzaffar Chishti et al., At the
Breaking Point: Rethinking the U.S. Immigration
Court System, Migration Pol’y Inst., at 11 (2023),
https://www.migrationpolicy.org/sites/default/files/
publications/mpi-courts-report-2023_final.pdf (‘‘In
the case of noncitizens crossing or arriving at the
U.S.-Mexico border without authorization to enter,
years-long delays create incentives to file frivolous
asylum claims that further perpetuate delays for
those eligible for protection, undermining the
integrity of the asylum system and border
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To allow for swift removals in the
case of those noncitizens who the
Departments are confident are unlikely
to meet their ultimate burden to
establish eligibility for statutory
withholding of removal or protection
under the CAT, the Departments have
decided to raise the screening standard
to ‘‘reasonable probability of
persecution or torture’’ during the
emergency border circumstances
described in the Proclamation and this
rule. The Departments define this
‘‘reasonable probability’’ standard as
‘‘substantially more than a reasonable
possibility, but somewhat less than
more likely than not.’’ 8 CFR
208.35(b)(2)(i), 1208.35(b)(2)(ii). Under
this standard, a noncitizen would be
screened in if they provide credible
testimony 239 and set forth a credible
claim with sufficient specificity for an
AO or IJ to be persuaded that there is
a reasonable probability that the
noncitizen would be persecuted or
tortured so as to qualify for statutory
withholding of removal or CAT
protection in an ultimate merits
adjudication.
The Departments view the difference
between the ‘‘reasonable possibility’’
standard and the new ‘‘reasonable
probability’’ standard as being that the
new standard requires a greater
specificity of the claim in the
noncitizen’s testimony before the AO or
the IJ. In particular, although claims
based on general fears of return may at
times be found to meet the ‘‘reasonable
possibility’’ standard where evidence in
the record of country conditions
enforcement.’’); Doris Meissner, Faye Hipsman, & T.
Alexander Aleinikoff, The U.S. Asylum System in
Crisis: Charting a Way Forward, Migration Pol’y
Inst., at 9 (2018), https://www.migrationpolicy.org/
sites/default/files/publications/MPIAsylumSystemInCrisis-Final.pdf (‘‘Incentives to
misuse the asylum system may also be reemerging.
For example, over the past five years, the number
of employment authorization documents (EADs)
approved for individuals with pending asylum
cases that have passed the 180-day mark increased
from 55,000 in FY 2012 to 270,000 in FY 2016, and
further to 278,000 in just the first six months of FY
2017. This high and growing level of EAD grants
may suggest that, as processing times have grown,
so too have incentives to file claims as a means of
obtaining work authorization and protection from
deportation, without a sound underlying claim to
humanitarian protection.’’).
239 Credible testimony alone is sufficient in a
credible fear screening, and AOs are trained to ask
questions to elicit testimony to assist the noncitizen
in meeting their burden with testimony alone.
Although testimony alone could certainly meet the
burden, it is not required that the burden be met
solely through testimony. And even though
corroborating evidence is not required, AOs will
consider any additional evidence the noncitizen
presents. Additionally, AOs are trained to conduct
interviews of individuals with persecution or nonpersecution-related injuries, traumas, or conditions
that may impact their ability to provide testimony
for themselves.
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indicates instances of persecution or
torture within the country, such claims
are less likely to be sufficient under the
‘‘reasonable probability’’ standard when
the noncitizen cannot provide greater
detail in their statements and
information as to the basis for their
individual claim.
The Departments frequently see such
general claims of fear that lack
specificity at both the screening and
merits stage. However, generalized fear
of persecution is ultimately not
sufficient to establish a claim. See
Sharma v. Garland, 9 F.4th 1052, 1060
(9th Cir. 2023) (‘‘[A]dverse country
conditions are not sufficient evidence of
past persecution, for the obvious reason
that ‘[t]o establish past persecution, an
applicant must show that he as
individually targeted on account of a
protected ground rather than simply the
victim of generalized violence.’ ’’
(quoting Hussain v. Rosen, 985 F.3d
634, 646 (9th Cir. 2012))); Prasad v. INS,
101 F.3d 614, 617 (9th Cir. 1996)
(stating that to establish past
persecution, ‘‘[i]t is not sufficient to
show [the applicant] was merely subject
to the general dangers attending a civil
war or domestic unrest’’); Al Fara v.
Gonzales, 404 F.3d 733, 740 (3d Cir.
2005) (‘‘[G]enerally harsh conditions
shared by many other persons do not
amount to persecution. . . . [H]arm
resulting from country-wide civil strife
is not persecution on account of an
enumerated statutory factor.’’ (quotation
marks omitted)); see also Debab v. INS,
163 F.3d 21, 27 (1st Cir. 1998) (citing
cases).
Moreover, to establish ultimate
eligibility for CAT protection, the
noncitizen must demonstrate an
individualized risk of torture—not a
general possibility of it. See EscobarHernandez v. Barr, 940 F.3d 1358, 1362
(10th Cir. 2019) (‘‘[P]ervasive violence
in an applicant’s country generally is
insufficient to demonstrate the
applicant is more likely than not to be
tortured upon returning there.’’);
Bernard v. Sessions, 881 F.3d 1042,
1047 (7th Cir. 2018) (‘‘Evidence of
generalized violence is not enough; the
IJ must conclude that there is a
substantial risk that the petitioner will
be targeted specifically.’’); LorzanoZuniga v. Lynch, 832 F.3d 822, 830–31
(7th Cir. 2016) (‘‘[G]eneralized violence
or danger within a country is not
sufficient to make a claim that it is more
likely than not that a petitioner would
be tortured upon return to his home
country.’’); Alvizures-Gomes v. Lynch,
830 F.3d 49, 55 (1st Cir. 2016) (country
reports demonstrating overall
corruption and ineffectiveness of
Guatemalan authorities ‘‘do not relieve
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[the applicant] of the obligation to point
to specific evidence indicating that he,
personally, faces a risk of torture
because of these alleged shortcomings’’);
Delgado-Ortiz v. Holder, 600 F.3d 1148,
1152 (9th Cir. 2010) (‘‘Petitioners’
generalized evidence of violence and
crime in Mexico is not particular to
Petitioners and is insufficient to meet
th[e] standard [for eligibility for CAT
protection].’’).
Under the ‘‘reasonable possibility’’
standard, a noncitizen presenting a
claim based on general civil strife is
sometimes found to pass the screening
stage even where they provide only
general testimony about their fear of
harm. For example, a noncitizen may
meet the ‘‘reasonable possibility’’
standard where he expresses a fear of
being killed by the government upon his
return to his native country, United
States Government reports indicate the
country may engage in human rights
abuses, and the noncitizen has been
involved in anti-government political
activism for years, even absent specific
information as to an individualized
threat against the noncitizen or any
other individuals who have been
threatened or harmed. But to meet the
‘‘reasonable probability’’ standard, the
noncitizen would either need to explain
with some specificity why he thinks he,
in particular, is likely to be harmed, or
the record would have to reflect some
specific information regarding the
treatment of anti-government political
activists similarly situated to the
applicant. Such claims are assessed on
a case-by-case basis. As an example,
however, were the noncitizen to
credibly state that he knew, and to
provide details about, people who are
similarly situated to him who have been
killed, harmed, or credibly threatened,
that testimony may be sufficient to meet
the ‘‘reasonable probability’’ standard
because it provides more specificity as
to why the noncitizen believes he would
be harmed. The Departments believe
that the ‘‘reasonable probability’’
standard, by requiring additional
specificity, will better identify claims
that are likely to be meritorious in a full
adjudication while screening out those
whose claims are not likely to
prevail.240
240 Although the Departments believe the
standard will better identify claims that are likely
to be meritorious, for now the Departments do not
seek to apply the ‘‘reasonable probability’’ standard
outside the context of this rule—that is, to those
who do not establish a significant possibility of
eligibility for asylum because of the limitation on
asylum eligibility or, if the limitation is rendered
inoperative by court order, to those who are
ineligible for asylum under the Circumvention of
Lawful Pathways rule, see 8 CFR 208.35(b)(2)(i) and
(3), 1208.35(b)(2)(iii) and (4)—because in this rule
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48747
The Departments are confident that
AOs and IJs can apply this heightened
standard effectively to identify those
who are likely to have viable claims on
the merits while mitigating the
possibility that those with a viable claim
would be screened out. The level of
specificity and certainty that the
‘‘reasonable probability’’ standard
requires remains lower than the
ultimate merits standard, and AOs and
IJs have the training and experience
necessary to elicit the information
required to determine whether a case is
sufficiently specific to meet the
‘‘reasonable probability’’ standard.241
This is particularly the case because, in
implementing such training, USCIS
expects to adapt existing training,
including on the ultimate merits
standard, to prepare AOs on the
‘‘reasonable probability’’ screening
standard, since the way evidence is
evaluated remains the same, save for the
degree of specificity required. AOs
especially have significant training in
non-adversarial interview techniques
and are required to elicit testimony from
the noncitizen—in effect, to help the
noncitizen meet their burden through
testimony alone.242 If upon such
questioning a noncitizen is unable to
provide specific facts that lead the AO
or IJ to believe that the noncitizen
would be able to meet their burden with
more opportunity to prepare, such
claims are unlikely to prevail at the
merits stage.
Moreover, this heightened screening
standard targets information—
specificity based on the noncitizen’s
own knowledge—that should generally
be available at the screening stage. A
noncitizen at the screening stage
generally would have information
regarding their fear of harm, such as
whom they are afraid of and why, and
an AO will elicit information regarding
the claim that either is sufficiently
specific to satisfy the heightened
screening standard or is not. Credible
the Departments are addressing emergency border
circumstances rather than regulating to change the
status quo. The Departments may consider such
changes in future rulemaking.
241 USCIS, RAIO Directorate—Officer Training:
Interviewing—Eliciting Testimony (Dec. 20, 2019);
EOIR, Fact Sheet: Immigration Judge Training (June
2022), https://www.justice.gov/eoir/page/file/
1513996/dl?inline.
242 USCIS, RAIO Directorate—Officer Training:
Interviewing—Introduction to the Non-Adversarial
Interview (Dec. 20, 2019). As described in a
previous rule, AOs have experience in ‘‘country
conditions and legal issues, as well as
nonadversarial interviewing techniques,’’ and they
have ‘‘ready access to country conditions experts.’’
Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers, 86
FR 46906, 46918 (Aug. 20, 2021).
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testimony alone can satisfy the
noncitizen’s burden and is sometimes
the only available evidence of
persecution or torture. See, e.g., Matter
of Mogharrabi, 19 I&N Dec. 439, 443
(BIA 1987). In most cases, noncitizens
would have such information at the
screening stage, and the Departments
expect—and logic suggests—that such
information could be shared through
testimony. Instances of past harm or
those that inform a future fear of return
that caused a noncitizen to seek
protection generally occur before entry
and would not be expected to develop
after the fact of entry or after the
screening stage. Hence, the Departments
believe that this standard will screen
out claims that are likely to fail at the
merits stage and poses only a minimal
risk of screening out claims that could
ultimately succeed. For example, if a
noncitizen does not know who harmed
or would harm them or why, in the
Departments’ experience, AOs and IJs
will often be able to determine—
depending on the facts of the case—that
it is unlikely that the noncitizen will be
able to provide answers to those critical
questions at the merits stage.
In addition, AOs and IJs also receive
training in, and have substantial
experience weighing, country
conditions, which will further help
them assess whether and under what
circumstances the lack of specificity in
a noncitizen’s testimony indicates that
they have little prospect of meeting their
ultimate burden.243 For example, it may
243 USCIS, RAIO Directorate—Officer Training:
Decision Making (Dec. 20, 2019); USCIS, RAIO
Directorate—Officer Training: Interviewing—
Eliciting Testimony (Dec. 20, 2019); USCIS, RAIO
Directorate—Officer Training: Interviewing—
Introduction to the Non-Adversarial Interview (Dec.
20, 2019); 86 FR at 46918. IJs ‘‘receive extensive
training upon entry on duty, annual training, and
periodic training on specialized topics as
necessary.’’ Procedures for Credible Fear Screening
and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum
Officers, 87 FR 18078, 18170 (Mar. 29, 2022); see
also EOIR, Fact Sheet: Immigration Judge Training
(June 2022), https://www.justice.gov/eoir/page/file/
1513996/dl?inline. Moreover, IJs are required to
maintain professional competence in the law, U.S.
Dep’t of Justice, Ethics and Professionalism Guide
for Immigration Judges § IV (Jan. 26, 2011), https://
www.justice.gov/sites/default/files/eoir/legacy/
2013/05/23/
EthicsandProfessionalismGuideforIJs.pdf, which
necessarily includes the elements required to
establish eligibility for relief or entitlement to
protection from removal, id. Consistent with their
role in adjudicating asylum and related protection
applications, IJs have long been able to take
administrative notice of commonly known facts,
including country conditions evidence. See 8 CFR
208.12 (1997) (stating that the adjudicator may rely
on information from a variety of sources ranging
from the Department of State to credible
international organizations or academic
institutions); 8 CFR 208.1(a) (1997) (stating this part
shall apply to all applicants for asylum whether
before an AO or an IJ). Federal Government country
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be the case that where a noncitizen
expresses only generalized fear of harm
based on their ethnicity, but country
conditions confirm serious, ongoing
harm in the form of widespread,
systematic persecutory acts by
government institutions targeting
individuals who are similarly situated
to the noncitizen, adjudicators will rely
on that information to deem the
‘‘reasonable probability’’ standard
satisfied.
AOs, supervisory AOs, and IJs receive
training and have experience applying
asylum, statutory withholding of
removal, and CAT protection screening
standards and in applying and
reviewing decisions related to the
ultimate asylum (for USCIS and EOIR)
and statutory withholding of removal
and CAT protection (for EOIR) merits
standards, so they are well-suited to be
able to identify in a screening whether
the information the noncitizen has
provided is sufficiently specific to lead
them to believe that the noncitizen may
be able to establish eligibility at the
merits stage.244 Moreover, all credible
fear determinations must be concurred
upon by a supervisory AO before they
become final to ensure quality and
consistency and will be subject to de
novo IJ review if requested by the
noncitizen. See 8 CFR 235.3(b)(7),
235.15(b)(2)(i)(B), 1208.35(b).
Although AOs, supervisory AOs, and
IJs will have to be trained on applying
the new ‘‘reasonable probability of
persecution or torture’’ standard, the
standard as explained above is not a
conditions reports, such as the U.S. Department of
State country conditions reports, are longstanding,
credible sources of information to which IJs often
look. See, e.g., Sowe v. Mukasey, 538 F.3d 1281,
1285 (9th Cir. 2008) (‘‘U.S. Department of State
country reports are the most appropriate and
perhaps the best resource for information on
political situations in foreign nations.’’ (quotation
marks omitted)); Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 341 (2d Cir. 2006)
(Department of State country reports are ‘‘usually
the best available source of information on country
conditions’’ (quotation marks omitted)).
244 See USCIS, RAIO Directorate—Officer
Training: Note Taking (Feb. 12, 2024); USCIS, RAIO
Directorate—Officer Training: Interviewing—
Survivors of Torture and Other Severe Trauma
(Nov. 2, 2023); USCIS, RAIO Directorate—Officer
Training: Children’s Claims (Dec. 20, 2020); USCIS,
RAIO Directorate—Officer Training: Interviewing—
Introduction to the Non-Adversarial Interview (Dec.
20, 2019); USCIS, RAIO Directorate—Officer
Training: Interviewing—Eliciting Testimony (Dec.
20, 2019); USCIS, RAIO Directorate—Officer
Training: Cross-Cultural Communication and Other
Factors That May Impede Communication at an
Interview (Dec. 20, 2019); USCIS, RAIO
Directorate—Officer Training: Detecting Possible
Victims of Trafficking (Dec. 20, 2019); USCIS, RAIO
Directorate—Officer Training: Interviewing—
Working With an Interpreter (Dec. 20, 2019); EOIR,
Fact Sheet: Immigration Judge Training (June 2022),
https://www.justice.gov/eoir/page/file/1513996/
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significant departure from the types of
analyses AOs, supervisory AOs, and IJs
conduct on a daily basis. Rather, it is a
matter of degree—to meet the
‘‘reasonable probability of persecution
or torture’’ standard, the noncitizen
must present more specificity than is
required to meet the ‘‘reasonable
possibility of persecution or torture’’
standard, but not so much as to
establish ultimate eligibility for
protection. Indeed, to meet the ultimate
standard, noncitizens may still be
required to provide more evidence—
whether testimonial or documentary.
The Departments do not believe that
applying the ‘‘reasonable probability of
persecution or torture’’ standard will
increase the time required for credible
fear interviews by any great margin.
AOs generally ask similar questions to
elicit information from noncitizens
during screening interviews regardless
of the standard they will apply to the
information elicited. The difference will
be whether the information provided as
a result of those questions reaches the
required level of specificity. That said,
there may be cases where an AO
believes that the noncitizen may be able
to meet the ‘‘reasonable probability of
persecution or torture’’ standard after
answering a few additional questions.
But even if there is a marginal increase
in the length of some interviews, the
Departments believe that the interest in
swift removal of those unlikely to
establish eligibility for protection during
emergency border circumstances
outweighs the risk of some interviews
taking longer.245 This is because a
higher standard will be more likely to
create a deterrent: Those less likely to
establish eligibility for statutory
withholding of removal or CAT
protection will be swiftly removed
rather than being released and waiting
years for a hearing, or in some cases,
absconding and remaining in the United
States unlawfully. And this deterrent
effect could lead to lower encounter
levels as noncitizens and smugglers
realize that the process is functioning
245 In Section III.B.3.b of this preamble, the
Departments conclude that there is a need to
streamline immigration officers’ processing of
noncitizens through expedited removal while the
Proclamation’s suspension and limitation on entry
is in effect. That reasoning is not inconsistent with
the reasoning here. Because AOs interview only a
subset of noncitizens processed through expedited
removal, the Departments believe at most a portion
of those noncitizens’ credible fear interviews may
be longer, and, as noted, any marginal increase in
the time it takes to conduct some interviews is
outweighed by improving deterrence and avoiding
erroneous screen-ins, which result in noncitizens
being added to the backlog of immigration cases
and being released into and remaining in the United
States for a significant period of time.
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more effectively.246 Screening out those
unlikely to establish eligibility for
protection has the added benefit of
saving United States Government
resources overall because fewer
noncitizens who are unlikely to
establish eligibility for protection will
be placed into section 240 removal
proceedings before EOIR, which as of
the end of December 2023 had a backlog
of more than 2.7 million cases.247
In developing this rule, the
Departments considered the possibility
that the application of different
screening standards to ‘‘the same or a
closely related set of facts’’ might result
in inefficiencies. See 87 FR at 18091; see
also 88 FR at 11746. The Departments
note, however, that under this rule, that
is unlikely to be the case. The facts
relevant to whether a noncitizen is
subject to the rule’s limitation on
asylum eligibility will only rarely be
relevant to the inquiry into whether the
noncitizen has a fear of persecution or
torture. For example, whether the
noncitizen faced an acute medical
emergency that excepts them from the
rule under 8 CFR 208.35(a)(2)(i)(A) or
1208.35(a)(2)(i)(A) will not likely be
relevant to whether the noncitizen has
a fear of persecution or torture in their
designated country of removal and so
only the ‘‘reasonable probability’’
standard will be applied to the facts
relevant to their persecution or torture
claim. And where a noncitizen meets
such an exception, they will continue to
be eligible to pursue asylum in addition
to any claim of persecution or torture,
246 See Muzaffar Chishti et al., At the Breaking
Point: Rethinking the U.S. Immigration Court
System, Migration Pol’y Inst., at 11 (2023), https://
www.migrationpolicy.org/sites/default/files/
publications/mpi-courts-report-2023_final.pdf (‘‘In
the case of noncitizens crossing or arriving at the
U.S.-Mexico border without authorization to enter,
years-long delays create incentives to file frivolous
asylum claims that further perpetuate delays for
those eligible for protection, undermining the
integrity of the asylum system and border
enforcement.’’); Doris Meissner, Faye Hipsman, & T.
Alexander Aleinikoff, The U.S. Asylum System in
Crisis: Charting a Way Forward, Migration Pol’y
Inst., at 9 (2018), https://www.migrationpolicy.org/
sites/default/files/publications/MPIAsylumSystemInCrisis-Final.pdf (‘‘Incentives to
misuse the asylum system may also be reemerging.
For example, over the past five years, the number
of employment authorization documents (EADs)
approved for individuals with pending asylum
cases that have passed the 180-day mark increased
from 55,000 in FY 2012 to 270,000 in FY 2016, and
further to 278,000 in just the first six months of FY
2017. This high and growing level of EAD grants
may suggest that, as processing times have grown,
so too have incentives to file claims as a means of
obtaining work authorization and protection from
deportation, without a sound underlying claim to
humanitarian protection.’’).
247 See EOIR, Adjudication Statistics: Pending
Cases, New Cases, and Total Completions (Jan. 18,
2024), https://www.justice.gov/eoir/media/1344791/
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and those claims will all be considered
only under the ‘‘significant possibility’’
standard. Similarly, whether a
noncitizen faced an imminent and
extreme threat to life and safety that
excepts them from the rule under 8 CFR
208.35(a)(2)(i)(B) or 1208.35(a)(2)(i)(B)
will involve an evaluation of the
discrete set of circumstances at the time
of the noncitizen’s arrival at the border,
and will not likely be relevant to
whether the noncitizen has a fear of
persecution or torture in their
designated country of removal. The
question of an imminent threat relates to
the situation immediately prior to the
noncitizen’s entry into the United
States, rather than necessarily any fear
of persecution or torture. Thus, the
Departments do not believe there will
generally be a need to apply multiple
standards to the same set of facts.
d. The Scope of This Rule
The Departments have decided to tie
the application of this IFR, including
the limitation on asylum eligibility, to
emergency border circumstances. The
suspension and limitation on entry
applies beginning at 12:01 a.m. eastern
time on June 5, 2024. The suspension
and limitation on entry will be
discontinued 14 calendar days after the
Secretary makes a factual determination
that there has been a 7-consecutivecalendar-day average of less than 1,500
encounters, as defined by the
Proclamation, but excluding noncitizens
determined to be inadmissible at a SWB
POE. If encounters increase again
(including during the 14-calendar-day
period), the suspension and limitation
will apply again (or continue to apply,
as applicable) after the Secretary makes
a factual determination that there has
been a 7-consecutive-calendar-day
average of more than 2,500 encounters,
as defined by the Proclamation, but
excluding noncitizens determined to be
inadmissible at a SWB POE. These
thresholds are consistent with those set
forth in sections 2(a) and (b) of the
Proclamation.248 In order to maximize
248 The 14-day waiting period prior to a
discontinuation provides time for the Departments
to complete processing of noncitizens encountered
during emergency border circumstances and to
confirm that a downward trend in encounters is
sustained. The absence of a similar waiting period
prior to a reactivation reflects the operational
exigencies in a circumstance in which there has
been a 7-consecutive-calendar-day average of more
than 2,500 encounters and is necessary to avoid a
surge to the border in advance of a reactivation. As
the Departments have explained, the preliminary
data pulled from DHS’s operational systems have
not undergone a full validation process. See supra
note 5. But a rapid policy and operational response
to emergency border circumstances requires relying
on this more recent data when making factual
determinations consistent with sections 2(a) and
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48749
the consequences for those who cross
unlawfully or without authorization,
DHS endeavors to deliver consequences
swiftly to the highest proportion of
individuals who fail to establish a legal
basis to remain the United States. This
includes, subject to available resources,
referring the maximum number of
eligible individuals possible into
expedited removal to quickly adjudicate
their claims. However, as described
below, DHS has been limited in its
ability to do so as a result of capacity
and resource constraints. The number of
people who can be processed for
expedited removal is dependent on the
Departments’ resources and can be
impacted by several factors, including
limited detention beds and holding
capacity; 249 the presence or absence of
sufficient AOs to conduct credible fear
interviews for all those who claim a fear
or indicate an intent to apply for
asylum; the availability of IJs to review
negative fear findings; and the ability to
repatriate individuals ordered removed
in a timely manner—an option that is
not always available because, among
other things, it relies on independent
decisions made by foreign governments.
Sustained high encounter rates
threaten to overwhelm the Departments’
ability to effectively process, detain, and
remove the migrants encountered, as
appropriate, in a timely manner. See 88
FR at 31316. The President has
determined that the suspension and
limitation on entry is necessary to
manage encounter levels. The
Departments have determined that
emergency border circumstances
described in the Proclamation and this
rule necessitate this rule’s limitation on
asylum eligibility and changes to the
referral process and screening standard
because, in such circumstances, DHS
lacks the capacity to deliver timely
consequences, and absent this rule,
must resort to large-scale releases of
noncitizens pending section 240
removal proceedings, which leads to
significant harms and threatens to
incentivize further migration by
individuals who recognize the
2(b) of the Proclamation. Hence, the data used to
make these factual determinations may differ
somewhat from the more definitive numbers that
ultimately emerge from DHS’s full validation
process.
249 See, e.g., Consolidated Appropriations Act,
2024, Public Law 118–47, 138 Stat. 460, 598 (2024).
The joint explanatory statement states that the bill
provides ‘‘$5,082,218,000 for Enforcement and
Removal Operations (ERO)’’ and ‘‘$355,700,000 for
41,500 beds for the full fiscal year and inflationary
adjustments to support current detention facility
operations.’’ 170 Cong. Rec. H1807, H1812 (daily
ed. Mar. 22, 2024).
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limitations on the ability to deliver
timely consequences.250
DHS simply lacks sufficient resources
to detain and conduct credible fear
interviews for the number of
noncitizens arriving each day who claim
a fear of return when processed through
expedited removal. This mismatch in
available resources and encounters
creates stress on the border and
immigration systems and forces DHS to
rely on processing pathways outside of
expedited removal—limiting DHS’s
ability to swiftly deliver consequences
on individuals who do not have a legal
basis to remain in the United States.251
The Departments have determined that
the 1,500-encounter threshold is a
reasonable proxy for when the border
security and immigration system is no
longer over capacity and the measures
adopted in this rule are not necessary to
deal with such circumstances.
At the outset, it is important to put
the threshold in context. From FY 2000
through FY 2008, USBP encounters
between POEs averaged approximately
3,000 per day, routinely including
monthly averages over 3,500 for a few
months most springs.252 The vast
majority (94 percent) of individuals
encountered by USBP during this period
were Mexican nationals, and very few of
those who were processed for expedited
removal claimed a fear of return or an
intent to seek asylum during that
process—fewer than one percent of all
CBP SWB encounters.253 As a result,
DHS and its predecessor agency were
able to swiftly remove or voluntarily
return the vast majority of those
250 See Section III.B.2 of this preamble. The
Departments acknowledge that, despite the
protections preserved by the rule and the available
exceptions, the provisions adopted by this rule will
result in the denial of some asylum claims that
otherwise may have been granted and, as with all
screening mechanisms, there is some risk that a
case that might otherwise warrant protection might
not proceed to a merits adjudication. However, in
light of the emergency circumstances facing the
Departments and addressed in the Proclamation
and this rule, the Departments believe these
measures are appropriate and necessary. And given
the Departments’ experience with asylum and
protection screenings and adjudications, the
Departments believe the rule’s provisions will
produce accurate outcomes, although the
Departments believe the rule continues to be
justified even if that expectation turns out to be
misplaced in close cases.
251 See CBP, Custody and Transfer Statistics (May
15, 2024), https://www.cbp.gov/newsroom/stats/
custody-and-transfer-statistics (detailing the
number of individuals processed for expedited
removal compared to another processing
disposition, including section 240 proceedings).
252 OHSS analysis of March 2024 OHSS Persist
Dataset. Total CBP encounters (at and between
POEs) also averaged approximately 3,000 per day
from FY 2004 to FY 2008; data on encounters at
POEs are not available prior to FY 2004.
253 OHSS analysis of March 2024 OHSS Persist
Dataset.
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encountered at the SWB using
comparatively few resources. See 88 FR
at 11708, 11716.
From FY 2009 through FY 2020,
USBP encounters between POEs
declined substantially from these
historical highs, averaging
approximately 1,200 per day, and daily
USBP encounters between the POEs
averaged less than 3,500 per day in all
but one month of that 12-year period—
May 2019 when USBP encounters
peaked at 4,300 during that year’s
surge.254 Within that 12-year stretch,
there were only four months (from
March through June 2019) with average
encounters between the POEs even
above 2,500 per day.255 In fact, for the
15 years prior to March 2021, DHS did
not experience a single month with
more than 5,000 total average daily
encounters.256 However, during that
time, the demographics of these
encounters changed significantly, with
nationals from the northern Central
American countries steadily increasing
as a proportion of encounters, becoming
a majority of individuals encountered
between POEs for the first time in
history in 2017—a trend that continued
until 2020. Starting in 2014, families
and UCs increased as a proportion of
USBP encounters as well, reaching a
high of 65 percent of encounters in
2019.257 Finally, and as described in
254 OHSS analysis of March 2024 OHSS Persist
Dataset. Total CBP encounters (at and between
POEs) averaged approximately 1,500 per day during
this period. For most of this period (from FY 2009
through FY 2018), the share of encounters
processed for expedited removal and the share of
those processed through expedited removal making
fear claims generally increased, so that during FY
2018, 41 percent of SWB encounters were processed
for expedited removal and 45 percent of those
processed for expedited removal made fear claims,
yielding an all-time high of 18 percent of all
encounters making fear claims. OHSS analysis of
March 2024 OHSS Persist Dataset. Data on the exact
number of SWB encounters processed for expedited
removal who made fear claims is not available for
years prior to FY 2013, but OHSS estimates that the
vast majority (84 percent) of all fear claims made
in prior years were made by SWB encounters. Even
if 100 percent of fear claims made before FY 2013
were made by SWB encounters, FY 2018 would
represent the all-time highest percentage of all
encounters making fear claims.
255 OHSS analysis of March 2024 OHSS Persist
Dataset. Total CBP encounters (at and between
POEs) also averaged approximately 2,700 per day
and 2,600 per day in February and July 2019,
respectively.
256 OHSS analysis of March 2024 OHSS Persist
Dataset.
257 OHSS analysis of March 2024 OHSS Persist
Dataset. Northern Central Americans accounted for
54 percent of encounters between POEs in 2017.
Northern Central Americans’ proportion of
encounters between POEs continued to increase
until it reached 71 percent of USBP encounters in
2019 but dropped at the onset of the pandemic, in
2020, to less than 26 percent. See also OHSS,
Immigration Enforcement and Legal Processes
Monthly Tables, https://www.dhs.gov/ohss/topics/
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greater detail in Section III.B.1 of this
preamble, from 2021 to 2023, there was
a historic surge in migration from other
countries in the Western Hemisphere
and from Eastern Hemisphere countries,
which, for the first time ever, accounted
for more than half of the encounters at
the border in 2023—with Mexican
nationals accounting for just 29 percent
of encounters, an all-time low.258
The change in the nationalities and
demographics being encountered at the
border has coincided with a dramatic
increase in the number of individuals
who claim fear when they are processed
at the border. Between 2005 and 2015,
the proportion of noncitizens
encountered by CBP and processed for
expedited removal who claimed fear
ranged from 5 percent at the low end to
26 percent at the high end.259 Driven by
the changing demographics at the
border, both the percentage of those
processed for expedited removal as well
as the percentage of those processed for
expedited removal who claimed a fear
of return or an intent to seek asylum
generally increased during this time
frame.260 This, in turn, has resulted in
a steep increase in the number of
credible fear interviews that USCIS is
required to conduct.261
In 2023, a record 59 percent of
encounters at and between POEs on the
SWB that were processed for expedited
removal resulted in fear claims. From
2016 to 2023, the percentage of SWB
encounters processed for expedited
removal who claimed a fear dipped
below 41 percent just once, in FY 2020,
the first year of the COVID–19
immigration/enforcement-and-legal-processesmonthly-tables (last updated May 10, 2024) (‘‘CBP
SW Border Encounters by Citizenship’’).
258 OHSS analysis of OIS Yearbook of
Immigration Statistics 1980–1999 and OHSS
analysis of March 2024 OHSS Persist Dataset. See
also OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by
Citizenship’’). Nationality breakouts of border
encounters are not available prior to 1980, but
Mexicans accounted for 97 percent of encounters
for all of 1980 through 1999 and never accounted
for less than 96 percent in any fiscal year during
that period.
259 OHSS analysis of March 2024 OHSS Persist
Dataset.
260 The percentage of those processed via
expedited removal fell again in 2019 due to
resource constraints. OHSS analysis of March 2024
OHSS Persist Dataset.
261 The share of noncitizens encountered by CBP
at and between POEs who were processed through
expedited removal increased from 6 percent in FY
2005 to between 39 and 47 percent each year from
FY 2012 to FY 2018, but then dropped in FY 2019
because DHS was unable to scale up expedited
removal processing in proportion to the substantial
increase in USBP encounters. OHSS analysis of
March 2024 OHSS Persist Dataset.
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pandemic.262 The global COVID–19
pandemic briefly interrupted this trend,
which has continued after the lifting of
the Title 42 public health Order in May
2023. Between May 12, 2023, and the
end of March 2024, DHS processed a
record number of individuals through
expedited removal as it sought to
maximize the consequences at the
border, and 54 percent of noncitizens
processed for expedited removal
indicated a fear of persecution or intent
to seek asylum.263 As part of DHS’s
comprehensive effort to impose
strengthened consequences at the border
after the lifting of the Title 42 public
health Order, USCIS reassigned a
significant number of AOs to conduct
credible fear interviews, which resulted
in USCIS completing a record number of
such interviews. In fact, USCIS
conducted more interviews from SWB
encounters during the span of ten and
a half months after the lifting of the
Title 42 public health Order than in any
full fiscal year prior to 2023, and twice
as many as the annual average from FY
2010 to FY 2019.264
As DHS transitioned from the
enforcement of the Title 42 public
health Order at the border to full use of
its title 8 authorities after May 11, 2023,
DHS’s capacity constraints—and the
impact of those constraints on DHS’s
ability to impose consequences on
noncitizens who cross unlawfully or
without authorization—have come
increasingly into focus. Given these real
resource constraints, DHS has had to
make hard choices about whom it can
prioritize for detention or refer into
expedited removal.265 As a result of a
lack of sufficient holding spaces,
detention beds, and AOs, DHS has only
been able to refer certain noncitizens
into expedited removal—which, as
detailed above, is the most efficient tool
available under title 8 authorities to
impose swift consequences for irregular
migration. This means that DHS cannot
impose consequences swiftly or
predictably on most people encountered
at the border, feeding the narrative
pushed by smugglers that irregular
262 OHSS analysis of March 2024 OHSS Persist
Dataset.
263 OHSS analysis of data downloaded from CBP
UIP on April 2, 2024.
264 OHSS analysis of data downloaded from CBP
UIP on April 2, 2024. Data on the exact number of
SWB encounters processed for expedited removal
who made fear claims is only available since FY
2013; for the years prior to FY 2013 there was no
full fiscal year in which the total number of USCIS
fear claims was equal to the number of fear claims
completed for SWB encounters processed for
expedited removal between May 12, 2023, and
March 31, 2024.
265 ICE, Fiscal Year 2023 ICE Annual Report 17–
18 (Dec. 29, 2023), https://www.ice.gov/doclib/eoy/
iceAnnualReportFY2023.pdf.
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migrants will be able to stay in the
United States.266
The expedited removal process
requires the outlay of significant
Government resources. When a
noncitizen in expedited removal
indicates an intention to seek asylum or
a fear of persecution, rather than being
swiftly removed, they are referred to an
AO for a credible fear interview and
may seek review of any negative
screening by an IJ—all of which takes
time and Government resources. As
described in further detail above, DHS
has made significant process
enhancements to reduce the overall time
it takes for individuals to proceed
through this process. However, the
availability of sufficient numbers of AOs
to conduct credible fear interviews is
critical to DHS’s ability to quickly
adjudicate fear claims and deliver
consequences to those who do not have
a credible fear of persecution or torture.
As described above, Congress has
failed to provide the additional
resources requested for USCIS that
would have increased the number of
AOs that are available to conduct
credible fear interviews for SWB cases.
This reality, combined with increases in
encounters at the border, and increases
in the proportion of noncitizens
processed for expedited removal who
claim fear of return, means that DHS
cannot impose consequences swiftly or
predictably on most people whom DHS
encounters. Due to its resource
constraints, the majority of individuals
USBP encountered since May 11, 2023,
were ultimately placed in section 240
removal proceedings,267 undercutting
the effectiveness of the previous
measures that have been implemented.
This reality contributes to the vicious
cycle described above in which
increasing numbers of releases lead to
increased migration, fueled by the
narrative, pushed by smugglers, that
migrants who are encountered at the
border will be allowed to remain and
work in the United States for long
periods of time.
As a result of the changes to the
nationalities and demographics being
encountered at the border, and the
associated increase in the rate of
claiming fear by individuals
encountered, the amount of resources
required to deliver consequences
quickly through referrals into expedited
removal for the vast majority of
individuals who claimed a fear in 2000
(when DHS’s predecessor agency
averaged 3,000 to 7,000 daily
266 March
267 OHSS
2024 OHSS Persist Dataset.
analysis of March 2024 OHSS Persist
encounters between POEs) or in 2010
(when DHS averaged 1,000 to 2,000
daily encounters between POEs) was far
lower than the amount of resources
required to manage the same number of
encounters today.268
Of course, as noted above, DHS has
been experiencing much higher
encounter levels,269 and simply does
not have the resources it would need to
place into expedited removal the
majority of those encountered by USBP
who are amenable to such processing.
Similarly, DHS has never had the
resources to detain every individual
encountered at the border through the
pendency of their immigration removal
proceedings—even during FY 2009
through FY 2020, when average
encounters between POEs on the SWB
were 1,200 a day. Encounters between
POEs on the SWB are now more than
triple that level, resulting in
overcrowded USBP facilities, an
immigration detention system that has
regularly been at capacity, and an
asylum system that has been crippled by
enormous backlogs and cannot deliver
timely decisions.270 When DHS does not
268 March 2024 OHSS Persist Dataset. The most
notable change has been the rising share of nonMexican nationals as a share of encounters, with
Mexican nationals accounting for 98 percent of
USBP encounters in FY 2000 and 89 percent in
2010. OHSS Persist Database March 31, 2024; see
also OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by Citizenship’’
and ‘‘CBP SW Border Encounters by Family
Status’’).
269 Even as compared to the 2,000 to 7,000 daily
encounters between POEs in 2000, the
corresponding numbers in the recent past have been
higher. In FY 2023, there were 3,300 to 7,300 such
daily encounters, and from October 2023 through
March 2024, the corresponding numbers are 4,000
to 8,300. March 2024 OHSS Persist Dataset.
270 See OHSS analysis of data downloaded from
UIP on April 2, 2024. CBP completed
approximately 1.7 million total encounters at the
SWB in FY 2021, 2.4 million in FY 2022, and 2.5
million in FY 2023, with each year exceeding the
previous record high of 1.6 million in FY 2000. See
OHSS analysis of March 2024 OHSS Persist Dataset.
In December 2023, CBP also completed a singlemonth record of 302,000 encounters, almost one
and a half times as many as the highest monthly
number recorded prior to 2021 (209,000 in March
2000) based on records available in the OHSS
Persist Dataset for FY 2000 to the present. Although
some of the increase in encounters is explained by
higher-than-normal numbers of repeat encounters of
the same individual during the period in which
noncitizens were expelled pursuant to the CDC’s
Title 42 public health Order, OHSS analysis of the
March 2024 OHSS Persist Dataset indicates that
unique encounters were also at record high levels.
See also OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/
ohss/topics/immigration/enforcement-and-legalprocesses-monthly-tables (last updated May 10,
2024) (‘‘CBP SW Border Encounters by Citizenship’’
and ‘‘CBP SW Border Encounters by Family
Status’’).
Dataset.
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have the capacity to process individuals
through expedited removal or detain
noncitizens to await their proceedings,
releasing individuals into the interior of
the United States is generally the only
option that is left.271 The need to release
individuals at the border has increased
over time and peaked during surges.
By contrast, when encounters
(excluding UCs from non-contiguous
countries and noncitizens determined to
be inadmissible at a SWB POE) are
below 1,500 per day, DHS will be able
to refer most individuals it encounters
into expedited removal and deliver a
swift consequence to the majority of
individuals it encounters who do not
establish a legal basis to remain in the
United States—in the form of a return or
removal. Given limited congressional
appropriations and agency funding
levels, DHS has a finite capacity to
deliver such consequences at the border,
which is reflected in the number of
individuals that can be processed
through expedited removal on any given
day. As detailed above, DHS over the
past year has significantly streamlined
the expedited removal process and has
set records in terms of individuals
placed in expedited removal by CBP at
the SWB and credible fear interviews
conducted by AOs. Given current
resources, however, and in the absence
of congressional action, there is a limit
CBP held an average of 21,863 noncitizens in
custody each day during December 2023, averaging
104 percent of CBP’s daily custody capacity
(21,042) roughly each day for the entire month.
OHSS analysis of data downloaded from UIP on
February 14, 2024.
EOIR had a backlog of over 2.7 million cases that
were pending in the immigration courts at the end
of the first quarter of FY 2024. See EOIR,
Adjudication Statistics: Pending Cases, New Cases,
and Total Completions (Jan. 18, 2024), https://
www.justice.gov/eoir/media/1344791/dl?inline; see
also Ariel G. Ruiz-Soto et al., Shifting Realities at
the U.S.-Mexico Border: Immigration Enforcement
and Control in a Fast-Evolving Landscape,
Migration Pol’y Inst., at 1 (Jan. 2024), https://
www.migrationpolicy.org/sites/default/files/
publications/mpi-contemporary-border-policy2024_final.pdf (‘‘Insufficiently equipped to respond
effectively to these and likely future changes, U.S.
immigration agencies must perpetually react and
shift operations according to their strained capacity
and daily changes in migrant arrivals.’’); UNHCR,
Global Trends: Forced Displacement in 2022, at 2,
8–9, 12 (June 14, 2023), https://www.unhcr.org/
global-trends-report-2022 (showing rapid global
increases in forcibly displaced persons and other
persons in need of international protection in 2021
and 2022, and projecting significant future
increases).
271 Consistent with the Departments’ conclusion
in the Circumvention of Lawful Pathways rule, the
Departments believe the emergency border
circumstances described in the Proclamation and
this rule cannot be addressed by relying on the
programmatic use of its contiguous territory return
authority at section 235(b)(2)(C) of the INA, 8 U.S.C.
1225(b)(2)(C), due to resource constraints and
foreign affairs considerations. See 88 FR at 31370;
88 FR at 11731.
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on how many people can be put through
the process—and that limit directly
informs the 1,500 threshold.
From May 12, 2023, through March
2024, USBP has referred a daily average
of over 900 individuals encountered at
the SWB into the expedited removal
process.272 During the same period,
about 17 percent of individuals
encountered between POEs voluntarily
returned to Mexico, had their removal
orders reinstated at the border, or were
subject to administrative removal
pursuant to INA 238(b), 8 U.S.C.
1228(b).273 This means that, at the
1,500-encounter level and assuming a
similar level of voluntary repatriations
and reinstatements, DHS would be able
to refer for expedited removal more than
70 percent of the individuals who are
not quickly repatriated.274 As discussed
previously, of those individuals
encountered by USBP and placed into
expedited removal from May 12, 2023 to
March 31, 2024, 65 percent have been
quickly removable—either because they
do not claim a fear, or because they are
found not to have a credible fear and are
ordered removed.275 This means that, at
1,500 daily encounters between POEs,
and assuming similar fear claim rates,
DHS would be able to quickly remove
the majority of the people it processes
at the border on any given day who have
no legal basis to remain in the United
States.276
272 OHSS analysis of data downloaded from UIP
on April 2, 2024.
273 Based on comprehensive CBP processing
dispositions for single adults, family units, and UCs
from contiguous countries encountered May 12,
2023 to March 31, 2024; data downloaded from UIP
on April 2, 2024.
274 At 1,500 single adult, family unit, and UC
from contiguous countries encounters between
POEs per day and with 17 percent of such
encounters voluntarily returning to Mexico or
subject to reinstatement of a removal order or
administrative removal, 1,250 encounters would
not be subject to rapid repatriation, including 1,240
who would potentially be amenable to expedited
removal. Further, assuming that CBP could process
900 people for expedited removal, the agency
would have the ability to place 72 percent of people
not subject to rapid repatriation and 73 percent of
potentially amenable single adults and family units
into expedited removal. OHSS analysis of data
downloaded from UIP on April 2, 2024. Applying
the rule even more broadly based on a lower
threshold would also raise countervailing
considerations, see supra note 250, and so the
Departments have struck the balance reflected in
the rule.
275 OHSS analysis of data downloaded from UIP
on April 2, 2024.
276 At 1,500 encounters of single adults, family
units, and UCs from contiguous countries per day
and assuming similar shares of encounters accept
voluntary return or are subject to reinstatement of
removal or administrative removal, about 250
people would be repatriated with one of these
dispositions. Further, assuming 900 encounters
would be processed for expedited removal, and that
65 percent of expedited removal encounters would
be quickly removable, about 590 would be
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Simply put, at 1,500 daily encounters,
DHS would be able to swiftly deliver a
consequence to enough individuals to
meaningfully impact migratory
decisions and deter unlawful entries.
DHS would also be able to minimize
releases of those who are amenable to
expedited removal or transfer them to
ICE custody pending immigration
proceedings. By contrast, above 2,500
encounters—the level at which the
Proclamation and the rule would again
apply—DHS’s ability to impose such
consequences is significantly lower and
decreases rapidly as encounters increase
beyond that level. At the 2,500encounter level and assuming a similar
level of voluntary repatriations and
reinstatements described above, DHS
would be able to place just 43 percent
of the individuals who are not quickly
repatriated into expedited removal—
significantly less than the 70 percent
under the 1,500-encounter threshold.277
This would, in turn, lead to a significant
degradation of DHS’s ability to impose
consequences at the border for
individuals who do not establish a legal
basis to remain in the United States,
with DHS only able to quickly remove
or return substantially less than half of
the individuals it encounters.278
Moreover, the percentage of people who
can be referred to expedited removal
and ultimately be quickly removed if
they do not establish a legal basis to
remain decreases rapidly as encounters
increase beyond 2,500 given the
baseline constraints outlined above.
This difficulty in imposing swift
consequences on individuals without a
legal basis to remain in the United
States during periods of elevated
repatriated pursuant to an expedited removal order
or withdrawal, yielding a total of about 830
repatriations (sums do not add due to rounding), or
56 percent of encounters.
277 At 2,500 single adult, family unit, and UC
from contiguous countries encounters between
POEs per day and with 17 percent of such
encounters voluntarily returning to Mexico or
subject to reinstatement of a removal order or
administrative removal, 2,080 encounters would
not be subject to rapid repatriation. Further,
assuming that CBP could process 900 people for
expedited removal, the agency would have the
ability to place 43 percent of people not subject to
rapid repatriation into expedited removal. OHSS
analysis of data downloaded from UIP on April 2,
2024.
278 At 2,500 encounters of single adults, family
units, and UCs from contiguous countries per day
and assuming similar shares of encounters accept
voluntary return or are subject to reinstatement of
removal or administrative removal, about 420
people would be repatriated with one of these
dispositions. Further, assuming 900 encounters
would be processed for expedited removal, and that
65 percent of expedited removal encounters would
be quickly removable, about 590 would be
repatriated pursuant to an expedited removal order
or withdrawal, yielding a total of about 1,010
repatriations (sums do not add due to rounding), or
40 percent of encounters.
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encounters is borne out by both recent
experience, which is detailed in
Sections III.B.1 and 2 of this preamble,
and by historical data. DHS historical
data also clearly show the dichotomy
between the outcomes for individuals
processed at the border at the 1,500- and
2,500-encounter levels. DHS data show
that releases from CBP custody as a
share of encounters have generally been
highest during periods of sustained
high-encounter levels, and lowest when
encounters have been at 1,500 or below.
For example, from FY 2013 through FY
2019, months with average daily USBP
encounters of fewer than 1,500 per day
resulted in a minimal level of releases
due to capacity constraints at the
border.279 During the 2013 to 2019 prepandemic period, USBP encounters
only exceeded 1,500 per day for a
sustained period from October 2018 to
August 2019. During that 7-year stretch,
months in which daily encounters were
between 1,500 and 2,500 resulted in an
average of 210 individuals released each
day, while months in which daily
encounters exceeded 2,500 resulted in
approximately 1,300 releases each day
with CBP releasing as many as 46
percent of the individuals it processed
pending section 240 removal
proceedings.280
It is important to note, however, the
demographics and nationalities
encountered at the border significantly
impact DHS’s ability to impose timely
consequences and the number of people
who are ultimately released by CBP
pending section 240 removal
proceedings. This is especially true for
periods when CBP has encountered
more UCs, family units, or individuals
from countries to which it is difficult to
effectuate removals. During the 2013 to
2019 time frame—which forms the basis
for the analysis in the preceding
paragraph—the vast majority of
encounters at the border were from
Mexico, El Salvador, Guatemala, and
Honduras—countries that are
comparatively easy to return people
to.281 Today, a much higher proportion
of SWB encounters are from other
countries that are comparatively much
more difficult to return people to,
including record numbers from the
Eastern Hemisphere.282 At the same
time, the proportion of encounters
279 For FY 2013 to FY 2019, in months with fewer
than 1,500 encounters between POEs, USBP
released an average of 11 encounters per day. OHSS
analysis of March 2024 OHSS Persist Dataset.
280 OHSS analysis of March 2024 OHSS Persist
Dataset.
281 OHSS analysis of March 2024 OHSS Persist
Dataset.
282 OHSS analysis of March 2024 OHSS Persist
Dataset.
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involving family units and UCs,
although still high, is lower today than
it was during periods of high numbers
of encounters and releases in FY
2019.283 Although shifting
demographics affect the Departments’
capacity to deliver timely decisions and
timely consequences at varying levels of
encounters, it remains clear that with
the challenging demographics being
encountered today, DHS would have the
ability to deliver a timely consequence
to the majority of people it processes at
the border when encounters are below
1,500—supporting the decision to
suspend the application of the rule
when DHS reaches that level of
encounters over a 7-day average.
Likewise, as discussed above, the
Departments have concluded that it is
reasonable to apply the rule when
encounter levels rise above a 7-day
average of 2,500 due to the sharp
decrease in their ability to swiftly
impose meaningful consequences at the
border once encounters exceed that
level.
Lastly, it is important to note that
using a single threshold—for example,
1,500 encounters—to activate or
deactivate the measures in this rule
would pose significant challenges and
not be operationally viable. Having a
single threshold would likely lead to
scenarios where the rule would be
regularly activated and deactivated as
the 7-day average rose above and below
1,500, which would have significant
operational impacts for CBP, ICE, and
USCIS, and be confusing for government
personnel, migrants, and other key
stakeholders. For example, the
Departments will need to notify and
provide guidance to their personnel to
apply the provisions of this rule in
connection with each activation and
deactivation. These actions represent a
burden on staff time and resources that
would have negative operational
impacts if activation or deactivation
happened regularly. CBP and ICE will
also face scenarios in which they would
have many people in their custody some
of whom would be subject to and others
of whom would not be subject to the
provisions of this rule, and CBP and ICE
will need to keep track of which
individuals needed to be processed
under which procedures—something
that could become extraordinarily
complex and unwieldy if the rule were
to be activated and deactivated
regularly. Legal service providers and
migrants would similarly face a great
283 UCs and family units accounted for 65 percent
of USBP encounters in FY 2019, compared to 45
percent in FY 2024 through March. OHSS analysis
of March 2024 OHSS Persist Dataset.
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48753
deal of confusion about when the
provisions of this rule were in effect
based upon a single threshold of 1,500
encounters to activate or deactivate the
measures in this rule. The burden of
tracking, identifying, and applying
different standards that change back and
forth over a matter of days is
significantly more complex for USCIS
personnel as they consider protection
claims.
For all of these reasons, it is important
to ensure that there is a clear division
between the levels at which the rule is
deactivated and when it is activated.
And to ensure that stakeholders are
aware of when the rule is deactivated
and activated, DHS will notify the
public about Secretarial determinations
of the encounter levels described in
sections 2(a) and 2(b) of the
Proclamation. As noted above, the
2,500-encounter level is a good proxy
for when DHS’s ability to quickly
impose consequences at the border for
individuals who do not establish a legal
basis to remain is becoming so degraded
that it is likely to further incentivize
additional unlawful crossings. It also
has the benefit of increasing the time
that would elapse between deactivations
and activations, allowing DHS to ensure
that its personnel are not having to
constantly switch back and forth
between different procedures.284
The exclusion of those determined to
be inadmissible at a SWB POE from the
1,500- and 2,500-encounter thresholds
is also reasonable in light of recent
policy decisions, processing experience,
and operational needs. Since May 12,
2023, SWB daily POE encounters have
averaged 1,650—largely because DHS
has been incentivizing individuals to
present at POEs in a safe, orderly
manner.285 This number has stayed
relatively constant compared to the
number of encounters between POEs,
which have varied widely, from a low
of 2,554 on May 21, 2023, to a high of
10,822 on December 18, 2023.286 The
predictability in the number of POE
encounters, paired with the processing
efficiencies gained by the widespread
use of the CBP One app, improves CBP’s
284 The Departments recognize that, due to the
rule’s approach, at a given encounter level between
1,500 and 2,500 encounters per day—such as 2,000
encounters a day—whether the rule applies will be
path dependent. If encounters have been above
2,500, the rule will apply. If encounters have been
below 1,500, the rule will not apply. This is a
necessary consequence of providing the clear
division that the Departments have deemed
necessary, and the Departments assess that adopting
this approach best balances the relevant
considerations.
285 OHSS analysis of March 2024 OHSS Persist
Dataset.
286 OHSS analysis of March 2024 OHSS Persist
Dataset.
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ability to manage encounters at POEs.
The vast majority of noncitizens who
present at a SWB POE have done so
after having registered with the CBP
One app.287 Because such individuals
have registered with the CBP One app,
CBP can process these individuals more
efficiently and in a more orderly way
than individuals encountered between
POEs.288 This is a critical element of our
strategy to encourage the use of safe,
orderly, and lawful pathways, as
described above, to incentivize
noncitizens to seek out lawful pathways
instead of attempting to cross into the
United States irregularly. CBP officers
will determine the most appropriate
processing disposition on a case-by-case
basis, although DHS expects to generally
issue such individuals an NTA for
removal proceedings under section 240
of the INA.
In short, DHS has assessed that the
emergency border circumstances that
are described by the Proclamation and
this rule—and that the President has
concluded warrant the step of
suspending and limiting entry—
reasonably capture the capacity of the
border security and immigration
systems to deliver consequences in a
timely manner to individuals who cross
unlawfully or without authorization.
Thus, the Departments have determined
to tie the application of the rule’s
provisions to the date that the
Proclamation takes effect, and to
include a mechanism to temporarily
halt the application of the rule’s
provisions when encounters between
POEs reach 1,500 and to restart the
application of its provisions if they once
again rise above 2,500. Because the
Departments intend for certain
provisions of this rule to remain in
effect in the event a court enjoins or
otherwise renders inoperable the
Proclamation, the Departments intend
for the Secretary of Homeland Security
to continue to make the factual
determinations regarding the 1,500 and
2,500 thresholds described in this rule
and in sections 2(a) and 2(b) of the
Proclamation, even if the Proclamation
is enjoined, in order to provide
continuity during emergency border
circumstances. Lastly, the Proclamation
may be revoked by the President upon
a determination that it is no longer
needed.289
287 OHSS analysis of March 2024 OHSS Persist
Dataset.
288 See, e.g., 88 FR at 11719.
289 The Departments have not sought to apply the
rule even after any revocation of the Proclamation
by the President, because the Departments expect
that any such revocation would only follow
consultation with the Departments regarding the
policy and operational implications of such an
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C. Section-by-Section Description of
Amendments
1. 8 CFR 208.13 and 1208.13
DHS and DOJ are adding a paragraph
(g) to the end of 8 CFR 208.13 and
1208.13, respectively, Establishing
asylum eligibility, to explain when a
noncitizen is potentially subject to this
IFR’s limitation on asylum eligibility
and credible fear screening procedures
and how this limitation and its
associated procedures interact with the
Lawful Pathways condition referenced
in paragraph (f) of 8 CFR 208.13 and
1208.13. Paragraph (g) refers the reader
to the new regulatory provisions at 8
CFR 208.35 and 1208.35 that establish
the limitation on eligibility for asylum
where a noncitizen entered the United
States across the southern border during
emergency border circumstances.
2. 8 CFR 208.35
DHS is adding to 8 CFR part 208,
Procedures for Asylum and Withholding
of Removal, a new subpart D, Eligibility
for Aliens Who Enter the United States
During Emergency Border
Circumstances. Within subpart D, DHS
is adding a new § 208.35, Limitation on
asylum eligibility and credible fear
procedures for those who enter the
United States during emergency border
circumstances. This section sets forth a
new limitation on asylum eligibility and
screening procedures related to the
application of such limitation in
expedited removal proceedings and the
conduct of credible fear screenings
during the emergency border
circumstances. This provision applies
notwithstanding any contrary provision
of part 208.
Section 208.35 consists of the
following provisions:
Paragraph (a) sets forth the limitation
on asylum eligibility. Under the rule, a
noncitizen is ineligible for asylum if the
noncitizen is described in § 208.13(g)
and not described in section 3(b) of the
Proclamation. This approach is
consistent with the general policy of the
Proclamation and rule and provides
important exceptions that continue to
incentivize the use of safe, orderly, and
lawful pathways, such as for those who
arrive in the United States at a
southwest land border POE pursuant to
a process approved by the Secretary of
Homeland Security.290
action. Moreover, a decision by the President would
reflect important changed circumstances, and the
Departments would want to take into account those
changed circumstances in assessing the appropriate
policy as to the issues covered by this rule.
290 See DHS, Fact Sheet: Department of State and
Department of Homeland Security Announce
Additional Sweeping Measures To Humanely
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Paragraph (a)(2) contains provisions
regarding an exception to the limitation
on asylum eligibility that aligns with the
means for rebutting the presumption of
asylum ineligibility in the
Circumvention of Lawful Pathways rule.
See 8 CFR 208.33(a)(3)(i),
1208.33(a)(3)(i). The exception applies if
the noncitizen, or the noncitizen’s
family member as described in
§ 208.30(c) with whom the noncitizen is
traveling, demonstrates by a
preponderance of the evidence
exceptionally compelling
circumstances, including that, at the
time of entry, the noncitizen or a
member of the noncitizen’s family as
described in § 208.30(c) with whom the
noncitizen is traveling:
• Faced an acute medical emergency;
• Faced an imminent and extreme
threat to life or safety, such as an
imminent threat of rape, kidnapping,
torture, or murder; or
• Satisfied the definition of ‘‘victim of
a severe form of trafficking in persons’’
provided in 8 CFR 214.11.
Paragraph (a)(2)(ii) makes clear that
where a noncitizen establishes one of
the above, they shall necessarily have
established exceptionally compelling
circumstances. This exception for
exceptionally compelling circumstances
limits the potential adverse effects of the
limitation on asylum eligibility on
certain particularly vulnerable
populations, and family members with
whom they are traveling, without
undermining the key policy imperative
to disincentivize irregular migration
during a time when encounters are
above certain benchmarks.291 Paragraph
(a)(2)(iii) deems those who have
established exceptionally compelling
circumstances for purposes of this
asylum limitation or who are described
in the provisions of the Proclamation as
being excepted from its suspension and
limitation on entry as having
established exceptionally compelling
circumstances for purposes of the
Lawful Pathways condition. This
provision is intended to simplify
administration of this asylum limitation
while it and the Circumvention of
Manage Border through Deterrence, Enforcement,
and Diplomacy (May 10, 2023), https://
www.dhs.gov/news/2023/05/10/fact-sheetadditional-sweeping-measures-humanely-manageborder.
291 See, e.g., 88 FR at 31325 (‘‘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.’’).
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Lawful Pathways rule are both
operative.
Paragraph (b) prescribes procedures
for considering the limitation on asylum
eligibility during the credible fear
screening process and for applying the
‘‘reasonable probability’’ standard in the
event the Proclamation or the limitation
on asylum eligibility are rendered
inoperable by court order. Under
paragraph (b)(1), the AO will first
determine whether there is a significant
possibility that the noncitizen is eligible
for asylum in light of the limitation on
asylum eligibility in paragraph (a). The
paragraph sets forth three possible
procedural scenarios depending on the
AO’s findings. First, where the AO
determines that the noncitizen is subject
to the limitation on asylum eligibility
under paragraph (a)—including that
there is not a significant possibility, see
INA 235(b)(1)(B)(iii), 8 U.S.C.
1225(b)(1)(B)(iii),292 that the noncitizen
could establish an exception under
section 3(b) of the Proclamation—and
that there is not a significant possibility
that the noncitizen could establish an
exception to the limitation under
paragraph (a)(2), the AO will enter a
negative credible fear determination
with respect to the noncitizen’s asylum
claim and continue to consider the
noncitizen for potential eligibility for
statutory withholding of removal and
CAT protection under the procedures in
paragraph (b)(2), as described below.
See 8 CFR 208.35(b)(1)(i). Second,
where the AO determines that the
noncitizen is not subject to this IFR’s
limitation on asylum eligibility because
there is a significant possibility that the
noncitizen could establish that they are
not described in § 208.13(g), the AO will
follow the procedures for credible fear
interviews relating to the Lawful
Pathways condition in § 208.33(b). See
id. 208.35(b)(1)(ii). This provides that
those noncitizens who are not subject to
the Proclamation because they did not
enter during emergency border
circumstances are processed under the
provisions governing the Lawful
Pathways condition—and under
§ 208.33(b)(1)(ii), if the noncitizen is not
subject to that condition, they will be
screened for a significant possibility of
292 In the Circumvention of Lawful Pathways rule,
the Departments described how AOs would apply
the limitation on asylum eligibility at issue there
consistent with the statutory ‘‘significant
possibility’’ standard. See 88 FR at 31380. That
discussion in the Circumvention of Lawful
Pathways rule also applies to AOs’ application of
the limitation on asylum eligibility created by this
IFR. As explained above in Section III.B.3.a of this
preamble, AOs will rarely have grounds to reach a
different result from the CBP immigration officers
as to the application of the Proclamation or its
exceptions.
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eligibility for statutory withholding of
removal or CAT protection consistent
with § 208.30.293 Third, where the AO
determines that the noncitizen is not
subject to this IFR’s limitation on
asylum eligibility because there is a
significant possibility that the
noncitizen could establish either that
they are described in section 3(b) of the
Proclamation or exceptionally
compelling circumstances exist under
paragraph (a)(2), the AO will conduct
the screening consistent with 8 CFR
208.30. See id. 208.35(b)(1)(iii).
If the AO determines that the
noncitizen is subject to paragraph (a)
and cannot establish a significant
possibility that they will be able to
establish exceptionally compelling
circumstances by a preponderance of
the evidence per paragraph (a)(2), the
AO will then assess whether the
noncitizen has established a reasonable
probability of persecution (meaning a
reasonable probability of being
persecuted because of their race,
religion, nationality, membership in a
particular social group, or political
opinion) or torture, with respect to the
designated country or countries of
removal identified pursuant to section
241(b) of the INA, 8 U.S.C. 1231(b). See
8 CFR 208.35(b)(2)(i). As noted above,
for purposes of this section, reasonable
probability means substantially more
than a reasonable possibility, but
somewhat less than more likely than
not, that the noncitizen would be
persecuted because of his or her race,
religion, nationality, membership in a
particular social group, or political
opinion, or tortured, with respect to the
designated country or countries of
removal. See id.
If the noncitizen establishes a
reasonable probability of persecution or
torture with respect to the designated
country or countries of removal, DHS
will issue a positive credible fear
determination and follow the
procedures in § 208.30(f). See id.
208.35(b)(2)(ii). Under § 208.30(f),
USCIS may issue an NTA for removal
proceedings under section 240 of the
INA, or, in its discretion, retain the
application for an asylum merits
interview pursuant to § 208.2(a)(1)(ii).
Under the regulations governing the
asylum merits interview process, where
USCIS exercises its discretion to retain
jurisdiction over an application for
asylum of a noncitizen found to have a
credible fear of persecution or torture
293 In such cases, consistent with the
Circumvention of Lawful Pathways rule, DHS
would also have discretion to refer the noncitizen
to EOIR for section 240 removal proceedings. See
Matter of E–R–M– & L–R–M–, 25 I&N Dec. 520 (BIA
2011); see also 88 FR at 31348.
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pursuant to § 208.30(f), the written
record of the positive credible fear
determination is treated as the asylum
application. 8 CFR 208.3(a)(2). Under
this IFR, however, noncitizens who are
subject to the limitation on asylum
eligibility under 8 CFR 208.35(a), and
fail to show a significant possibility of
being able to establish an exception by
a preponderance of the evidence at the
credible fear interview, will receive a
negative credible fear determination
with respect to their application for
asylum, pursuant to § 208.35(b)(1)(i),
but could go on to receive a positive
credible fear determination with respect
to a potential claim for statutory
withholding of removal or protection
under the CAT at the reasonable
probability of persecution or torture
standard. See id. 208.35(b)(2).
In the event that USCIS were to
exercise its discretion to place such a
case into the asylum merits interview
process, the credible fear record in that
case would have found the applicant
unable to establish eligibility for asylum
under § 208.35(a) and the positive
determination would be based only on
a potential statutory withholding of
removal or protection under the CAT
claim. USCIS may thus need
supplementary information to constitute
an application for asylum, as the asylum
claim may not have been fully explored
in the credible fear record given that the
AO determined the applicant would
have been ineligible for asylum based
on the rule’s limitation on asylum
eligibility. Therefore, § 208.35(b)(2)(ii)
allows USCIS to require a noncitizen
who received a negative credible fear
determination with respect to their
application for asylum pursuant to
§ 208.35(b)(1)(i), but whose application
is nonetheless retained by USCIS for
asylum merits interview proceedings, to
submit an asylum application to USCIS
within 30 days of service of the positive
credible fear determination, to ensure
that there is a record of their potential
asylum claim to serve as a substantive
asylum application. For purposes of the
filing and receipt date, the date of
service of the positive credible fear
determination will continue to serve as
the date of filing pursuant to
§ 208.3(a)(2); however, if USCIS requires
the submission of an asylum
application, the timelines laid out in
§ 208.9(a)(1) and § 208.9(e)(2) may be
delayed up to 15 days, considering the
need to allow extra time for the
submission of an asylum application to
USCIS following service of the positive
credible fear determination. See id.
208.35(b)(2)(ii). Under this IFR, if the
applicant does not submit the
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application within the time period
required, USCIS will refer the
noncitizen to section 240 removal
proceedings before an IJ. USCIS does
not foresee that it would be a prudent
use of resources to place such cases into
the asylum merits interview process,
considering that USCIS has a finite
number of AOs, and it is more efficient
at present to assign work in a manner
that maximizes the number of credible
fear interviews USCIS can conduct at
the border. Nevertheless, the IFR
preserves the flexibility for USCIS to
exercise its discretion to potentially
place such cases into the asylum merits
interview process (albeit with the
potential addition of a supplementary
application for asylum) should available
resources and circumstances ever be
such that it would be prudent to place
such cases into the asylum merits
interview process.
If the noncitizen fails to establish a
reasonable probability of persecution or
torture with respect to all designated
countries of removal, the AO will
provide the noncitizen with a written
notice of decision and inquire whether
the noncitizen wishes to have an IJ
review the negative credible fear
determination. See id. 208.35(b)(2)(iii).
If the noncitizen indicates on the Record
of Negative Fear that they request IJ
review of the adverse finding, see id.
208.35(b)(2)(iv), the AO will serve the
noncitizen with a Notice of Referral to
Immigration Judge, see id.
208.35(b)(2)(v). See 88 FR at 11747; 88
FR at 31423. The record of
determination, including copies of the
Notice of Referral to Immigration Judge,
the AO’s notes, the summary of the
material facts, and other materials upon
which the AO based their determination
regarding the applicability of the
condition on asylum eligibility (which,
in cases where the limitation on asylum
eligibility created by this IFR applies,
includes materials showing the relevant
known entry date), will be provided to
the IJ with the negative determination.
See 8 CFR 208.35(b)(2)(v). The IJ would
then review the case consistent with
§ 1208.35, described below.
If, following IJ review, the IJ makes a
positive credible fear determination
under § 1208.35(b)(2)(iii) or
§ 1208.35(b)(4), the case will proceed
under § 1208.30(g)(2)(iv)(B). See id.
208.35(b)(2)(v)(A). The IJ may vacate the
Notice and Order of Expedited Removal
and refer the case back to DHS for
further proceedings consistent with 8
CFR 1208.2(a)(1)(ii). See id.
1208.30(g)(2)(iv)(B). Alternatively, DHS
may commence section 240 removal
proceedings, during which time the
noncitizen may file an application for
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asylum, statutory withholding of
removal, and CAT protection in
accordance with § 1208.4(b)(3)(i). See
id. 1208.30(g)(2)(iv)(B).
If the IJ makes a negative credible fear
determination, however, the case will be
returned to DHS for removal of the
noncitizen. See id. 208.35(b)(2)(v)(B).
Consistent with the purpose of the
expedited removal process and this IFR,
there would be no appeal from the IJ’s
decision and DHS would not accept
requests for reconsideration. See id.
USCIS may, however, in its sole
discretion, reconsider a negative
determination. See id.; 88 FR at 11747;
88 FR at 31418–19.
Paragraph (b)(3) applies in the event
that the limitation on asylum eligibility
in paragraph (a) is rendered inoperative
by court order. In such circumstance,
those who enter during emergency
border circumstances and who are
found not to have a significant
possibility of eligibility for asylum
because of the Lawful Pathways
condition will be screened for eligibility
for statutory withholding of removal
and CAT protection under the
‘‘reasonable probability’’ screening
standard. This will ensure continued
applicability of that standard during
emergency border circumstances, even
absent the rule’s limitation on asylum
eligibility. The Departments
acknowledge that under this approach,
not all who would have been subject to
the higher screening standard if the
limitation remained in force would be
subject to it in the event of an
injunction—i.e., those who do not travel
through a country other than their
country of citizenship, nationality, or, if
stateless, last habitual residence; those
excepted from the Lawful Pathways
condition under the exceptions at 8 CFR
208.33(a)(2)(ii)(A) and (C); those
excepted from the Lawful Pathways
condition because they present at a POE
without a pre-scheduled time and place
and demonstrate 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;
and those who enter across the maritime
borders covered by the Proclamation
that are not covered by the Lawful
Pathways condition. The Departments
have adopted a somewhat narrower
scope for the standard to avoid a
circumstance where AOs and IJs would
be required to analyze both the
applicability of the Lawful Pathways
condition and then also whether the
noncitizen would otherwise be subject
to the rule’s limitation—which could
complicate and increase the time
required to conduct credible fear
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screenings. The Departments believe the
approach adopted strikes the right
balance between the interest in applying
the screening standard to those to whom
it would otherwise apply and
administrability in the event the
limitation on asylum eligibility is
rendered inoperative by court order.
The Departments request comment on
whether to expressly expand this
provision to also apply to those who are
found not to have a significant
possibility of eligibility for asylum
because they are barred from asylum
due to a mandatory bar to asylum
eligibility if the rule Application of
Certain Mandatory Bars in Fear
Screenings, 89 FR 41347 (May 13, 2024),
is finalized.
Paragraph (c) contains a family unity
provision that parallels and serves the
same purposes as the DOJ family unity
provision in the Circumvention of
Lawful Pathways rule. See 8 CFR
1208.33(c). The paragraph specifies that
a noncitizen who would be eligible for
asylum but for the limitation on
eligibility set forth in the IFR, the
condition set forth in the Circumvention
of Lawful Pathways rule, or both, may
meet the family unity exception where
the other requirements are met. The
expressly permissive, discretionary
nature of this provision, which owes in
part to the considerations described
earlier in this section with respect to
asylum merits interviews, distinguishes
it from the parallel DOJ provision in the
Circumvention of Lawful Pathways rule
and the parallel DOJ provision
described in the next section of this
preamble.
Paragraph (d) mirrors 8 CFR 208.33(c)
and 1208.33(d) and specifies the
ongoing applicability of the limitation
on asylum eligibility by providing that
it shall apply to ‘‘any asylum
application’’ that is filed by a covered
noncitizen ‘‘regardless of when the
application is filed and adjudicated.’’ Id.
208.35(d)(1). The Departments have
excepted from this ongoing application
of the limitation on asylum eligibility
certain noncitizens who enter the
United States during emergency border
circumstances while under the age of 18
and who later seek asylum as principal
applicants so long as the asylum
application is filed after the period of
time described in § 208.13(g) during
which the noncitizen entered. See id.
208.35(d)(2). Commenters on the
Circumvention of Lawful Pathways rule
raised concerns about the impact of that
rule on children who arrive as part of
a family unit and who are thus subject
to the decision-making of their parents.
88 FR at 31320. The Departments
decided to adopt a provision excepting
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such children from that rule in certain
circumstances after the two-year period
ends. See 8 CFR 208.33(c)(2),
1208.33(d)(2). The Departments
recognized that children who enter with
their families are generally traveling due
to their parents’ decision-making. 88 FR
at 31320. The Departments believe that
these considerations are also relevant to
this rule and have decided to adopt a
similar approach as that adopted in the
Circumvention of Lawful Pathways rule.
The Departments considered whether
to except family units, or children who
are part of family units, from the
limitation on asylum eligibility entirely.
The Departments decline to adopt such
an approach. Excepting all family units
that include minor children could
incentivize families who otherwise
would not make the dangerous journey
and cross unlawfully to do so. And
excepting only the child 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 limitation but their
parents could be. Although
accompanied children remain subject to
the limitation on asylum eligibility
generally, the Departments have
determined that the limitation should
not apply to them in any application for
asylum they file after the relevant
period, but only if they apply as a
principal (as opposed to a derivative)
applicant.
The Departments also considered
applying a specific calendar date to this
provision, similar to the approach taken
by the Departments in the
Circumvention of Lawful Pathways
rule.294 The Departments determined
that such a provision would be
challenging to implement because the
Departments have not identified a date
certain upon which emergency border
circumstances are expected to
discontinue. The Departments believe
that the key purpose of an asylum
application waiting period—protecting
against any perceived incentive for
family units to migrate irregularly—is
adequately served by a requirement that
the applicable period of emergency
border circumstances is no longer in
place at the time of application. For that
same reason, the Departments do not
believe it is necessary to make this
exception unavailable during any period
of emergency border circumstances;
instead, this exception will be available
294 Under that rule, the Lawful Pathways
condition does not apply to certain asylum
applications filed after May 11, 2025—two years
after that rule’s initial issuance. 8 CFR 208.33(c)(2),
1208.33(d)(2); 88 FR at 31449.
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after the end of the emergency border
circumstance during which the
applicant entered. Because noncitizens
will not know in advance when the
emergency border circumstance will
end, and when another emergency
border circumstance might occur, the
approach adopted in the rule addresses
noncitizens’ incentives without
restricting this exception more than is
necessary.
The Departments believe this
approach balances the interest in
ensuring the limitation has an impact on
behavior, while at the same time
recognizing the special circumstance of
children who enter in a manner that
triggers the limitation, 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 children who
filed as a derivative, the Departments
would risk incentivizing families to seek
to prolong their proceedings to file their
asylum applications after the end of the
circumstances leading to the suspension
and limitation on entry, undermining
the Departments’ interest in efficient
adjudications. In addition, any family
that did so would be able to avoid the
applicability of the limitation entirely,
by virtue of the rule’s family unity
provision. The Departments have
decided not to include such a broad
exception, in light of the urgent need to
gain efficiencies in the expedited
removal process and dissuade entry
during the circumstances described in
the Proclamation and this rule.
Finally, DHS is including a
severability clause in this provision. See
8 CFR 208.35(e). If any provision of this
section, § 235.15, or the Proclamation is
held to be invalid or unenforceable by
its terms, or as applied to any person or
circumstance, DHS intends that the
provision be construed so as to continue
to give the maximum effect to the
provision permitted by law, unless such
holding is that the provision is wholly
invalid and unenforceable, in which
event the provision should be severed
from the remainder of this section and
the holding should not affect the
remainder of this section or the
application of the provision to persons
not similarly situated or to dissimilar
circumstances. Indeed, in this rule, the
Departments have sought to avoid
describing ‘‘emergency border
circumstances’’ as the time period
during which the Proclamation is in
effect, because the Departments intend
for certain provisions of this rule to
remain in effect in the event a court
enjoins or otherwise renders inoperable
the Proclamation or this rule’s
limitation on asylum eligibility. This
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approach is consistent with the nature
of the rule as an emergency measure and
reflects DHS’s determination that the
limitation on asylum eligibility will
improve the border security and
immigration systems’ capacity to safely
process migrants during the
circumstances described in the
Proclamation and this rule. For
example, even in the absence of the
limitation on asylum eligibility, as
expressly set forth in paragraph (b)(3),
the Department intends that the
‘‘reasonable probability’’ standard be
used for screening for eligibility for
statutory withholding of removal and
CAT protection for those who would
have been subject to the limitation on
asylum if they are otherwise unable to
establish a credible fear of persecution
for asylum purposes, including but not
limited to because they are subject to
the Lawful Pathways rebuttable
presumption. Similarly, even in the
absence of the new provision at 8 CFR
235.15 discussed below, the changes
made in § 208.35 are expected to prove
helpful in the emergency circumstances
described by the Proclamation and the
rule. See id. 208.35(e).
3. 8 CFR 1208.35
Like DHS’s addition to 8 CFR part
208, DOJ is adding to 8 CFR part 1208,
Procedures for Asylum and Withholding
of Removal, a new subpart D, Eligibility
for Aliens Who Enter the United States
During Emergency Border
Circumstances. Within subpart D, DOJ
is adding a new § 1208.35, Limitation on
asylum eligibility and credible fear
procedures for those who enter the
United States during emergency border
circumstances. This section sets forth a
new limitation on asylum eligibility and
procedures related to IJ review of
credible fear determinations in
expedited removal proceedings during
emergency border circumstances. This
provision applies notwithstanding any
contrary provision in EOIR’s
regulations. Section 1208.35 consists of
the following provisions:
Paragraph (a) mirrors new § 208.35(a),
discussed above.
Paragraph (b) provides procedures for
credible fear determinations. Under
these procedures, when a noncitizen has
requested IJ review of an AO’s negative
credible fear determination, the IJ will
evaluate the case de novo, taking into
account the credibility of the statements
made by the noncitizen in support of
the noncitizen’s claim and such other
facts as are known to the IJ. See 8 CFR
1208.35(b)(1). The paragraph sets forth
three possible procedural scenarios
depending on the IJ’s determinations.
First, where the IJ determines that the
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noncitizen is not subject to this IFR’s
limitation on asylum eligibility because
there is a significant possibility that the
noncitizen could establish that they are
not described in § 1208.13(g), the IJ will
follow the procedures for credible fear
interviews relating to the Lawful
Pathways condition in § 1208.33(b). See
id. 1208.35(b)(2)(i).295 This provides
that those noncitizens who did not enter
during emergency border circumstances
are processed under the provisions
governing the Lawful Pathways
condition—and under § 1208.33(b)(2)(i),
if the noncitizen is not subject to that
condition they will be screened for a
significant possibility of eligibility for
statutory withholding of removal or
CAT protection consistent with
§ 208.30. Second, where the IJ
determines that the noncitizen is not
subject to this IFR’s limitation on
asylum eligibility because there is a
significant possibility that the
noncitizen could establish either that
they are described in section 3(b) of the
Proclamation or exceptionally
compelling circumstances exist under
paragraph (a)(2), the IJ will follow the
procedures in 8 CFR 1208.30. See id.
1208.35(b)(2)(ii). Third, where the IJ
determines that the IFR’s limitation on
asylum eligibility applies—including
that there is not a significant possibility
that the noncitizen could establish an
exception under section 3(b) of the
Proclamation—and that there is not a
significant possibility that the
noncitizen could establish an exception
under paragraph (a)(2) of the limitation,
the IJ will apply the Circumvention of
Lawful Pathways rule’s procedures set
forth in § 1208.33(b)(2)(ii), except that
the IJ will apply a ‘‘reasonable
probability’’ standard to parallel the
standard adopted by DHS. See id.
1208.35(b)(2)(iii).
Paragraph (b)(4), mirrors new
§ 208.35(b)(3), discussed above.
Paragraph (c) contains a family unity
provision that parallels and serves the
same purposes as the family unity
provision in the Circumvention of
Lawful Pathways rule. See id.
1208.33(c), 1208.35(c). The paragraph
specifies that a noncitizen who would
be eligible for asylum but for the
limitation on eligibility set forth in the
295 As explained above regarding AOs, the
discussion in the Circumvention of Lawful
Pathways rule regarding how AOs would apply the
limitation on asylum eligibility at issue there
consistent with the statutory ‘‘significant
possibility’’ standard, see 88 FR at 31380, is equally
applicable to IJs’ application of the limitation on
asylum eligibility created by this IFR. As explained
above in Section III.B.3.a of this preamble, IJs will
rarely have grounds to reach a different result from
the CBP immigration officers as to the application
of the Proclamation or its exceptions.
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IFR, the condition set forth in the
Circumvention of Lawful Pathways rule,
or both, may meet the family unity
exception where the other requirements
are met.
Paragraph (d) mirrors new § 208.35(d),
discussed above.
Paragraph (e) contains a severability
provision that serves a similar purpose
to the provision in § 208.35(e) described
above. If any provision of this section or
the Proclamation is held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstance, DOJ
intends that the provision be construed
so as to continue to give the maximum
effect to the provision permitted by law,
unless such holding is that the
provision is wholly invalid and
unenforceable, in which event the
provision should be severed from the
remainder of this section and the
holding should not affect the remainder
of this section or the application of the
provision to persons not similarly
situated or to dissimilar circumstances.
This approach is consistent with the
nature of the rule as an emergency
measure and reflects DOJ’s
determination that the limitation on
asylum eligibility will improve the
border security and immigration
systems’ capacity to safely process
migrants during the circumstances
described in the Proclamation and this
rule. For example, as set forth explicitly
in paragraph (b)(4), even in the absence
of the limitation on asylum eligibility,
the Department intends that the
‘‘reasonable probability’’ standard be
used for screening for eligibility for
statutory withholding of removal and
CAT protection for those who would
have been subject to the limitation on
asylum if they are otherwise unable to
establish a credible fear of persecution
for asylum purposes, including but not
limited to because they are subject to
the Lawful Pathways rebuttable
presumption. See id. 1208.35(e).
4. 8 CFR 235.15
DHS is adding to 8 CFR part 235,
Inspection of Persons Applying for
Admission, a new § 235.15,
Inadmissible aliens and expedited
removal during emergency border
circumstances. New 8 CFR 235.15 will
further streamline aspects of the
expedited removal process by
effectively replacing paragraphs (b)(2)(i)
and (b)(4)(i) of 8 CFR 235.3 for those
individuals described in § 235.3(b)(1)(i)
or (ii) and who are described in
§ 208.13(g) but not described in section
3(b) of the Proclamation. See 8 CFR
235.15. The changes would not affect
implementation of 8 CFR 235.3(b)(4)(ii)
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or any other portion of 8 CFR 235.3. See
id. The changes are as follows.
First, under 8 CFR 235.3(b)(2)(i), the
record of proceeding includes a sworn
statement using Form I–867AB, Record
of Sworn Statement in Proceedings
under Section 235(b)(1) of the Act.
Under the existing regulations, the
examining immigration officer reads (or
has read) to the noncitizen all
information contained on Form I–867A.
Following questioning and recording of
the noncitizen’s statement regarding
identity, alienage, and inadmissibility,
the examining immigration officer
records the noncitizen’s response to the
questions contained on Form I–867B,
and has the noncitizen read (or has read
to the noncitizen) the statement, and the
noncitizen signs and initials each page
of the statement and each correction, if
any.
DHS is adding a new 8 CFR
235.15(b)(2)(i) to apply to certain
noncitizens instead of this current
process during emergency border
circumstances. Under this procedure,
Forms I–867A and I–867B will no
longer be mandated in such
circumstances. Instead, the immigration
officer shall advise the individual of the
charges against them on the Form I–860
and give him or her an opportunity to
respond to those charges. See 8 CFR
235.15(b)(2)(i)(B). This provision does
not require that the response be done
through a sworn statement. See id.
Consistent with current regulations,
however, the inspecting officer must
obtain supervisory concurrence of an
expedited removal order in accordance
with § 235.3(b)(7). Id. Moreover,
consistent with current regulations, the
examining immigration official shall
serve the noncitizen with Form I–860,
and the noncitizen shall be required to
sign the form acknowledging receipt. Id.
The new 8 CFR 235.15(b)(2)(i) no longer
mandates that the signature occur on the
reverse, but preserves the requirement
that the noncitizen be required to sign,
allowing greater flexibility for location
of signature blocks on the document.
See id. 235.3(b)(2)(i). The new provision
maintains the requirement that
interpretative assistance shall be used if
necessary to communicate with the
noncitizen. Id. 235.3(b)(2)(i)(B). The
new 8 CFR 235.15(b)(2)(i) also allows
for greater flexibility regarding how
DHS records the information that
supports the finding that the noncitizen
is inadmissible and subject to expedited
removal. This operational flexibility is
consistent with the President’s
determination that emergency border
circumstances are present such that the
suspension and limitation on entry is
warranted.
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Second, under 8 CFR 235.3(b)(4), if a
noncitizen subject to the expedited
removal provisions indicates an
intention to apply for asylum, or
expresses a fear of persecution or
torture, or a fear of return to his or her
country, the inspecting officer does not
proceed further with removal of the
noncitizen until the noncitizen has been
referred for an interview by an AO in
accordance with 8 CFR 208.30.
Instead of this current process, DHS is
adding a new 8 CFR 235.15(b)(4),
applicable to those who (1) are
described in § 208.13(g), (2) are not
described in section 3(b) of the
Proclamation, and (3) are processed for
expedited removal. Under this provision
the immigration officer would refer the
noncitizen to an AO if the noncitizen
manifests a fear of return or
affirmatively expresses an intention to
apply for asylum, or affirmatively
expresses a fear of persecution or
torture, or a fear of return to his or her
country or the country of removal.
Third, under 8 CFR 235.3(b)(4)(i), the
referring officer provides the noncitizen
with a written disclosure on Form M–
444, Information About Credible Fear
Interview, describing (1) the purpose of
the referral and description of the
credible fear interview process; (2) the
right to consult with other persons prior
to the interview and any review thereof
at no expense to the United States
Government; (3) the right to request a
review by an IJ of the AO’s credible fear
determination; and (4) the consequences
of failure to establish a credible fear of
persecution or torture. New 8 CFR
235.15(b)(4) will simply require that an
immigration officer provide ‘‘a written
disclosure describing the purpose of the
referral and the credible fear interview
process; the right to consult with other
persons prior to the interview and any
review thereof at no expense to the
United States Government; the right to
request a review by an IJ of the AO’s
credible fear determination; and the
consequences of failure to establish a
credible fear of persecution or torture.’’
8 CFR 235.15(b)(4)(i)(B). Thus, while
maintaining the substance of the
information that must be provided to
the noncitizen, the regulation removes
the requirement that it be on a particular
form, allowing for greater flexibility in
how the information is distributed.
Finally, DHS is including a
severability clause in this provision. See
id. 235.15(g). DHS believes that each of
these changes can function sensibly
without the others, given that each
change is independently seeking to
provide greater flexibility during a time
when the suspension and limitation on
entry is in effect, while still protecting
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the important ability of individuals to
seek protection from removal. DHS
further believes that even if a court
order enjoins or vacates the
Proclamation or provisions other than
§ 235.15 of this rule, the provisions in
§ 235.15 can continue to apply to those
described in § 208.13(g) and not
described in section 3(b) of the
Proclamation, even if they cannot be
subject to those provisions by operation
of such court order.
IV. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
Under the Administrative Procedure
Act (‘‘APA’’), agencies must generally
provide ‘‘notice of proposed rule
making’’ in the Federal Register and,
after such notice, ‘‘give interested
persons an opportunity to participate in
the rule making through submission of
written data, views, or arguments.’’ 5
U.S.C. 553(b) and (c). The APA further
provides that the required publication
or service of a substantive rule shall be
made not less than 30 days before its
effective date, except in certain
circumstances. Id. 553(d). Consistent
with the APA, the Departments have not
invoked these procedures because (1)
this rule involves a foreign affairs
function of the United States and thus
is excepted from such requirements, id.
553(a)(1), and (2) the Departments have
found good cause to proceed with an
immediately effective interim final rule,
id. 553(b)(B), 553(d)(3), for the reasons
explained below. At the same time, the
Departments seek and welcome postpromulgation comments on this IFR.
1. Foreign Affairs
This rule is excepted from the APA’s
notice-and-comment and delayedeffective-date requirements because it
involves a ‘‘foreign affairs function of
the United States.’’ 5 U.S.C. 553(a)(1).
Courts have held that this exception
applies when the rule in question ‘‘is
clearly and directly involved in a
foreign affairs function.’’ 296 In addition,
although the text of the APA does not
require an agency invoking this
exception to show that such procedures
may result in ‘‘definitely undesirable
international consequences,’’ some
courts have required such a showing.
Rajah v. Mukasey, 544 F.3d 427, 437 (2d
296 E.B. v. U.S. Dep‘t of State, 583 F. Supp. 3d 58,
63 (D.D.C. 2022) (cleaned up); see Mast Indus., Inc.
v. Regan, 596 F. Supp. 1567, 1582 (Ct. Int’l. Trade
1984); see also Am. Ass’n of Exps. & Imps. v. United
States, 751 F.2d 1239, 1249 (Fed. Cir. 1985)
(holding that the exception applies where a rule is
‘‘linked intimately with the Government’s overall
political agenda concerning relations with another
country’’).
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48759
Cir. 2008) (quotation marks omitted).297
This rule satisfies both standards.
The United States’ border
management strategy is predicated on
the belief that migration is a shared
responsibility among all countries in the
region—a fact reflected in the intensive
and concerted diplomatic outreach on
migration issues that DHS and the
Department of State have made with
partners throughout the Western
Hemisphere. This strategy includes the
Los Angeles Declaration on Migration
and Protection, which was joined by
leaders during the Summit of the
Americas on June 10, 2022, and has
been endorsed by 22 countries.298
Under the umbrella of this framework,
the United States has been working
closely with its foreign partners to
manage the unprecedented levels of
migration that countries throughout the
region have recently been experiencing,
including on efforts to: expand access
to, and increase, lawful pathways, such
as the Safe Mobility Office initiative; 299
conduct joint enforcement efforts, such
as the Darién Campaign with Colombia
and Panama and the mirrored patrols 300
with the Government of Mexico along
297 See, e.g., Rajah, 544 F.3d at 437 (‘‘There are
at least three definitely undesirable international
consequences that would follow from notice and
comment rulemaking. First, sensitive foreign
intelligence might be revealed in the course of
explaining why some of a particular nation’s
citizens are regarded as a threat. Second, relations
with other countries might be impaired if the
government were to conduct and resolve a public
debate over why some citizens of particular
countries were a potential danger to our security.
Third, the process would be slow and cumbersome,
diminishing our ability to collect intelligence
regarding, and enhance defenses in anticipation of,
a potential attack by foreign terrorists.’’); see also
Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th
Cir. 1980) (‘‘For the [foreign affairs] exception to
apply, the public rulemaking provisions should
provoke definitely undesirable international
consequences.’’). But see E.B., 583 F. Supp. 3d at
64–66 (rejecting the ‘‘provoke definitely undesirable
international consequences’’ standard).
298 See Los Angeles Declaration on Migration and
Protection, Endorsing Countries, https://
losangelesdeclaration.com/endorsing-countries (last
visited May 27, 2024).
299 See U.S. Dep’t of State, Safe Mobility
Initiative, https://www.state.gov/refugeeadmissions/safe-mobility-initiative (last visited May
27, 2024).
300 See CBP, Readout: U.S.-Mexico meeting on
joint actions to further enhance border security
(Sept. 24, 2023), https://www.cbp.gov/newsroom/
national-media-release/readout-us-mexico-meetingjoint-actions-further-enhance-border (noting that
CBP encouraged mirrored patrols); U.S. Dep’t of
State, Third Meeting of the U.S.-Mexico High-Level
Security Dialogue—Fact Sheet (Oct. 13, 2023),
https://www.state.gov/third-meeting-of-the-u-smexico-high-level-security-dialogue/ (noting that
‘‘CBP and INM regularly coordinate enforcement
efforts at the border through mirrored patrols,’’
which suggests that those patrols were occurring).
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our shared border; 301 and share
information, technical assistance, and
best practices.302 The United States and
endorsing countries continue to
progress and expand upon our shared
commitments made under this
framework.303
This international coordination has
yielded important results. A number of
foreign partners, including Mexico,
Panama, and Colombia, announced
significantly enhanced efforts to enforce
their borders in the days leading up to
the end of the Title 42 public health
Order.304 These governments
recognized that the United States was
taking measures to strengthen border
enforcement, specifically through
application of the Circumvention of
Lawful Pathways rule along with other
complementary measures, and
committed to taking their own actions to
address irregular migratory flows in the
region.305 Additionally, immediately
prior to the transition from DHS
processing under the Title 42 public
health Order to processing under title 8
authorities, the Government of Mexico
announced that it had independently
decided to accept the return into Mexico
of nationals from CHNV countries under
title 8 processes.306 However, in the
301 See DHS, Trilateral Statement (Apr. 11, 2023),
https://www.dhs.gov/news/2023/04/11/trilateraljoint-statement.
302 See, e.g., 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, Exec. Order 14010, 86 FR 8267, 8270 (Feb.
2, 2021); The White House, Los Angeles Declaration
on Migration and Protection (June 10, 2022),
https://www.whitehouse.gov/briefing-room/
statements-releases/2022/06/10/los-angelesdeclaration-on-migration-and-protection/; The
White House, Fact Sheet: U.S.-Mexico High-Level
Security Dialogue (Oct. 8, 2021), https://
www.whitehouse.gov/briefing-room/statementsreleases/2021/10/08/fact-sheet-u-s-mexico-highlevel-security-dialogue/; U.S. Dep’t of State, Fact
Sheet: Third Meeting of the U.S.-Mexico High-Level
Security Dialogue (Oct. 13, 2023), https://
www.state.gov/third-meeting-of-the-u-s-mexicohigh-level-security-dialogue/.
303 See The White House, Fact Sheet: Third
Ministerial Meeting on the Los Angeles Declaration
On Migration and Protection in Guatemala (May 7,
2024),
304 Kathia Martı́nez, US, Panama and Colombia
Aim to Stop Darien Gap Migration, AP News (Apr.
11, 2023), https://apnews.com/article/darien-gappanama-colombia-us-migrantscf0cd1e9de2119208c9af186e53e09b7; Camilo
Montoya-Galvez, Mexico Will Increase Efforts To
Stop U.S.-Bound Migrants as Title 42 Ends, U.S.
Officials Say, CBS News (May 10, 2023), https://
www.cbsnews.com/news/title-42-end-bordermexico-efforts-us-bound-migrants/.
305 88 FR at 31444.
306 See The White House, Mexico and United
States Strengthen Joint Humanitarian Plan on
Migration (May 2, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/;
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intervening months, Mexico and other
partners’ resources have been
significantly strained by sustained high
encounter levels, and at different times
enforcement by our partners has been
disrupted, leading to surges at our own
border.307
In public messaging, the Government
of Mexico linked its decision to accept
return into Mexico of CHNV nationals to
the success of the CHNV parole
processes framework under the Title 42
public health Order,308 which combined
expansion of lawful pathways and
processes for nationals of these
countries with a meaningful
consequence framework, and which
reduced irregular border crossings.309
Sustaining and, as appropriate, ramping
DHS, Fact Sheet: Data From First Six Months of
Parole Processes for Cubans, Haitians, Nicaraguans,
and Venezuelans Shows that Lawful Pathways
Work (July 25, 2023), https://www.dhs.gov/news/
2023/07/25/fact-sheet-data-first-six-months-paroleprocesses-cubans-haitians-nicaraguans-and.
307 See Charles G. Ripley III, Crisis Prompts
Record Emigration from Nicaragua, Surpassing
Cold War Era, Migration Pol’y Inst. (Mar. 7, 2023),
https://www.migrationpolicy.org/article/recordemigration-nicaragua-crisis; James Fredrick, Mexico
Feels Pressure of Relentless Migration from South
America, N.Y. Times (Sept. 21, 2023) (‘‘Similar
scenes are playing out across the country as
Mexico’s immigration system strains under a tide of
people desperately trying to go north. The relentless
surge has led to a hodgepodge response in Mexico
ranging from shutting down railways heading north
to the busing of people to areas with fewer
migrants.’’); Megan Janetsky & Javier Córdoba,
Central America scrambles as the international
community fails to find solution to record
migration, AP News (Oct. 20, 2023), https://
apnews.com/article/costa-rica-migration-dariengap-biden-420e2d1219d403d7feec6463a6e9cdae
(noting the resources pull migration flows place on
certain Central American countries); Marı́a Verza,
Mexico halts deportations and migrant transfers
citing lack of funds, AP News (Dec. 4, 2023),
https://apnews.com/article/mexico-immigrationmigrants-venezuela17615ace23d0677bb443d8386e254fbc (observing
that the ‘‘head of Mexico’s immigration agency . . .
ordered the suspension of migrant deportations and
transfers due to a lack of funds’’); Valerie Gonzalez
& Elliot Spagat, The US sees a drop in illegal border
crossings after Mexico increases enforcement, AP
News (Jan. 7, 2024), https://apnews.com/article/
mexico-immigration-enforcement-crossings-dropb67022cf0853dca95a8e0799bb99b68a (noting the
disruption in enforcement that resulted from
Mexico’s lack of funding and quoting Andrew
Selee, President of the Migration Policy Institute, as
saying that ‘‘[t]he U.S. is able to lean on Mexico for
a short-term enforcement effect at the border, but
the long-term effects are not always clear’’).
308 See Gobierno de México, México y Estados
Unidos fortalecen Plan Humanitario Conjunto sobre
Migración (May 2, 2023), https://www.gob.mx/
presidencia/prensa/mexico-y-estados-unidosfortalecen-plan-humanitario-conjunto-sobremigracion?state=published (characterizing the effort
of the Government of Mexico as a successful joint
initiative and expressing the Government’s
commitment to continue to accept migrants back
into Mexico on humanitarian grounds).
309 See id. (describing a significant reduction in
irregular migration following the implementation of
CHNV parole processes, which pair an expansion
of lawful pathways with consequences for irregular
migration).
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up efforts to improve border security
and stem arrivals to the southern border
is a critical element of the United States’
ongoing diplomatic approach to
migration management with partners in
the region. This has been a key
component of our diplomacy, as
regional partner countries have
regularly encouraged DHS to take steps
to address migratory flows, including by
channeling intending migrants into
expanded lawful pathways and
processes. For example, following the
development of the parole process for
Venezuelans announced in October
2022—an approach that was
subsequently expanded to include
processes for Cuban, Haitian, and
Nicaraguan nationals in January 2023—
regional partners urged the United
States to continue building on this
approach, which imposed consequences
for irregular migration alongside the
availability of a lawful, safe, and orderly
process for migrants to travel directly to
the United States.310 Following the
announcement of the Venezuela parole
process in October 2022 and the
subsequent announcement of the Cuba,
Haiti, and Nicaragua parole processes in
January 2023, migration flows through
the region and at the U.S.-Mexico border
slowed. See 88 FR at 31317 (‘‘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.’’).
The United States has continued to
build on this historic expansion of
lawful pathways and processes, which
include the humanitarian parole
processes for CHNV nationals; 311 efforts
to expand labor pathways and dedicate
a set number of visas to nationals of
countries in the hemisphere; 312 the
implementation of new Family
Reunification Parole (‘‘FRP’’) processes
for certain nationals of Colombia,
Ecuador, El Salvador, Guatemala, and
Honduras; and the modernization of
FRP processes for certain nationals of
Cuba and Haiti.313
310 See 88 FR at 31444; The White House, Mexico
and United States Strengthen Joint Humanitarian
Plan on Migration (May 2, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/.
311 See USCIS, Processes for Cubans, Haitians,
Nicaraguans, and Venezuelans (Sept. 20, 2023),
https://www.uscis.gov/CHNV.
312 See DHS & U.S. Dep’t of Labor, Temporary
Rule—Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2024 for
the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 88 FR
80394 (Nov. 17, 2023).
313 DHS, DHS Modernizes Cuban and Haitian
Family Reunification Parole Processes (Aug. 10,
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Concurrently, the Governments of
Colombia and Panama have made
significant efforts to combat smuggling
networks operating on both sides of the
Darién Gap.314 The Government of
Mexico has likewise increased
enforcement along its southern border
and the transit routes north.315 These
enforcement campaigns have been
implemented at substantial cost for
those governments and, as with United
States Government actions, reflect our
shared regional responsibility to manage
migration.316
Given the particular challenges facing
the United States and its regional
partners at this moment, the
Departments assess that it is critical that
the United States continue to lead the
way in responding to ever-changing and
increasing migratory flows, and that this
regulatory effort and the Presidential
Proclamation—and the strong
consequences they will impose at the
border—will send an important message
to the region that the United States is
prepared to put in place appropriate
measures to prepare for and, if
necessary, respond to ongoing migratory
challenges.
In addition to this IFR’s clear and
direct involvement in foreign affairs, the
Departments believe that conducting a
notice-and-comment process and
providing a delayed effective date on
this rule likely would lead to a surge to
the border before the Departments could
finalize the rule, which would adversely
impact the United States’ foreign policy
priorities. Prior to the end of the Title
42 public health Order, regional
partners expressed great concern about
2023), https://www.dhs.gov/news/2023/08/10/dhsmodernizes-cuban-and-haitian-familyreunification-parole-processes.
314 See Kathia Martı́nez, US, Panama, and
Colombia aim to stop Darien Gap migration, AP
News (Apr. 11, 2023), https://apnews.com/article/
darien-gap-panama-colombia-us-migrantscf0cd1e9de2119208c9af186e53e09b7; Juan
Zamorano & Christopher Sherman, Explainer:
Panama launches operation against smugglers in
Darien Gap, AP News (June 3, 2023), https://
apnews.com/article/panama-colombia-darien-gapmigrants-d0ec93c4d4ddc91f34e31c704b4cf8ae.
315 See, e.g., Associated Press, U.S. Border Arrests
Decline Amid Increased Enforcement in Mexico,
NPR (Apr. 13, 2024), https://www.npr.org/2024/04/
13/1244590706/mexico-border-arrests-fall-march
(‘‘Mexico detained migrants 240,000 times in the
first two months of the year, more than triple from
the same period of 2023, sending many deeper
south into the country to discourage them from
coming to the United States. While Mexico hasn’t
released figures for March, U.S. officials have said
Mexican enforcement is largely responsible for
recent declines.’’).
316 See, e.g., The White House, Press Release,
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-unitedstates-strengthen-joint-humanitarian-plan-onmigration/.
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the misperception that the end of the
Order would mean an open U.S. border
and result in a surge of irregular
migration flowing through their
countries as migrants sought to enter the
United States. See 88 FR at 31444. One
foreign partner, for example, expressed
the strong concern that the formation of
caravans during the spring of 2022 was
spurred by rumors—and the subsequent
official announcement—of the
anticipated end of the Title 42 public
health Order. See id. This view is
consistent with the views of other
regional partner countries that have
repeatedly emphasized the ways in
which U.S. policy announcements have
a direct and immediate impact on
migratory flows through their countries.
See id. Such effects are precisely the
kind of ‘‘definitely undesirable
international consequences’’ that the
Departments seek to avoid.
The surge about which many foreign
leaders were concerned happened
sooner than expected. In the weeks
leading up to the lifting of the Title 42
public health Order, hemispheric
migration spiked. Entries into the
Darién jungle by migrants staged in
Colombia began increasing in the
months leading up to May 12, 2023,
from a little more than 24,600 in January
2023, to more than 40,000 in April 2023
immediately before the Order lifted.317
And as described more fully above, total
CBP encounters at the SWB increased to
then-record levels in the days
immediately preceding May 12, 2023, a
situation that was fueled by noncitizens
seeking to enter the United States before
new policies were put into effect, as
well as by smuggling organizations that
disseminated misinformation.318 The
scale of regional migration in those
weeks strained the immigration
processes of all the affected countries,
including those of the United States.
As noted above, the United States saw
a similar scale of migration at the end
of 2023. The surge in December 2023
led the United States Government and
317 See Servicio Nacional de Migración Panamá,
Estadisicas, Tránsito Irregular por Darién 2023,
https://www.migracion.gob.pa/inicio/estadisticas.
318 See Valerie Gonzalez, Migrants rush across US
border in final hours before Title 42 expires, AP
News (May 11, 2023), https://apnews.com/article/
immigration-border-title-42-mexico-asylum8c239766c2cb6e257c0220413b8e9cf9 (noting that
‘‘[m]any migrants were acutely aware of looming
policy changes as they searched Thursday for an
opportunity to turn themselves over to U.S.
immigration authorities before the 11:59 EDT
deadline . . . [and] [e]ven as migrants were racing
to reach U.S. soil before the rules expire, Mexican
President Andrés Manuel López Obrador said
smugglers were sending a different message . . .
[and] offering to take migrants to the United States
and telling them the border was open starting
Thursday’’).
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the Government of Mexico to hold a
series of engagements at the highest
levels—including between the
countries’ Presidents and Cabinet
Members—to address the shared
challenge of migration confronting both
countries.319 These conversations
included commitments by both
governments to continue to expand
efforts to coordinate enforcement
actions on both sides of the border.320
January, February, and March are
typically slower months, but since these
engagements, and the joint operational
actions that resulted, there has been a
decrease in USBP encounters at the
border, as discussed in Section III.B.1 of
this preamble.
The record-breaking hemispheric
migration throughout the region has
deeply affected governments from South
America all the way to the U.S.-Mexico
border. Panama has been encountering
record numbers of migrants transiting
one of the most dangerous smuggling
corridors on the planet, the Darién
Jungle.321 Colombia, Peru, and Ecuador
have hosted around 3 million,322 over
1.5 million,323 and more than 475,000
Venezuelans,324 respectively, while
Costa Rica has recently hosted hundreds
of thousands of Nicaraguans.325 Mexico
has received record-breaking numbers of
319 See
supra Section III.B.1 of this preamble.
e.g., White House, Readout of Homeland
Security Advisor Dr. Liz Sherwood-Randall’s Trip to
Mexico (Feb. 7, 2024), https://www.whitehouse.gov/
briefing-room/statements-releases/2024/02/07/
readout-of-homeland-security-advisor-dr-lizsherwood-randalls-trip-to-mexico/; Amna Nawaz,
Mexico’s foreign secretary discusses what her
country is doing to ease border crisis, PBS News
Hour (Jan. 25, 2024), https://www.pbs.org/
newshour/show/mexicos-foreign-secretarydiscusses-what-her-country-is-doing-to-ease-bordercrisis (quoting Foreign Secretary Bárcena as
describing ‘‘much more law enforcement to bring
down the pressure in the border’’ by Mexico in the
preceding weeks).
321 See Nick Paton Walsh et al., On one of the
world’s most dangerous migrant routes, a cartel
makes millions off the American dream, CNN (Apr.
17, 2023), https://www.cnn.com/2023/04/15/
americas/darien-gap-migrants-colombia-panamawhole-story-cmd-intl/; Diana Roy,
Crossing the Darién Gap: Migrants Risk Death on
the Journey to the U.S., Council on Foreign Rels.
(Feb. 1, 2024), https://www.cfr.org/article/crossingdarien-gap-migrants-risk-death-journey-us; Mallory
Moench, Volume of Migrants Crossing the
Dangerous Darién Gap Hit Record High in 2023,
Time (Dec. 22, 2023), https://time.com/6547992/
migrants-crossing-darien-gap-2023.
322 See UNHCR, Colombia Country Operations
(2024), https://reporting.unhcr.org/operational/
operations/colombia.
323 See UNHCR, Peru Country Operations (2024),
https://reporting.unhcr.org/operational/operations/
peru.
324 See UNHCR, Ecuador Country Operations
(2024), https://reporting.unhcr.org/operational/
operations/ecuador.
325 See UNHCR, Costa Rica Country Operations
(2024), https://reporting.unhcr.org/operational/
operations/costa-rica.
320 See,
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asylum applications in addition to the
enforcement efforts it is undertaking.326
As described more fully above, DHS’s
internal projections suggest that SWB
encounters may once again reach
extremely elevated levels in the weeks
to come, averaging in the range of
approximately 3,900 to approximately
6,700 encounters at and between POEs
per day from July to September, not
including an additional 1,450
noncitizens per day who are expected to
be encountered at POEs after making
appointments though the CBP One
app.327 Regional migration trends
support these projections. For example,
between January and April 2024,
UNHCR tracked 139,000 irregular
entries, up from 128,000 for the same
months in 2023 and a seven-fold
increase over that period in 2022.328
Moreover, as noted above, the
Government of Mexico has been
receiving record-breaking numbers of
asylum applications—reflecting the
large number of migrants currently in
Mexico.
The weeks leading up to May 12,
2023, demonstrated that when migrants
anticipate major changes in border
policy, there is the potential to ignite a
rush to the border to arrive before the
changes take effect.329 Any delay
between announcement of this rule and
its implementation through notice and
comment would almost certainly trigger
a surge in migration that would
326 See UNHCR, Operational Update: Mexico
(Dec. 2023), https://reporting.unhcr.org/mexicooperational-update-6421; UNHCR, Fact Sheet,
Mexico (Nov. 2023), https://data.unhcr.org/en/
documents/download/105202 (‘‘From January to
October 2023, Mexico received over 127,796 asylum
applications, the highest ever number of asylum
claims received in this time frame.’’); Daina Beth
Solomon & Lizbeth Diaz, Mexico seeks to curb
‘abuse’ of asylum system by migrants who do not
plan to stay, Reuters (Feb. 13, 2023), https://
www.reuters.com/world/americas/mexico-seekscurb-abuse-asylum-system-by-migrants-who-do-notplan-stay-2023-02-13/ (‘‘Mexico has the world’s
third highest number of asylum applications after
the United States and Germany, reflecting growing
numbers of refugee seekers that have strained
resources at the Mexican Commission for Refugee
Assistance.’’).
327 OHSS Southwest Border Encounter Projection,
April 2024. Note that the OHSS encounter
projection excludes encounters of people who have
registered with the CBP One app along with
administrative encounters at POEs (i.e., encounters
in which removal proceedings are not considered),
but includes non-CBP One enforcement encounters
at POEs, which have averaged about 190 per day
since May 2023. See also CBP, CBP OneTM
Appointments Increased to 1,450 Per Day (June 30,
2023), https://www.cbp.gov/newsroom/nationalmedia-release/cbp-one-appointments-increased1450-day.
328 See supra note 122.
329 Decl. of Blas Nuñez-Neto ¶¶ 9–10, E. Bay
Sanctuary Covenant v. Biden, No. 4:18–cv–06810–
JST (N.D. Cal. June 16, 2023) (Dkt. 176–2); Decl. of
Matthew J. Hudak ¶ 11, Florida v. Mayorkas, No.
3:22–cv–9962 (N.D. Fla. May 12, 2023) (Dkt. 13–1).
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undermine the principal goal of this
entire effort: to reduce migratory flows
to our border, and throughout the
region.
The Departments believe that the
emergency measures being taken here
are needed to help address this regional
challenge, and that any decrease in
migration that results will help relieve
the strain not just on the U.S.-Mexico
border but on countries throughout the
hemisphere. The actions the United
States is taking in this regulation
demonstrate a commitment to
addressing irregular migration in the
region, even as foreign partners have
been taking actions themselves that are
aligned with a shared interest in
reducing migration. The IFR changes
key procedures to significantly
streamline and strengthen the
consequences delivered for unlawful or
unauthorized entry at the southern
border. The actions the Departments are
taking are directly responsive to the
shared challenge the United States and
its regional partners are confronting
and, equally important, it is critical to
implement these actions without a
lengthy period of advance notice before
the actions go into effect.
2. Good Cause
The Departments have also found
good cause to forego the APA’s noticeand-comment and delayed-effectivedate procedures. See 5 U.S.C. 553(b)(B),
(d)(3). Such procedures are
impracticable because the delays
associated with such procedures would
unduly postpone implementation of a
policy that is urgently needed to avert
significant public harm. Such
procedures are likewise contrary to the
public interest because an advance
announcement of this rule would
seriously undermine a key goal of the
policy: It would incentivize even more
irregular migration by those seeking to
enter the United States before the rule
would take effect.
First, the ‘‘impracticable’’ prong of the
good cause exception ‘‘excuses notice
and comment in emergency situations
. . . or where delay could result in
serious harm.’’ 330 Findings of
impracticability are ‘‘inevitably fact- or
330 Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir.
2004); see, e.g., id. (upholding a claim of good cause
to address ‘‘a possible imminent hazard to aircraft,
persons, and property within the United States’’
(quotation marks omitted)); Haw. Helicopter
Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir.
1995) (upholding a claim of good cause to address
20 air tour accidents over a four-year period,
including recent incidents indicating that voluntary
measures were insufficient to address the threat to
public safety).
PO 00000
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context-dependent,’’ 331 and when
reviewing such findings, courts
generally consider, among other factors,
the harms that might have resulted
while the agency completed standard
rulemaking procedures 332 and the
agency’s diligence in addressing the
problem it seeks to address.333
The critical need to immediately
implement more effective border
management measures is described at
length in the Presidential Proclamation
of June 3, 2024, Securing the Border,
and in Section III.B of this preamble.
Despite the strengthened consequences
in place at the SWB, including the
Circumvention of Lawful Pathways rule
and other measures, the United States
Government continues to contend with
exceptionally high levels of irregular
migration along the southern border,
including record-high total USBP
encounter levels on the SWB as recently
as December 2023.334 DHS’s ability to
manage this increase in encounters has
been significantly challenged by the
substantial number of noncitizens
processed for expedited removal and
expressing a fear of return or an intent
to seek asylum; rather than being swiftly
removed, these noncitizens are referred
to an AO for a credible fear interview
and can seek IJ review of an AO’s
negative credible fear determination,
which requires additional time and
resources.
331 Mid-Tex Elec. Co-op, Inc. v. FERC, 822 F.2d
1123, 1132 (D.C. Cir. 1987); see Petry v. Block, 737
F.2d 1193, 1203 (D.C. Cir. 1984) (when evaluating
agency ‘‘good cause’’ arguments, ‘‘it is clear beyond
cavil that we are duty bound to analyze the entire
set of circumstances’’). Courts have explained that
notice-and-comment rulemaking may be
impracticable, for instance, where air travel security
agencies would be unable to address threats, Jifry,
370 F.3d at 1179, if ‘‘a safety investigation shows
that a new safety rule must be put in place
immediately,’’ Util. Solid Waste Activities Grp. v.
EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) (ultimately
finding that not to be the case and rejecting the
agency’s argument), or if a rule was of ‘‘life-saving
importance’’ to mine workers in the event of a mine
explosion, Council of S. Mountains, Inc. v.
Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981).
332 See Util. Solid Waste Activities Grp., 236 F.3d
at 754–55 (explaining that ‘‘a situation is
‘impracticable’ when an agency finds that due and
timely execution of its functions would be impeded
by the notice otherwise required in § 553, as when
a safety investigation shows that a new safety rule
must be put in place immediately’’ (cleaned up)).
333 See, e.g., Tri-Cty. Tel. Ass’n, Inc. v. FCC, 999
F.3d 714, 720 (D.C. Cir. 2021) (‘‘[T]his is not a case
of unjustified agency delay. The Commission did
act earlier, . . . [and t]he agency needed to act again
. . . .’’).
334 According to March 2024 OHSS Persist
Dataset and OHSS analysis of historic CBP data for
encounters prior to FY 2000, USBP completed
250,000 encounters along the SWB in December
2023, higher than any previous month on record.
See also OHSS, 2022 Yearbook of Immigration
Statistics, tbls. 33 & 35, https://www.dhs.gov/ohss/
topics/immigration/yearbook.
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Without adequate resources and tools
to keep pace, the Departments cannot
deliver timely decisions and timely
consequences to all noncitizens
encountered at the SWB who do not
establish a lawful basis to remain.
Instead, DHS is forced to place many of
these individuals into the backlogged
immigration court system, a process that
can take several years to result in a
decision or consequence.335 Even then,
it can take weeks, months, or years to
execute a removal order depending
upon the facts of the individual case.336
Quite simply, these historic levels of
encounters and fear claims, combined
with limited resources and tools to
manage them, create a vicious cycle:
The expectation of a lengthy stay in the
United States and the inability to
impose consequences for irregular
migration close in time to entry inspires
more people to make the dangerous
journey north to take their chances at
the border.337 The USCIS affirmative
asylum backlog has reached almost 1.2
million cases and is growing.338 At the
end of the first quarter of FY 2024, there
were over 2.7 million cases pending in
the immigration courts.339 During FY
2023, IJs completed more cases than
they ever had before in a single year, but
more than twice as many cases were
received by the immigration courts as
were completed.340
Absent changes promulgated in this
rule, recent encounter trends both in the
region and at our southern border
indicate a risk of further exceeding the
Departments’ capacity to effectively
process, detain, and remove, as
appropriate, the noncitizens
encountered, and exacerbating
perceived incentives to migrate now. As
noted above, DHS’s current internal
projections suggest that total encounters
will average in the range of 3,900 to
approximately 6,700 encounters at and
between POEs per day from July to
September, not including an additional
1,450 noncitizens per day who are
335 See
supra note 25.
analysis of March 2024 OHSS Persist
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336 OHSS
Dataset.
337 See, e.g., Jordan, supra note 27.
338 OHSS analysis of USCIS Global Affirmative
Data as of March 31, 2024. Almost all of this
backlog is the result of cases filed since FY 2015.
From FY 2015 through FY 2023, an average of
156,000 affirmative asylum cases were filed per
year, versus an average of 49,000 cases completed.
In FY 2024 through March 31, 2024, 191,000 cases
have been filed versus 78,000 cases completed.
OHSS analysis of USCIS Global Affirmative Data as
of March 31, 2024.
339 See EOIR, Caseload: Pending Cases (Jan. 18,
2024), https://www.justice.gov/eoir/media/1344791/
dl?inline.
340 See id.; EOIR, New Cases and Total
Completions-Historical, https://www.justice.gov/
eoir/media/1344801/dl?inline (Jan. 18, 2024).
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expected to be encountered at POEs
after making appointments though the
CBP One app.341 Even at the low end of
such projections, such a volume of
encounters would likely result in
thousands of migrants per day being
referred to section 240 removal
proceedings; their cases would further
exacerbate the immigration court
backlog and perceived incentives to
migrate irregularly, and would take
many years to complete. Such harms
would be mitigated by the additional
measures put in place by this rule. If
implementation of the rule is delayed,
by contrast, the harms of such an
increase would be immediate and
substantial, even if such an increase
would only last for the months needed
to complete a very rapid notice-andcomment rulemaking. Thus, it is
impracticable to delay the measures in
this rule for even a few months to allow
for notice and an opportunity to
comment and a delayed effective date.
In the interim, the heightened levels of
migration and forced displacement that
have resulted in the President’s
determination to apply the suspension
and limitation on entry and the
Departments adopting the provisions in
this rule would further strain resources,
risk overcrowding in USBP stations and
border POEs in ways that pose
significant health and safety concerns,
and create a situation in which large
numbers of migrants 342—only a small
proportion of whom are likely to be
granted asylum or other protection—
would be encouraged to put their lives
in the hands of dangerous organizations
to make the hazardous journey north
based on a perceived lack of immediate
consequences. The Departments must
immediately safeguard their ability to
enforce our Nation’s immigration laws
in a timely way and at the scale
necessary with respect to those who
seek to enter without complying with
our laws. This rule does just that.
Furthermore, current trends in
migration, including through the Darién
jungle between Colombia and Panama,
indicate that a significant increase in
encounters may be imminent. Between
341 OHSS Encounter Projections, April 2024. Note
that the OHSS encounter projection excludes
encounters of people who have registered with the
CBP One app along with administrative encounters
at POEs (i.e., encounters in which removal
proceedings are not considered), but includes nonCBP One enforcement encounters at POEs, which
have averaged about 190 per day since May 2023.
See also CBP, CBP OneTM Appointments Increased
to 1,450 Per Day (June 30, 2023), https://
www.cbp.gov/newsroom/national-media-release/
cbp-one-appointments-increased-1450-day (last
modified July 14, 2023).
342 Decl. of Matthew J. Hudak, Florida v.
Mayorkas, No. 3:22–cv–9962 (N.D. Fla. May 12,
2023) (Dkt. 13–1).
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48763
January and April 2024, UNHCR tracked
139,000 irregular entries, up from
128,000 for the same months in 2023
and a seven-fold increase over that
period in 2022.343 And the Departments
believe that most of those migrants are
on their way to seek entry into the
United States.344 Based on historical
trends, the Departments expect that
many of these migrants may already be
proximate to the SWB, giving the
Departments insufficient time to seek
public comment and delay the effective
date of this rule without immediate and
substantial harm to U.S. interests.
Indeed, as of May 2024, CBP estimates
that there are more than 40,000 nonMexican migrants in northern Mexico,
proximate to the SWB, in addition to
more than 100,000 such migrants in
central and southern Mexico. These
343 See
supra note 122.
Sergio Martı́nez-Beltrán, Despite a
Fortified Border, Migrants Will Keep Coming,
Analysts Agree. Here’s Why., NPR, (Apr. 22, 2024),
https://www.npr.org/2024/04/22/1244381584/
immigrants-border-mexico-asylum-illegalimmigration (‘‘[Analysts] keep a close eye on the
Darién Gap in Panama and the borders between
Central American countries, two key points to
gauge the number of people venturing up north. ‘In
most countries (outward) migration has increased
. . . particularly in Venezuela, and that’s not really
reflected yet in the U.S. numbers,’ said [one
analyst]. . . . Despite Mexico’s cracking down on
migrants, [the analyst] said people are still making
their way up north, even if they need to pause for
months at different points during their journey.
‘There must be a huge number of people from
Venezuela bottled up in Mexico right now,’ he
said.’’); Diana Roy, Crossing the Darién Gap:
Migrants Risk Death on the Journey to the U.S.,
Council on Foreign Rels. (Feb. 1, 2024), https://
www.cfr.org/article/crossing-darien-gap-migrantsrisk-death-journey-us (‘‘The surge across the Darién
Gap is reflected in an influx at the southern U.S.
border, where U.S. border authorities reported that
they apprehended close to 2.5 million people
during fiscal year 2023, a record high, while
northern cities such as New York are also struggling
to manage the arrivals.’’); Mallory Moench, Volume
of Migrants Crossing the Dangerous Darién Gap Hit
Record High in 2023, Time (Dec. 22, 2023), https://
time.com/6547992/migrants-crossing-darien-gap2023/ (‘‘Laurent Duvillier, UNICEF’s spokesperson
for Latin America and the Caribbean based in
Panama, tells TIME that many—driven to leave
their homes by poverty, crime, or discrimination—
aim to seek asylum in the U.S. or Canada, though
they may never get there. This analysis is supported
by refugee protection organization HIAS, with a
spokesperson telling TIME that, by the group’s
estimations, between 90 to 95% of those crossing
the Darién Gap aim to reach the U.S.’’); Ariel G.
Ruiz Soto, Record-Breaking Migrant Encounters at
the U.S.-Mexico Border Overlook the Bigger Story,
Migration Pol’y Inst. (Oct. 2022), https://
www.migrationpolicy.org/news/2022-recordmigrant-encounters-us-mexico-border (‘‘Record
flows of extracontinental migrants through the
Darien Gap jungle that connects Colombia to
Panama foreshadow increases in migration through
Central America and Mexico. The 28,000
Venezuelan migrants who trekked through the
deadly jungle in August were mostly en route to the
United States; with more than 34,000 Venezuelans
recorded at the Darien Gap in September, it is very
likely that many of them will be reaching the U.S.Mexico border soon.’’).
344 See
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numbers show that a very large number
of migrants would likely have the ability
and the incentive to travel to the U.S.
border, and the Departments assess that
announcing this rule in advance would
likely yield the type of surges described
in connection with prior changes in
significant border policies affecting the
availability of asylum for large numbers
of migrants. For these reasons,
consistent with the President’s
judgment, and given the emergency
circumstances facing the Departments,
the Departments assess that it would be
impracticable to delay the policies set
forth in this rule to allow time to
complete notice-and-comment
rulemaking or delay the rule’s effective
date.
Second, under the ‘‘contrary to the
public interest’’ prong of the good cause
exception, it has long been recognized
that agencies may use the good cause
exception, and need not take public
comment in advance, where significant
public harm would result from the
notice-and-comment process.345 If, for
example, advance notice of a coming
price increase would immediately
produce market dislocations and lead to
serious shortages, advance notice need
not be given.346 A number of cases
follow this logic in the context of
economic regulation.347 The same logic
345 See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d
87, 95 (D.C. Cir. 2012) (noting that the ‘‘contrary to
the public interest’’ prong of the ‘‘good cause’’
exception ‘‘is appropriately invoked when the
timing and disclosure requirements of the usual
procedures would defeat the purpose of the
proposal—if, for example, announcement of a
proposed rule would enable the sort of financial
manipulation the rule sought to prevent . . . [or] in
order to prevent the amended rule from being
evaded’’ (cleaned up)); DeRieux v. Five Smiths, Inc.,
499 F.2d 1321, 1332 (Temp. Emer. Ct. App. 1974)
(‘‘[W]e are satisfied that there was in fact ‘good
cause’ to find that advance notice of the freeze was
‘impracticable, unnecessary, or contrary to the
public interest’ within the meaning of
§ 553(b)(B). . . . Had advance notice issued, it is
apparent that there would have ensued a massive
rush to raise prices and conduct ‘actual
transactions’—or avoid them—before the freeze
deadline.’’).
346 See, e.g., Nader v. Sawhill, 514 F.2d 1064,
1068 (Temp. Emer. Ct. App. 1975) (‘‘[W]e think
good cause was present in this case based upon [the
agency’s] concern that the announcement of a price
increase at a future date could have resulted in
producers withholding crude oil from the market
until such time as they could take advantage of the
price increase.’’ (quotation marks omitted)).
347 See, e.g., Chamber of Com. of U.S. v. S.E.C.,
443 F.3d 890, 908 (D.C. Cir. 2006) (‘‘The [‘good
cause’] exception excuses notice and comment in
emergency situations, where delay could result in
serious harm, or when the very announcement of
a proposed rule itself could be expected to
precipitate activity by affected parties that would
harm the public welfare.’’ (citations omitted));
Mobil Oil Corp. v. Dep’t of Energy, 728 F.2d 1477,
1492 (Temp. Emer. Ct. App. 1983) (‘‘On a number
of occasions . . . , this court has held that, in
special circumstances, good cause can exist when
the very announcement of a proposed rule itself can
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applies here, where the Departments are
responding to exceedingly serious
challenges at the border, and advance
announcement of this response—which
will increase the Departments’ ability to
swiftly process and remove, as
appropriate, more noncitizens who
enter the United States irregularly—
would significantly increase the
incentive, on the part of migrants and
others (such as smugglers), to engage in
actions that would compound those
very challenges. For the same reasons,
‘‘the [need] for immediate
implementation’’ outweighs the
‘‘principles’’ underlying the
requirement for a 30-day delay in the
effective date, justifying the
Departments’ finding of good cause to
forego it.348 The Departments’
experience has been that in some
circumstances when official public
announcements have been made
regarding significant upcoming changes
in immigration laws and procedures
that would impact how individuals are
processed at the border, such as changes
that restrict access to immigration
benefits to those attempting to enter the
United States along the U.S.-Mexico
land border, there have been dramatic
increases in the numbers of noncitizens
who enter or attempt to enter the United
States—including, most recently, in the
days preceding the lifting of the Title 42
public health Order in May 2023.349
This is not only because, generally,
would-be migrants respond to real and
perceived incentives created by border
management and immigration policies,
such that many choose to seek entry
under a border processing regime they
think is preferable, prior to the
implementation of a new system,
including increasing the speed of their
transit north in an effort to arrive before
the implementation of any such
measure. Additionally, smugglers
routinely prey on migrants by spreading
rumors, misrepresenting facts, or
creating a sense of urgency to induce
migrants to make the journey by
overemphasizing the significance of
recent or upcoming policy
developments, among other tactics, and
do so particularly when there is a
change announced in U.S. policy, as
highlighted by the many examples
described below.350
be expected to precipitate activity by affected
parties that would harm the public welfare.’’).
348 Omnipoint Corp. v. FCC, 78 F.3d 620, 630
(D.C. Cir. 1996) (cleaned up).
349 See supra Sections III.B.1 and III.B.2 of this
preamble.
350 See Nick Miroff & Carolyn Van Houten, The
Border is Tougher to Cross Than Ever. But There’s
Still One Way into America, Wash. Post (Oct. 24,
2018), https://www.washingtonpost.com/world/
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The acuteness of such concerns is
borne out by the facts. An influx of
migrants occurred 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,
2022.351 Leading up to the Order’s
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.352 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. 88 FR at 31315. In
that one-month period following the
court decision, total CBP encounter
rates jumped from an average of 7,800
per week (in mid-November) to over
9,100 per week (in mid-December), a
change not predicted by normal
seasonal effects.353
Similarly, on February 28, 2020, the
Ninth Circuit lifted a stay of a
national-security/theres-still-one-way-into-america/
2018/10/24/d9b68842-aafb-11e8-8f4baee063e14538_story.html; Valerie Gonzalez,
Migrants rush across US border in final hours
before Title 42 expires, AP News (May 11, 2023),
https://apnews.com/article/immigration-bordertitle-42-mexico-asylum8c239766c2cb6e257c0220413b8e9cf9 (‘‘Even as
migrants were racing to reach U.S. soil before the
rules expire, Mexican President Andrés Manuel
López Obrador said smugglers were sending a
different message. He noted an uptick in smugglers
at his country’s southern border offering to take
migrants to the United States and telling them the
border was open starting Thursday.’’).
The Departments recognize that there has been
reporting on the possibility of the policies set forth
in the Proclamation and this IFR since February
with no apparent month-over-month increase in
encounters. See, e.g., Myah Ward, Biden
considering major new executive actions for
migrant crisis, Politico (Feb. 21, 2024), https://
www.politico.com/news/2024/02/21/bidenconsidering-major-new-executive-actions-forsouthern-border-00142524. But such reporting
about vague, possible plans differs significantly
from officially proposed policy changes with
timelines provided for implementation, such as
those mentioned below.
351 See Huisha-Huisha v. Mayorkas, 642 F. Supp.
3d 1 (D.D.C. 2022), stay granted, Arizona v.
Mayorkas, __S. Ct. __, 2022 WL 17750015 (U.S. Dec.
19, 2022); 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.
352 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.
353 OHSS analysis of March 2024 OHSS Persist
Dataset. Month-over-month change from November
to December for all of FY 2013 to FY 2022 averaged
negative two percent.
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nationwide injunction of the Migrant
Protection Protocols (‘‘MPP’’), a program
implementing the Secretary’s
contiguous return authority under
section 235(b)(2)(C) of the INA, 8 U.S.C.
1225(b)(2)(C).354 Almost immediately,
hundreds of migrants began massing at
POEs across the southern border and
attempting to immediately enter the
United States, creating a severe safety
hazard that forced CBP to temporarily
close POEs in whole or in part.355 Many
others requested immediate entry into
the country through their counsel, while
others attempted to illegally cross the
southern border between the POEs.356
Absent immediate and resourceintensive action taken by CBP, the
number of migrants gathered at the
border, whether at or between the POEs,
could have increased dramatically,
especially considering there were
approximately 25,000 noncitizens who
were in removal proceedings pursuant
to MPP without scheduled court
appearances, as well as others in Mexico
who could have become aware of CBP’s
operational limitations and sought to
exploit them.357 And while CBP officers
took action to resolve the sudden influx
of migrants at multiple POEs and
prevent further deterioration of the
situation at the border, in doing so they
were diverted away from other critical
responsibilities of protecting national
security, detecting and confiscating
illicit materials, and guarding efficient
trade and travel.358
This same phenomenon occurred in
the days leading up to the end of the
Title 42 public health Order on May 12,
2023, when DHS saw a historic surge in
migration as smugglers falsely
advertised that those arriving before the
Order ended and the Circumvention of
Lawful Pathways rule took effect would
be allowed to remain in the United
States.359 This surge culminated with
354 See Innovation Law Lab v. Wolf, 951 F.3d
1073, 1077, 1095 (9th Cir. 2020), vacated as moot
sub nom. Innovation Law Lab v. Mayorkas, 5 F.4th
1099 (9th Cir. 2021).
355 See Decl. of Robert E. Perez ¶¶ 4–15,
Innovation Law Lab, No. 19–15716 (9th Cir. Mar. 3,
2020) (Dkt. 95–2).
356 Id. ¶¶ 4, 8.
357 Id. ¶ 14.
358 Id. ¶ 15.
359 Decl. of Blas Nuñez-Neto ¶ 9, E. Bay Sanctuary
Covenant v. Biden, No. 4:18–cv–06810–JST (N.D.
Cal. June 16, 2023) (Dkt. 176–2). Conversely, as
noted above, smugglers also messaged that the
border would be open starting on May 12. See
Valerie Gonzalez, Migrants rush across US border
in final hours before Title 42 expires, AP News
(May 11, 2023), https://apnews.com/article/
immigration-border-title-42-mexico-asylum8c239766c2cb6e257c0220413b8e9cf9. This
conflicting messaging underscores smuggling
organizations’ tendency to deceptively message on
changes in border policy to lure vulnerable
migrants to pay for their services.
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what were then the highest recorded
USBP encounter levels in U.S. history
over the days immediately preceding
May 12, which placed significant strain
on DHS’s operational capacity at the
border.360 Encounters between POEs
(which excludes arrival of inadmissible
individuals scheduled through the CBP
One app, who appear at POEs) almost
doubled from an average of
approximately 4,900 per day the week
ending April 11, 2023, to an average of
approximately 9,500 per day the week
ending May 11, 2023, including an
average of approximately 10,000 daily
encounters immediately preceding the
termination of the public health Order
(from May 8 to May 11).361 The sharp
increase in USBP encounters during the
30 days preceding May 12 represented
the largest month-over-month increase
in almost two decades—since January
2004.362
Meanwhile, the current backlogs and
inefficiencies in our border security and
immigration systems render DHS unable
to effect removals and apply
consequences at a sufficient scale to
deter migration by those whose claims
may not ultimately succeed.363 This,
too, serves as an incentive for migrants
to take a chance. And sudden influxes,
which result in part from smugglers’
deliberate actions, overload scarce
United States Government resources
dedicated to border security that, as
reflected above, are already stretched
extremely thin.364 This rule is
specifically designed to allow the
United States Government to deliver
consequences more swiftly, and with a
reduced resource burden, during such
an influx.
In a more manageable steady-state
environment, when encounters surge in
specific sectors, DHS manages its
detention capacity using the other tools
at its disposal, such as lateral
decompression flights and similar
efforts.365 But the increase in SWB
encounters preceding the end of the
Title 42 public health Order and the
increase in border encounters that
occurred in December 2023 were farreaching across multiple sectors of the
SWB and significantly greater than what
360 Decl. of Blas Nuñez-Neto ¶ 9, E. Bay Sanctuary
Covenant v. Biden, No. 4:18–cv–6810–JST (N.D.
Cal. June 16, 2023) (Dkt. 176–2).
361 Id.
362 Id.
363 See EOIR, Adjudication Statistics: Pending
Cases (Jan. 18, 2024), https://www.justice.gov/eoir/
media/1344791/dl?inline.
364 Decl. of Enrique Lucero ¶¶ 6–8, Innovation
Law Lab v. Wolf, No. 19–15716 (9th Cir. Mar. 3,
2020) (Dkt. 95–3); Decl. of Robert E. Perez ¶ 15,
Innovation Law Lab, No. 19–15716 (9th Cir. Mar. 3,
2020) (Dkt. 95–2).
365 See 88 FR at 11715.
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48765
DHS resources and operations are
designed to handle. They raised
detention capacity concerns anew. At
that point, DHS faced an urgent
situation, including a significant risk of
overcrowding in its facilities. Given the
nature of its facilities, increased
numbers and times in custody increase
the likelihood that USBP facilities will
become quickly overcrowded.366
Crowding, particularly given the way
that USBP facilities are necessarily
designed, increases the potential risk of
health and safety concerns for
noncitizens and Government
personnel.367
The Departments assess that there
would be a significant risk of such an
urgent situation occurring if they
undertook notice-and-comment
procedures for this rule or delayed its
effective date. As demonstrated by the
Departments’ experience with the end of
the Title 42 public health Order and
MPP, significant shifts in U.S. border
policies lead to an increase in migrants
coming to the SWB that risks
overwhelming the Departments’
resources and operations. This rule is
likewise a significant shift in U.S.
border policy that affects the vast
majority of noncitizens arriving at the
southern border who do not have
documents sufficient for lawful
admission—a shift that may be viewed
as similar to the end of the Title 42
public health Order and MPP. In
addition, unlike the Lawful Pathways
rebuttable presumption, the limitation
on asylum eligibility in this rule would
affect Mexican migrants, which may
provide an additional perceived
incentive for such migrants—who
constitute a large and geographically
proximate potential population 368—to
rush to the border during a notice-andcomment period. Finally, such a surge
in migration would come at a time when
our border security and immigration
systems’ resources are already stretched
thin and severely backlogged.369
366 Decl. of Matthew J. Hudak ¶¶ 6, 14, 17, Florida
v. Mayorkas, No. 3:22–cv–9962 (N.D. Fla. May 12,
2023) (Dkt. 13–1).
367 Id. ¶ 17.
368 U.S. Census Bureau, Mexico, https://
www.census.gov/popclock/world/mx (last visited
May 27, 2024).
369 See, e.g., Ariel G. Ruiz-Soto et al., Shifting
Realities at the U.S.-Mexico Border: Immigration
Enforcement and Control in a Fast-Evolving
Landscape, Migration Pol’y Inst., at 1 (rev. Jan.
2024), https://www.migrationpolicy.org/sites/
default/files/publications/mpi-contemporaryborder-policy-2024_final.pdf (‘‘Insufficiently
equipped to respond effectively to these and likely
future changes, U.S. immigration agencies must
perpetually react and shift operations according to
their strained capacity and daily changes in migrant
arrivals.’’); The White House, Fact Sheet: White
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Therefore, the Departments believe that
a gap between when this rule is made
public and when it becomes effective
would create the same incentive for
migrants to come to the United States
before the rule takes effect.
The Departments’ determination here
is consistent with past practice. For
example, in the Circumvention of
Lawful Pathways rule, the Departments
undertook a notice-and-comment
rulemaking while the Title 42 public
health Order remained in effect,370 but
invoked the good cause exception (as
well as the foreign affairs exception) to
bypass a delayed effective date that
would have resulted in a gap between
the end of the Title 42 public health
Order and the implementation of the
rule. See 88 FR at 31445–47. The
Departments noted that such a gap
‘‘would likely result in a significant
further increase in irregular migration,’’
and that such an increase, ‘‘exacerbated
by an influx of migrants from countries
such as Venezuela, Nicaragua, and
Cuba, with limited removal options, and
coupled with DHS’s limited options for
processing, detaining, or quickly
removing such migrants, would unduly
impede DHS’s ability to fulfill its
critical and varied missions.’’ Id. at
31445.
Similarly, when implementing the
parole process for Venezuelans, DHS
implemented the process without prior
public procedures,371 and witnessed a
drastic reduction in irregular migration
by Venezuelans.372 The process by
which eligible Venezuelans could
receive advance travel authorization to
present at a POE was accompanied by
a policy that those who entered the
United States outside this process or
who entered Mexico illegally after the
House Calls on Congress To Advance Critical
National Security Priorities (Oct. 20, 2023), https://
www.whitehouse.gov/briefing-room/statementsreleases/2023/10/20/fact-sheet-white-house-callson-congress-to-advance-critical-national-securitypriorities/; Letter for Kevin McCarthy, Speaker of
the House of Representatives, from Shalanda D.
Young, Director, Office and Management Budget
(Aug. 10, 2023), https://www.whitehouse.gov/wpcontent/uploads/2023/08/Final-SupplementalFunding-Request-Letter-and-TechnicalMaterials.pdf.
370 The Departments noted, however, that the
Circumvention of Lawful Pathways rule was
exempt from notice-and-comment requirements
pursuant to the good cause exception at 5 U.S.C.
553(b)(B) for the same reasons that the rule was
exempt from delayed effective date requirements
under 5 U.S.C. 553(d). See 88 FR at 31445 n.377.
371 See DHS, Implementation of a Parole Process
for Venezuelans, 87 FR 63507 (Oct. 19, 2022).
372 See 88 FR at 31317 (‘‘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.’’).
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date of announcement would be
ineligible for parole under this process,
and was conditioned on Mexico
continuing to accept the expulsion or
removal of Venezuelan nationals
seeking to irregularly enter the United
States between POEs. See 87 FR at
63508. Thus, had the parole process
been announced prior to a lengthy
notice-and-comment period, it likely
would have resulted in thousands of
Venezuelan nationals attempting to
cross the United States and Mexican
borders before the ineligibility criteria
went into effect, and before the United
States was able to return Venezuelan
nationals to Mexico in large numbers.
DHS also concluded in January 2017
that it was imperative to give immediate
effect to a rule designating Cuban
nationals arriving by air as eligible for
expedited removal because ‘‘[p]repromulgation notice and comment
would . . . endanger[ ] human life and
hav[e] a potential destabilizing effect in
the region.’’ 373 DHS cited the prospect
that ‘‘publication of the rule as a
proposed rule, which would signal a
significant change in policy while
permitting continuation of the exception
for Cuban nationals, could lead to a
surge in migration of Cuban nationals
seeking to travel to and enter the United
States during the period between the
publication of a proposed and a final
rule.’’ 374 DHS found that ‘‘[s]uch a
surge would threaten national security
and public safety by diverting valuable
Government resources from
counterterrorism and homeland security
responsibilities,’’ ‘‘could also have a
destabilizing effect on the region, thus
weakening the security of the United
States and threatening its international
relations,’’ and ‘‘could result in
significant loss of human life.’’ 375
Given the urgent circumstances facing
the Departments, the delays associated
with requiring a notice-and-comment
process for this rule would be contrary
to the public interest because an
advance announcement of the rule
would incentivize even more irregular
migration by those seeking to enter the
United States before the IFR would take
effect.
373 DHS, Eliminating Exception to Expedited
Removal Authority for Cuban Nationals Arriving by
Air, 82 FR 4769, 4770 (Jan. 17, 2017).
374 Id.
375 Id.; accord U.S. Dep’t of State, Visas:
Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended, 81
FR 5906, 5907 (Feb. 4, 2016) (finding the good
cause exception applicable because of short-run
incentive concerns).
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B. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory
Review)
Executive Order 12866 (‘‘Regulatory
Planning and Review’’), as amended by
Executive Order 14094 (‘‘Modernizing
Regulatory Review’’), and Executive
Order 13563 (‘‘Improving Regulation
and Regulatory Review’’), directs
agencies to assess the costs, benefits,
and transfers of available alternatives,
and, if regulation is necessary, to select
regulatory approaches that maximize
net benefits, including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity. Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility.
The Office of Information and
Regulatory Affairs (‘‘OIRA’’) of OMB
reviewed this IFR as a significant
regulatory action under Executive Order
12866, as amended by Executive Order
14094. The estimated effects of the rule
are described and summarized
qualitatively below. Consistent with
OMB Circular A–4, the Departments
assessed the impacts of this rule against
a baseline. The baseline used for this
analysis is the ‘‘no action’’ baseline, or
what the world would be like absent the
rule. For purposes of this analysis, the
Departments assumed that the no-action
baseline involved continued application
of the Circumvention of Lawful
Pathways rule.
The expected effect of this rule, as
discussed above, is primarily to reduce
incentives for irregular migration and
illegal smuggling activity. As a result,
the primary effects of this rule will be
felt by noncitizens outside of the United
States. In addition, for those who are
present in the United States and
described in the Proclamation, the rule
will likely decrease the number of
asylum grants and likely reduce the
amount of time that noncitizens who are
ineligible for asylum and who lack a
reasonable probability of establishing
eligibility for protection from
persecution or torture would remain in
the United States. Noncitizens,
however, can avoid the limitation on
asylum under this rule if they meet an
exception to the rule’s limitation or to
the Proclamation, including by
presenting at a POE pursuant to a prescheduled time and place or by showing
exceptionally compelling
circumstances. Moreover, noncitizens
who in credible fear screenings establish
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a reasonable probability of persecution
or torture would still be able to seek
statutory withholding or CAT protection
in proceedings before IJs.
The benefits of the rule are expected
to include reductions in strains on
limited Federal Government
immigration processing and
enforcement resources; preservation of
the Departments’ continued ability to
safely, humanely, and effectively
enforce and administer the immigration
laws; and a reduction in the role of
exploitative TCOs and smugglers. Some
of these benefits accrue to noncitizens
whose ability to receive timely
decisions on their claims might
otherwise be hampered by the severe
strain that further surges in irregular
migration would impose on the
Departments.
The direct costs of the rule are borne
by noncitizens and the Departments. To
the extent that any noncitizens are made
ineligible for asylum by virtue of the
rule but would have received asylum in
the absence of this rule, such an
outcome would entail the denial of
asylum and its attendant benefits,
although such persons may continue to
be eligible for statutory withholding of
removal and withholding under the
CAT. Unlike asylees, noncitizens
granted these more limited forms of
protection do not have a path to
citizenship and cannot petition for
certain family members to join them in
the United States. Such noncitizens may
also be required to apply for work
authorization more frequently than an
asylee would. As discussed in this
preamble, the rule’s manifestation of
fear and reasonable probability
standards may also engender a risk that
some noncitizens with meritorious
claims may not be referred for credible
fear interviews or to removal
proceedings to seek protection. In these
cases, there may be costs to noncitizens
that result from their removal.
The rule may also require additional
time for AOs and IJs, during credible
fear screenings and reviews,
respectively, to inquire into the
applicability of the rule and the
noncitizen’s fear claim. Similarly, the
rule will require additional time for IJs
during section 240 removal proceedings.
However, as discussed throughout this
preamble, the rule is expected to result
in significantly reduced irregular
migration. Accordingly, the
Departments expect the additional time
spent by AOs and IJs on implementation
of the rule to be mitigated by a
comparatively smaller number of
credible fear cases than AOs and IJs
would otherwise have been required to
handle in the absence of the rule.
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Other entities may also incur some
indirect, downstream costs as a result of
the rule. The nature and scale of such
effects will vary by entity and should be
considered relative to the baseline
condition that would exist in the
absence of this rule, which as noted
above is the continued application of
the Circumvention of Lawful Pathways
rule. As compared to the baseline
condition, this rule is expected to
reduce irregular migration. The
Departments welcome comments on the
effects described above to inform
analysis in a final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’), as amended by the Small
Business Regulatory Enforcement and
Fairness Act of 1996, requires an agency
to prepare and make available to the
public a final regulatory flexibility
analysis that describes the effect of a
rule on small entities (i.e., small
businesses, small organizations, and
small governmental jurisdictions) when
the agency was required ‘‘to publish a
general notice of proposed rulemaking’’
prior to issuing the final rule. See 5
U.S.C. 604(a). Because this IFR is being
issued without a prior proposal, on the
grounds set forth above, a regulatory
flexibility analysis is not required under
the RFA.
D. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (‘‘UMRA’’) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and Tribal governments.
Title II of the UMRA requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed rule, or
final rule for which the agency
published a proposed rule, that includes
any Federal mandate that may result in
a $100 million or more expenditure
(adjusted annually for inflation) in any
one year by State, local, and Tribal
governments, in the aggregate, or by the
private sector. The term ‘‘Federal
mandate’’ means a Federal
intergovernmental mandate or a Federal
private sector mandate. See 2 U.S.C.
658(6), 1502(1). A ‘‘Federal
intergovernmental mandate,’’ in turn, is
a provision that would impose an
enforceable duty upon State, local, or
Tribal governments (except as a
condition of Federal assistance or a duty
arising from participation in a voluntary
Federal program). See id. 658(5). And
the term ‘‘Federal private sector
mandate’’ refers to a provision that
would impose an enforceable duty upon
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48767
the private sector (except as a condition
of Federal assistance or a duty arising
from participation in a voluntary
Federal program). See id. 658(7).
This IFR is not subject to the UMRA
because the Departments did not
publish a proposed rule prior to this
action. In addition, this rule does not
contain a Federal mandate, because it
does not impose any enforceable duty
upon any other level of government or
private sector entity. Any downstream
effects on such entities would arise
solely due to an entity’s voluntary
choices, and the voluntary choices of
others, and would not be a consequence
of an enforceable duty imposed by this
rule. Similarly, any costs or transfer
effects on State and local governments
would not result from a Federal
mandate as that term is defined under
UMRA. The requirements of title II of
the UMRA, therefore, do not apply, and
the Departments have not prepared a
statement under the UMRA.
E. Congressional Review Act
OMB has determined that this rule
does not meet the criteria set forth in 5
U.S.C. 804(2). The rule will be
submitted to Congress and the
Government Accountability Office
consistent with the Congressional
Review Act’s requirements no later than
its effective date.
F. Executive Order 13132 (Federalism)
This rule would not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice
Reform)
This IFR meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Family Assessment
The Departments have reviewed this
rule in line with the requirements of
section 654 of the Treasury and General
Government Appropriations Act, 1999,
enacted as part of the Omnibus
Consolidated and Emergency
Supplemental Appropriations Act,
1999. The Departments have reviewed
the criteria specified in section
654(c)(1), by evaluating whether this
regulatory action (1) impacts the
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stability or safety of the family,
particularly in terms of marital
commitment; (2) impacts the authority
of parents in the education, nurture, and
supervision of their children; (3) helps
the family perform its functions; (4)
affects disposable income or poverty of
families and children; (5) only
financially impacts families, if at all, to
the extent such impacts are justified; (6)
may be carried out by State or local
governments or by the family; or (7)
establishes a policy concerning the
relationship between the behavior and
personal responsibility of youth and the
norms of society. If the agency
determines a regulation may negatively
affect family well-being, then the agency
must provide an adequate rationale for
its implementation.
The Departments have determined
that the implementation of this rule will
not impose a negative impact on family
well-being or the autonomy or integrity
of the family as an institution.
I. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This rule would not have Tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it would not have a substantial
direct effect on one or more Indian
Tribes, on the relationship between the
Federal Government and Indian Tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
J. National Environmental Policy Act
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DHS and its components analyze
actions to determine whether the
National Environmental Policy Act of
1969 (‘‘NEPA’’), 42 U.S.C. 4321 et seq.,
applies to these actions and, if so, what
level of NEPA review is required. 42
U.S.C. 4336. DHS’s Directive 023–01,
Revision 01 376 and Instruction Manual
023–01–001–01, Revision 01
(‘‘Instruction Manual 023–01’’) 377
establish the procedures that DHS uses
to comply with NEPA and the Council
on Environmental Quality (‘‘CEQ’’)
376 DHS, Implementation of the National
Environmental Policy Act, Directive 023–01,
Revision 01 (Oct. 31, 2014), https://www.dhs.gov/
sites/default/files/publications/DHS_
Directive%20023-01%20Rev%2001_
508compliantversion.pdf.
377 DHS, Implementation of the National
Environmental Policy Act (NEPA), Instruction
Manual 023–01–001–01, Revision 01 (Nov. 6, 2014),
https://www.dhs.gov/sites/default/files/
publications/DHS_Instruction%20Manual%2002301-001-01%20Rev%2001_
508%20Admin%20Rev.pdf.
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regulations for implementing NEPA, 40
CFR parts 1500 through 1508.
Federal agencies may establish
categorical exclusions for categories of
actions they determine normally do not
significantly affect the quality of the
human environment and, therefore, do
not require the preparation of an
Environmental Assessment or
Environmental Impact Statement. 42
U.S.C. 4336e(1); 40 CFR 1501.4,
1507.3(e)(2)(ii), 1508.1(d). DHS has
established categorical exclusions,
which are listed in Appendix A of its
Instruction Manual 023–01. Under
DHS’s NEPA implementing procedures,
for an action to be categorically
excluded, it must satisfy each of the
following three conditions: (1) the entire
action clearly fits within one or more of
the categorical exclusions; (2) the action
is not a piece of a larger action; and (3)
no extraordinary circumstances exist
that create the potential for a significant
environmental effect.378
The IFR effectuates the following
three changes to the process for those
seeking asylum, withholding of
removal, or protection under the CAT
during emergency border circumstances:
• For those who enter across the
southern border during emergency
border circumstances and are not
described in section 3(b) of the
Proclamation, rather than asking
specific questions of every noncitizen
encountered and processed for
expedited removal to elicit whether the
noncitizen may have a fear of
persecution or an intent to apply for
asylum, DHS will provide general notice
regarding the processes for seeking
asylum, withholding of removal, and
protection under the CAT, and will only
refer a noncitizen for credible fear
screenings if the noncitizen manifests a
fear of return, or expresses an intention
to apply for asylum or protection,
expresses a fear of persecution or
torture, or expresses a fear of return to
his or her country or the country of
removal.
• During emergency border
circumstances, persons who enter the
United States across the southern border
and who are not described in paragraph
3(b) of the Proclamation will be
ineligible for asylum unless they
demonstrate by a preponderance of the
evidence that exceptionally compelling
circumstances exist, including if the
noncitizen demonstrates that they or a
member of their family as described in
8 CFR 208.30(c) with whom they are
traveling: (1) faced an acute medical
emergency; (2) faced an imminent and
378 Instruction Manual 023–01 at V.B(2)(a)
through (c).
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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.
• The limitation on asylum eligibility
will be applied during credible fear
interviews and reviews, and those who
enter across the southern border during
emergency border circumstances and
who are not described in section 3(b) of
the Proclamation and do not establish
exceptionally compelling circumstances
will receive a negative credible fear
determination with respect to asylum
and will thereafter be screened for a
reasonable probability of persecution
because of a protected ground or torture,
a higher standard than that applied to
noncitizens in a similar posture under
the Circumvention of Lawful Pathways
rule.
Given the nature of the IFR, it is
categorically excluded from DHS’s
NEPA implementing procedures, as it
satisfies all three relevant conditions.
First, the Departments have determined
that the IFR fits clearly within
categorical exclusions A3(a) and (d) of
DHS’s Instruction Manual 023–01,
Appendix A, for the promulgation of
rules of a ‘‘strictly administrative or
procedural nature’’ and rules that
‘‘interpret or amend an existing
regulation without changing its
environmental effect,’’ respectively. The
IFR changes certain administrative
procedures relating to the processing of
certain noncitizens during emergency
border circumstances, and does not
result in a change in environmental
effect. Second, this IFR is a standalone
rule and is not part of any larger action.
Third, the Departments are not aware of
any extraordinary circumstances that
would cause a significant environmental
impact. Therefore, this IFR is
categorically excluded, and no further
NEPA analysis or documentation is
required. DOJ is adopting the DHS
determination that this IFR is
categorically excluded under A3(a) and
A3(d) of DHS’s Instruction Manual 023–
01, Appendix A, because the IFR’s
asylum limitation and the reasonable
probability standard will be applied by
EOIR in substantially the same manner
as it will be applied by DHS. See 40 CFR
1506.3(d) (setting forth the ability of an
agency to adopt another agency’s
categorical exclusion determination).
K. Paperwork Reduction Act
This IFR does not adopt new, or
revisions to existing, ‘‘collection[s] of
information’’ as that term is defined
under the Paperwork Reduction Act of
1995, Public Law 104–13, 109 Stat. 163,
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44 U.S.C. chapter 35, and its
implementing regulations, 5 CFR part
1320.
Subpart D—Eligibility for Aliens Who
Enter the United States During
Emergency Border Circumstances
List of Subjects
§ 208.35 Limitation on asylum eligibility
and credible fear procedures for those who
enter the United States during emergency
border circumstances.
8 CFR Part 208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
8 CFR Part 235
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
8 CFR Part 1208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
DEPARTMENT OF HOMELAND
SECURITY
Accordingly, for the reasons set forth
in the preamble, the Secretary of
Homeland Security amends 8 CFR parts
208 and 235 as follows:
PART 208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
1. The authority citation for part 208
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
1252, 1282; Title VII of Pub. L. 110–229; 8
CFR part 2; Pub. L. 115–218.
2. In § 208.13, add paragraph (g) to
read as follows:
■
§ 208.13
Establishing asylum eligibility.
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*
*
*
*
*
(g) Entry during emergency border
circumstances. For an alien who entered
the United States across the southern
border (as that term is described in
section 4(d) of the Presidential
Proclamation of June 3, 2024, Securing
the Border) between the dates described
in section 1 of such Proclamation and
section 2(a) of such Proclamation (or the
revocation of such Proclamation,
whichever is earlier), or between the
dates described in section 2(b) of such
Proclamation and section 2(a) of such
Proclamation (or the revocation of such
Proclamation, whichever is earlier),
refer to the provisions on asylum
eligibility described in § 208.35.
3. Add subpart D, consisting of
§ 208.35, to read as follows:
■
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Notwithstanding any contrary section
of this part, including §§ 208.2, 208.13,
208.30, and 208.33—
(a) Limitation on eligibility. (1)
Applicability. An alien who is described
in § 208.13(g) and who is not described
in section 3(b) of the Presidential
Proclamation of June 3, 2024, Securing
the Border, is ineligible for asylum.
(2) Exceptions. (i) This limitation on
eligibility does not apply if the alien
demonstrates by a preponderance of the
evidence that exceptionally compelling
circumstances exist, including if the
alien, or the alien’s family member as
described in § 208.30(c) with whom the
alien is traveling, demonstrates by a
preponderance of the evidence that, at
the time of entry, the alien or a member
of the alien’s family as described in
§ 208.30(c) with whom the alien is
traveling:
(A) Faced an acute medical
emergency;
(B) Faced an imminent and extreme
threat to life or safety, such as an
imminent threat of rape, kidnapping,
torture, or murder; or
(C) Satisfied the definition of ‘‘victim
of a severe form of trafficking in
persons’’ provided in § 214.11 of this
chapter.
(ii) An alien who demonstrates by a
preponderance of the evidence any of
the circumstances in paragraph (a)(2)(i)
of this section shall necessarily establish
exceptionally compelling
circumstances.
(iii) An alien described in section 3(b)
of the Presidential Proclamation of June
3, 2024, Securing the Border, or who
establishes exceptionally compelling
circumstances under paragraph (a)(2)(i)
of this section has established
exceptionally compelling circumstances
under § 208.33(a)(3).
(b) Application in credible fear
determinations. (1) Initial
determination. The asylum officer shall
first determine whether the alien is
subject to the limitation on asylum
eligibility under paragraph (a) of this
section.
(i) Where the asylum officer
determines that the alien is subject to
the limitation on asylum eligibility
under paragraph (a) of this section, then
the asylum officer shall enter a negative
credible fear determination with respect
to the alien’s asylum claim and continue
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48769
to consider the alien’s claim under
paragraph (b)(2) of this section.
(ii) Where the asylum officer
determines that the alien is not subject
to the limitation on asylum eligibility
under paragraph (a) of this section
because the alien is not described in
§ 208.13(g), the asylum officer shall
follow the procedures in § 208.33(b).
(iii) Where the asylum officer
determines that the alien is not subject
to the limitation on asylum eligibility
under paragraph (a) of this section
because the alien is described in section
3(b) of the Proclamation or is excepted
from the limitation on asylum eligibility
under paragraph (a)(2) of this section,
the asylum officer shall follow the
procedures in § 208.30.
(2) Protection eligibility screening. (i)
In cases in which the asylum officer
enters a negative credible fear
determination under paragraph (b)(1)(i)
or (b)(3) of this section, the asylum
officer will assess the alien under the
procedures set forth in § 208.33(b)(2)(i)
except that the asylum officer will apply
a reasonable probability standard. For
purposes of this section, reasonable
probability means substantially more
than a reasonable possibility, but
somewhat less than more likely than
not, that the alien would be persecuted
because of his or her race, religion,
nationality, membership in a particular
social group or political opinion, or
tortured, with respect to the designated
country or countries of removal.
(ii) In cases described in paragraph
(b)(2)(i) or (b)(3) of this section, if the
alien establishes a reasonable
probability of persecution or torture
with respect to the designated country
or countries of removal, the Department
will issue a positive credible fear
determination and follow the
procedures in § 208.30(f). For any case
in which USCIS retains jurisdiction over
the application for asylum pursuant to
§ 208.2(a)(1)(ii) for further consideration
in an interview pursuant to § 208.9,
USCIS may require aliens who received
a negative credible fear determination
with respect to their asylum claim
under paragraph (b)(1)(i) of this section
to submit a Form I–589, Application for
Asylum and for Withholding of
Removal, together with any additional
supporting evidence in accordance with
the instructions on the form, to USCIS
within 30 days from the date of service
of the positive credible fear
determination. The date of service of the
positive credible fear determination
remains the date of filing and receipt of
the asylum application under
§ 208.3(a)(2); however, for any case in
which USCIS requires the alien to
submit a Form I–589, it may extend the
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timelines in § 208.9(a)(1) and (e)(2) by
up to 15 days. If USCIS requires the
alien to submit a Form I–589 and the
alien fails to do so within the applicable
timeline, USCIS shall issue a Form I–
862, Notice to Appear.
(iii) In cases described in paragraph
(b)(2)(i) or (b)(3) of this section, if the
alien fails to establish a reasonable
probability of persecution or torture
with respect to all designated countries
of removal, the asylum officer will
provide the alien with a written notice
of decision and inquire whether the
alien wishes to have an immigration
judge review the negative credible fear
determinations.
(iv) The alien must indicate whether
he or she desires such review on a
Record of Negative Fear Finding and
Request for Review by Immigration
Judge.
(v) Only if the alien requests such
review by so indicating on the Record
of Negative Fear shall the asylum officer
serve the alien with a Notice of Referral
to Immigration Judge. The record of
determination, including copies of the
Notice of Referral to Immigration Judge,
the asylum officer’s notes, the summary
of the material facts, and other materials
upon which the determination was
based shall be provided to the
immigration judge with the negative
determination. Immigration judges will
evaluate the case as provided in 8 CFR
1208.35(b). The case shall then proceed
as set forth in paragraphs (b)(2)(v)(A)
and (B) of this section.
(A) Where the immigration judge
issues a positive credible fear
determination under 8 CFR
1208.35(b)(2)(iii) or (b)(4), the case shall
proceed under 8 CFR
1208.30(g)(2)(iv)(B).
(B) Where the immigration judge
issues a negative credible fear
determination, the case shall be
returned to the Department for removal
of the alien. No appeal shall lie from the
immigration judge’s decision and no
request for reconsideration may be
submitted to USCIS. Nevertheless,
USCIS may, in its sole discretion,
reconsider a negative determination.
(3) Procedures in the absence of the
limitation on asylum eligibility. If the
limitation on asylum eligibility in
paragraph (a) of this section is held to
be invalid or unenforceable by its terms,
or as applied to any person or
circumstance, then during the period(s)
described in § 208.13(g), the asylum
officer shall, as applicable, apply a
reasonable probability screening
standard for any protection screening
under § 208.33(b)(2).
(c) Family unity in the asylum merits
process. In cases where the Department
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retains jurisdiction over the application
for asylum pursuant to § 208.2(a)(1)(ii),
where a principal asylum applicant is
found eligible for withholding of
removal under section 241(b)(3) of the
Act or withholding of removal under
§ 208.16(c)(2) and would be granted
asylum but for the limitation on asylum
in paragraph (a)(1) of this section or
§ 208.33(a), or both, and where an
accompanying spouse or child as
defined in section 208(b)(3)(A) of the
Act does not independently qualify for
asylum or other protection from removal
or the principal asylum applicant has a
spouse or child who would be eligible
to follow to join that applicant as
described in section 208(b)(3)(A) of the
Act, the asylum officer may deem the
principal applicant to have established
exceptionally compelling circumstances
under paragraph (a)(2)(i) of this section
and § 208.33(a)(3)(i).
(d) Continuing applicability of
limitation on eligibility. (1) Subject to
paragraph (d)(2) of this section, the
limitation on asylum eligibility in
paragraph (a) of this section shall apply
to any asylum application filed by an
alien who entered the United States
during the time and in the manner
described in § 208.13(g) and who is not
covered by an exception in paragraph
(d)(2) of this section, regardless of when
the application is filed and adjudicated.
(2) The limitation on asylum
eligibility in paragraph (a) of this
section shall not apply to an alien who
was under the age of 18 at the time of
the alien’s entry, if—
(i) The alien is applying for asylum as
a principal applicant; and
(ii) The asylum application is filed
after the period of time in 208.13(g)
during which the alien entered.
(e) Severability. The Department
intends that in the event that any
provision of this section, § 235.15, or the
Presidential Proclamation of June 3,
2024, Securing the Border, is held to be
invalid or unenforceable by its terms, or
as applied to any person or
circumstance, the provisions of this
section and § 235.15 should be
construed so as to continue to give the
maximum effect to those provisions
permitted by law, unless such holding
is that a provision is wholly invalid and
unenforceable, in which event the
provision should be severed from the
remainder of this section and the
holding should not affect the remainder
of this section or the application of the
provision to persons not similarly
situated or to dissimilar circumstances.
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PART 235—INSPECTION OF PERSONS
APPLYING FOR ADMISSION
4. The authority citation for part 235
continues to read as follows:
■
Authority: 8 U.S.C. 1101 and note, 1103,
1183, 1185 (pursuant to E.O. 13323, 69 FR
241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1365b, 1379,
1731–32; 48 U.S.C. 1806 and notes, 1807, and
1808 (Title VII, Pub. L. 110–229, 122 Stat.
754); 8 U.S.C. 1185 note (sec. 7209, Pub. L.
108–458, 118 Stat. 3638, and Pub. L. 112–54,
125 Stat. 550).
■
5. Add § 235.15 to read as follows:
§ 235.15 Inadmissible aliens and expedited
removal during emergency border
circumstances.
(a) Applicability. Notwithstanding
§§ 235.3(b)(2)(i) and 235.3(b)(4)(i) (but
not § 235.3(b)(4)(ii)), the provisions of
this section apply to any alien described
in § 235.3(b)(1)(i) through (ii) if the alien
is described in § 208.13(g) and is not
described in section 3(b) of the
Presidential Proclamation of June 3,
2024, Securing the Border.
(b) Expedited removal. (1) [Reserved]
(2) Determination of inadmissibility—
(i) Record of proceeding. (A) A
noncitizen who is arriving in the United
States, or other alien as designated
pursuant to § 235.3(b)(1)(ii), who is
determined to be inadmissible under
section 212(a)(6)(C) or 212(a)(7) of the
Act (except an alien for whom
documentary requirements are waived
under § 211.1(b)(3) or § 212.1 of this
chapter) shall be ordered removed from
the United States in accordance with
section 235(b)(1) of the Act. In every
case in which the expedited removal
provisions will be applied and before
removing an alien from the United
States pursuant to this section, the
examining immigration officer shall
create a record of the facts of the case
and statements made by the alien.
(B) The examining immigration officer
shall advise the alien of the charges
against him or her on Form I–860,
Notice and Order of Expedited Removal,
and the alien shall be given an
opportunity to respond to those charges.
After obtaining supervisory concurrence
in accordance with § 235.3(b)(7), the
examining immigration official shall
serve the alien with Form I–860 and the
alien shall sign the form acknowledging
receipt. Interpretative assistance shall be
used if necessary to communicate with
the alien.
(ii) [Reserved]
(iii) [Reserved]
(3) [Reserved]
(4) Claim of asylum or fear of
persecution or torture. (i) If an alien
subject to the expedited removal
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provisions manifests a fear of return, or
expresses an intention to apply for
asylum or protection, expresses a fear of
persecution or torture, or expresses a
fear of return to his or her country or the
country of removal, the inspecting
officer shall not proceed further with
removal of the alien until the alien has
been referred for an interview by an
asylum officer in accordance with part
208 of this chapter.
(A) The inspecting immigration
officer shall document whether the alien
has manifested or affirmatively
expressed such intention, fear, or
concern.
(B) The referring officer shall provide
the alien with a written disclosure
describing the purpose of the referral
and the credible fear interview process;
the right to consult with other persons
prior to the interview and any review
thereof at no expense to the United
States Government; the right to request
a review by an immigration judge of the
asylum officer’s credible fear
determination; and the consequences of
failure to establish a credible fear of
persecution or torture.
(ii) [Reserved]
(c)–(f) [Reserved]
(g) Severability. The Department
intends that in the event that any
provision of paragraphs (a), (b)(2)(i), and
(b)(4) of this section, § 208.35, or the
Presidential Proclamation of June 3,
2024, Securing the Border, is held to be
invalid or unenforceable by its terms, or
as applied to any person or
circumstance, the provisions of this
section and § 208.35 should be
construed so as to continue to give the
maximum effect to those provisions
permitted by law, unless such holding
is that a provision is wholly invalid and
unenforceable, in which event the
provision should be severed from the
remainder of this section and the
holding should not affect the remainder
of this section or the application of the
provision to persons not similarly
situated or to dissimilar circumstances.
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth
in the preamble, the Attorney General
amends 8 CFR part 1208 as follows:
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PART 1208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
6. The authority citation for part 1208
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
1252, 1282; Title VII of Pub. L. 110–229; Pub.
L. 115–218.
7. In § 1208.13, add paragraph (g) to
read as follows:
■
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§ 1208.13
Establishing asylum eligibility.
*
*
*
*
*
(g) Entry during emergency border
circumstances. For an alien who entered
the United States across the southern
border (as that term is described in
section 4(d) of the Presidential
Proclamation of June 3, 2024, Securing
the Border) between the dates described
in section 1 of such Proclamation and
section 2(a) of such Proclamation (or the
revocation of such Proclamation,
whichever is earlier), or between the
dates described in section 2(b) of such
Proclamation and section 2(a) of such
Proclamation (or the revocation of such
Proclamation, whichever is earlier) refer
to the provisions on asylum eligibility
described in § 1208.35.
■ 8. Add subpart D, consisting of
§ 1208.35, to read as follows:
Subpart D—Eligibility for Aliens Who
Enter the United States During
Emergency Border Circumstances
§ 1208.35 Limitation on asylum eligibility
and credible fear procedures for those who
enter the United States during emergency
border circumstances.
Notwithstanding any contrary section
of this chapter, including §§ 1003.42,
1208.2, 1208.13, 1208.30, and 1208.33—
(a) Limitation on eligibility. (1)
Applicability. An alien who is described
in § 1208.13(g) and who is not described
in section 3(b) of the Presidential
Proclamation of June 3, 2024, Securing
the Border, is ineligible for asylum.
(2) Exceptions. (i) This limitation on
eligibility does not apply if the alien
demonstrates by a preponderance of the
evidence that exceptionally compelling
circumstances exist, including if the
alien, or the alien’s family member as
described in 8 CFR 208.30(c) with
whom the alien is traveling,
demonstrates by a preponderance of the
evidence that, at the time of entry, the
alien or a member of the alien’s family
as described in § 208.30(c) with whom
the alien is traveling:
(A) Faced an acute medical
emergency;
(B) Faced an imminent and extreme
threat to life or safety, such as an
imminent threat of rape, kidnapping,
torture, or murder; or
(C) Satisfied the definition of ‘‘victim
of a severe form of trafficking in
persons’’ provided in § 214.11 of this
title.
(ii) An alien who demonstrates by a
preponderance of the evidence any of
the circumstances in paragraph (a)(2)(i)
of this section shall necessarily establish
exceptionally compelling
circumstances.
(iii) An alien described in section 3(b)
of the Presidential Proclamation of June
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48771
3, 2024, Securing the Border, or who
establishes exceptionally compelling
circumstances under paragraph (a)(2)(i)
of this section has established
exceptionally compelling circumstances
under § 1208.33(a)(3).
(b) Application in credible fear
determinations. (1) Where an asylum
officer has issued a negative credible
fear determination pursuant to 8 CFR
208.35(b), and the alien has requested
immigration judge review of that
credible fear determination, the
immigration judge shall evaluate the
case de novo, as specified in paragraph
(b)(2) of this section. In doing so, the
immigration judge shall take into
account the credibility of the statements
made by the alien in support of the
alien’s claim and such other facts as are
known to the immigration judge.
(2) The immigration judge shall first
determine whether the alien is subject
to the limitation on asylum eligibility
under paragraph (a) of this section.
(i) Where the immigration judge
determines that the alien is not subject
to the limitation on asylum eligibility
under paragraph (a) of this section
because the alien is not described in
§ 1208.13(g), the immigration judge
shall follow the procedures in
§ 1208.33(b).
(ii) Where the immigration judge
determines that the alien is not subject
to the limitation on asylum eligibility
under paragraph (a) of this section
because the alien is described in section
3(b) of the Proclamation or is excepted
from the limitation on asylum eligibility
under paragraph (a)(2) of this section,
the immigration judge shall follow the
procedures in § 1208.30.
(iii) Where the immigration judge
determines that the alien is subject to
the limitation on asylum eligibility
under paragraph (a) of this section, the
immigration judge shall assess the alien
under the procedures set forth in
§ 1208.33(b)(2)(ii) except that the
immigration judge shall apply a
reasonable probability standard. For
purposes of this section, reasonable
probability means substantially more
than a reasonable possibility, but
somewhat less than more likely than
not, that the alien would be persecuted
because of his or her race, religion,
nationality, membership in a particular
social group or political opinion, or
tortured, with respect to the designated
country or countries of removal.
(3) Following the immigration judge’s
determination, the case will proceed as
indicated in 8 CFR 208.35(b)(2)(v)(A)
and (B).
(4) If the limitation on asylum
eligibility in paragraph (a) of this
section is held to be invalid or
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unenforceable by its terms, or as applied
to any person or circumstance, then
during the period(s) described in
§ 1208.13(g), the immigration judge
shall, as applicable, apply a reasonable
probability screening standard for any
protection screening under
§ 1208.33(b)(2)(ii).
(c) Family unity and removal
proceedings. In removal proceedings
under section 240 of the Act, where a
principal asylum applicant is found
eligible for withholding of removal
under section 241(b)(3) of the Act or
withholding of removal under
§ 1208.16(c)(2) and would be granted
asylum but for the limitation on asylum
eligibility in paragraph (a)(1) of this
section or § 1208.33(a), or both, and
where an accompanying spouse or child
as defined in section 208(b)(3)(A) of the
Act does not independently qualify for
asylum or other protection from removal
or the principal asylum applicant has a
spouse or child who would be eligible
to follow to join that applicant as
described in section 208(b)(3)(A) of the
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Act, the alien shall be deemed to have
established exceptionally compelling
circumstances under paragraph (a)(2)(i)
of this section and § 1208.33(a)(3)(i).
(d) Continuing applicability of
limitation on eligibility. (1) Subject to
paragraph (d)(2) of this section, the
limitation on asylum eligibility in
paragraph (a) of this section shall apply
to any asylum application filed by an
alien who entered the United States
during the time and in the manner
described in § 1208.13(g) and who is not
covered by an exception in paragraph
(d)(2) of this section, regardless of when
the application is filed and adjudicated.
(2) The limitation on asylum
eligibility in paragraph (a) of this
section shall not apply to an alien who
was under the age of 18 at the time of
the alien’s entry, if—
(i) The alien is applying for asylum as
a principal applicant; and
(ii) The asylum application is filed
after the period of time in 1208.13(g)
during which the alien entered.
(e) Severability. The Department
intends that in the event that any
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provision of this section or the
Presidential Proclamation of June 3,
2024, Securing the Border, is held to be
invalid or unenforceable by its terms, or
as applied to any person or
circumstance, the provisions of this
section should be construed so as to
continue to give the maximum effect to
those provisions permitted by law,
unless such holding is that a provision
is wholly invalid and unenforceable, in
which event the provision should be
severed from the remainder of this
section and the holding should not
affect the remainder of this section or
the application of the provision to
persons not similarly situated or to
dissimilar circumstances.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2024–12435 Filed 6–4–24; 4:15 pm]
BILLING CODE 4410–30–P; 9111–97–P
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Agencies
[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Rules and Regulations]
[Pages 48710-48772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12435]
[[Page 48709]]
Vol. 89
Friday,
No. 111
June 7, 2024
Part II
Department of Homeland Security
Department of Justice
-----------------------------------------------------------------------
Executive Office for Immigration Review
-----------------------------------------------------------------------
8 CFR Parts 208, 235, and 1208
Securing the Border; Interim Final Rule
Federal Register / Vol. 89 , No. 111 / Friday, June 7, 2024 / Rules
and Regulations
[[Page 48710]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 208 and 235
[USCIS Docket No. USCIS-2024-0006]
RIN 1615-AC92
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 5943-2024]
RIN 1125-AB32
Securing the Border
AGENCY: U.S. Citizenship and Immigration Services (``USCIS''),
Department of Homeland Security (``DHS''); Executive Office for
Immigration Review (``EOIR''), Department of Justice (``DOJ'').
ACTION: Interim final rule (``IFR'') with request for comments.
-----------------------------------------------------------------------
SUMMARY: On June 3, 2024, the President signed a Proclamation under
sections 212(f) and 215(a) of the Immigration and Nationality Act
(``INA''), finding that the entry into the United States of certain
noncitizens during emergency border circumstances would be detrimental
to the interests of the United States, and suspending and limiting the
entry of those noncitizens. The Proclamation directed DHS and DOJ to
promptly consider issuing regulations addressing the circumstances at
the southern border, including any warranted limitations and conditions
on asylum eligibility. The Departments are now issuing this IFR.
DATES:
Effective date: This IFR is effective at 12:01 a.m. eastern
daylight time on June 5, 2024.
Submission of public comments: Comments must be submitted on or
before July 8, 2024.
The electronic Federal Docket Management System will accept
comments prior to midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on this IFR, identified by USCIS
Docket No. USCIS-2024-0006, through the Federal eRulemaking Portal:
https://www.regulations.gov. Follow the website instructions for
submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to the Departments' officials, will
not be considered comments on the IFR and may not receive a response
from the Departments. Please note that the Departments cannot accept
any comments that are hand-delivered or couriered. In addition, the
Departments cannot accept comments contained on any form of digital
media storage devices, such as CDs/DVDs and USB drives. The Departments
are not accepting mailed comments at this time. If you cannot submit
your comment by using https://www.regulations.gov, please contact the
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
For DHS: Daniel Delgado, Acting Deputy Assistant Secretary for
Immigration Policy, Office of Strategy, Policy, and Plans, U.S.
Department of Homeland Security; telephone (202) 447-3459 (not a toll-
free call).
For the Executive Office for Immigration Review: 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:
Table of Contents
I. Public Participation
II. Executive Summary
A. Background and Purpose
B. Legal Authority
C. Summary of Provisions of the IFR
III. Discussion of the IFR
A. Current Framework
1. Asylum, Statutory Withholding of Removal, and CAT Protection
2. Expedited Removal and Screenings in the Credible Fear Process
3. Lawful Pathways Condition on Asylum Eligibility
B. Justification
1. Global Migration at Record Levels
2. Need for These Measures
3. Description of the Rule and Explanation of Regulatory Changes
C. Section-by-Section Description of Amendments
1. 8 CFR 208.13 and 1208.13
2. 8 CFR 208.35
3. 8 CFR 1208.35
4. 8 CFR 235.15
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
1. Foreign Affairs
2. Good Cause
B. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14094 (Modernizing Regulatory Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act
K. Paperwork Reduction Act
List of Abbreviations
AO Asylum Officer
APA Administrative Procedure Act
BIA Board of Immigration Appeals (DOJ, EOIR)
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CBP U.S. Customs and Border Protection
CBP One app CBP One mobile application
CDC Centers for Disease Control and Prevention
CHNV Cuba, Haiti, Nicaragua, and Venezuela
DHS Department of Homeland Security
DOD Department of Defense
DOJ Department of Justice
EOIR Executive Office for Immigration Review
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FRP Family Reunification Parole
FY Fiscal Year
HSA Homeland Security Act of 2002
ICE U.S. Immigration and Customs Enforcement
IFR Interim Final Rule
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IJ Immigration Judge
INA or the Act Immigration and Nationality Act
INS Immigration and Naturalization Service
MPP Migrant Protection Protocols
NGO Non-Governmental Organization
NEPA National Environmental Policy Act
NTA Notice to Appear
OHSS Office of Homeland Security Statistics
OIS Office of Immigration Statistics
OMB Office of Management and Budget
POE Port of Entry
RFA Regulatory Flexibility Act
SWB Southwest Land Border
TCO Transnational Criminal Organization
UC Unaccompanied Child, having the same meaning as Unaccompanied
Alien Child as defined at 6 U.S.C. 279(g)(2)
UIP U.S. Customs and Border Protection Unified Immigration Portal
UMRA Unfunded Mandates Reform Act of 1995
UNHCR United Nations High Commissioner for Refugees
USBP U.S. Border Patrol
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
The Departments invite all interested parties to participate in
this rulemaking by submitting written data, views, comments, and
arguments on all aspects of this IFR by the deadline stated above. The
Departments also invite comments
[[Page 48711]]
that relate to the economic, environmental, or federalism effects that
might result from this IFR. Comments that will provide the most
assistance to the Departments in implementing these changes will
reference a specific portion of the IFR, explain the reason for any
recommended change, and include data, information, or authority that
supports such recommended change. Comments must be submitted in
English, or an English translation must be provided. Comments submitted
in a manner other than pursuant to the instructions, including emails
or letters sent to the Departments' officials, will not be considered
comments on the IFR and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must include the USCIS
Docket No. USCIS-2024-0006 for this rulemaking. 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.
Docket: For access to the docket and to read background documents
or comments received, go to https://www.regulations.gov, referencing
USCIS Docket No. USCIS-2024-0006. You may also sign up for email alerts
on the online docket to be notified when comments are posted, or a
final rule is published.
II. Executive Summary
A. Background and Purpose
On June 3, 2024, the President signed a Proclamation under sections
212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), finding
that because the border security and immigration systems of the United
States are unduly strained at this time, the entry into the United
States of certain categories of noncitizens \1\ is detrimental to the
interests of the United States, and suspending and limiting the entry
of such noncitizens. The Proclamation explicitly excepts from its terms
certain persons who are not subject to the suspension and limitation.
This rule is necessary to respond to the emergency border circumstances
discussed in the Proclamation.
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\1\ For purposes of this preamble, the Departments use the term
``noncitizen'' to be synonymous with the term ``alien'' as it is
used in the INA. See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v.
Barr, 590 U.S. 222, 226 n.2 (2020).
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The Departments use the term ``emergency border circumstances'' in
this preamble to generally refer to situations in which high levels of
encounters at the southern border exceed DHS's capacity to deliver
timely consequences to most individuals who cross irregularly into the
United States and cannot establish a legal basis to remain in the
United States. As the preamble elsewhere explains, the periods during
which the Proclamation is intended to be in effect, when encounters
exceed certain thresholds, identify such situations. Hence, the
Departments in this preamble use the term ``emergency border
circumstances'' to refer more specifically to the period of time after
the date that the Proclamation's suspension and limitation on entry
would commence (as described in section 1 of the Proclamation) until
the discontinuation date referenced in section 2(a) of the Proclamation
or the date the President revokes the Proclamation (whichever comes
first), as well as any subsequent period during which the
Proclamation's suspension and limitation on entry would apply as
described in section 2(b) of the Proclamation.\2\ As the Proclamation
and this preamble explain, these circumstances exist despite the
Departments' efforts to address substantial levels of migration, and
such circumstances are a direct result of Congress's failure to update
outdated immigration laws and provide needed funding and resources for
the efficient operation of the border security and immigration systems.
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\2\ The Departments have sought to avoid describing ``emergency
border circumstances'' as the time period during which the
Proclamation is in effect, because the Departments intend for
certain provisions of this rule to remain in effect in the event a
court enjoins or otherwise renders inoperable the Proclamation or
this rule's limitation on asylum eligibility.
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The Proclamation explains that since 2021, as a result of political
and economic conditions globally, there have been substantial levels of
migration throughout the Western Hemisphere,\3\ including record levels
at the southwest land border (``SWB'').\4\ In
[[Page 48712]]
response to record levels of encounters at the SWB,\5\ the United
States Government has taken a series of significant steps to strengthen
consequences for unlawful or unauthorized entry at the border, while at
the same time overseeing the largest expansion of lawful, safe, and
orderly pathways and processes for individuals to come to the United
States for protection in decades.\6\ These steps include:
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\3\ According to OHSS analysis of the United Nations High
Commissioner for Refugees (``UNHCR'') data from 1969 to 2022, there
were more than 8.5 million displaced persons in the Western
Hemisphere in 2022, including approximately 6.6 million Venezuelans,
300,000 Nicaraguans, 260,000 Hondurans, 250,000 Cubans, 250,000
Colombians, 210,000 Haitians, and 210,000 Salvadorans, among others.
By comparison, prior to 2018 there were never more than 1 million
displaced persons in the hemisphere, and prior to 2007 there were
never more than 300,000. Nearly 1 in every 100 people in the Western
Hemisphere was displaced in 2022, compared to less than 1 in 1,000
displaced in the region each year prior to 2018. See UNHCR, Refugee
Data Finder, unhcr.org/refugee-statistics/download/?url=PhV1Xc (last
visited May 27, 2024); see also UNHCR, Global Trends: Forced
Displacement in 2022, at 2, 8, 9, 12 (June 14, 2023), https://www.unhcr.org/global-trends-report-2022 (showing rapid global
increases in forcibly displaced persons and other persons in need of
international protection in 2021 and 2022, and projecting
significant future increases); UNHCR, Venezuela Situation, https://www.unhcr.org/emergencies/venezuela-situation (last updated Aug.
2023).
\4\ United States Government sources refer to the U.S. border
with Mexico by various terms, including ``SWB'' and ``the southern
border.'' In some instances, these differences can be substantive,
referring only to portions of the border, while in others they
simply reflect different word choices. As defined in section 4(d) of
the Proclamation, the term ``southern border'' includes both the
southwest land border (``SWB'') and the southern coastal borders. As
defined in section 4(c) of the Proclamation, the term ``southwest
land border'' means the entirety of the United States land border
with Mexico. And as defined in section 4(b) of the Proclamation, the
term ``southern coastal borders'' means all maritime borders in
Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime
borders proximate to the SWB, the Gulf of Mexico, and the southern
Pacific coast in California; and all maritime borders of the United
States Virgin Islands and Puerto Rico. The Departments believe that
the factual circumstances described herein support applying this IFR
to both the SWB and the southern coastal borders, although they
recognize that occasionally different variations of this terminology
may be used. The Departments further note there are sound reasons
for the Proclamation and rule to include maritime borders of the
United States Virgin Islands and Puerto Rico; this aspect of the
Proclamation and rule help avoid any incentive for maritime
migration to such locations. The dangers of such migration, and the
operational challenges associated with responding to such maritime
migration, are well documented. See Securing America's Maritime
Border: Challenges and Solutions for U.S. National Security: Hearing
Before the Subcomm. on Transp. & Mar. Sec. of the H. Comm. on
Homeland Sec., 108th Cong. 10-11 (prepared statement of Rear Admiral
Jo-Ann F. Burdian, Assistant Commandant for Response Policy, U.S.
Coast Guard) (describing an increasingly challenging operational
environment and noting that most ``Cuban and Haitian migrants use
transit routes into Florida, either directly or via the Bahamas.
Alternatively, Dominican and some Haitian migrants use shorter
transit routes across the Mona Passage to Puerto Rico and the U.S.
Virgin Islands. Common conveyances used in this region range from
fishing vessels, coastal freighters, sail freighters, go-fast type
vessels, and `rusticas.' ''); PBS, More Than 100 Migrants Stranded
Near Puerto Rico Await Help During Human Smuggling Operation (Oct.
18, 2022), https://www.pbs.org/newshour/world/more-than-100-migrants-stranded-near-puerto-rico-await-help-during-human-smuggling-operation (``Mona Island is located in the treacherous
waters between Dominican Republic and Puerto Rico and has long been
a dropping off point for human smugglers promising to ferry Haitian
and Dominican migrants to the U.S. territory aboard rickety boats.
Dozens of them have died in recent months in an attempt to flee
their countries amid a spike in poverty and violence.''); United
States Coast Guard, Coast Guard Repatriates 38 Migrants to Dominican
Republic Following 2 Interdictions Near Puerto Rico (Apr. 25, 2024),
https://www.news.uscg.mil/Press-Releases/Article/3755880/coast-guard-repatriates-38-migrants-to-dominican-republic-following-2-interdict/; United States Coast Guard, Coast Guard Repatriates 101
Migrants to Dominican Republic Following 3 Interdictions Near Puerto
Rico (Apr. 9, 2024), https://www.news.uscg.mil/Press-Releases/Article/3734747/coast-guard-repatriates-101-migrants-to-dominican-republic-following-3-interdic/; United States Coast Guard, Coast
Guard, Federal, Local Interagency Responders Search for Possible
Survivors of Capsized Migrant Vessel in Camuy, Puerto Rico (Feb. 1,
2024), https://www.news.uscg.mil/Press-Releases/Article/3663106/coast-guard-federal-local-interagency-responders-search-for-possible-survivors/; United States Coast Guard, Coast Guard
Repatriates 28 Migrants to Dominican Republic, Following
Interdiction of Unlawful Migration Voyage in the Mona Passage (Jan.
31, 2024), https://www.news.uscg.mil/Press-Releases/Article/3661517/coast-guard-repatriates-28-migrants-to-dominican-republic-following-interdictio/. There were 35,100 encounters of Dominicans between
POEs at the SWB in Fiscal Year (``FY'') 2023 and 14,100 in the first
six months of FY 2024 (on pace for 28,200), up from an average of
400 such encounters per year in FY 2014 through FY 2019--roughly a
90-fold increase. Office of Homeland Security Statistics (``OHSS'')
analysis of March 2024 OHSS Persist Dataset.
\5\ At the SWB, U.S. Customs and Border Protection (``CBP'')
completed approximately 1.7 million encounters at and between POEs
in FY 2021, 2.4 million in FY 2022, and 2.5 million in FY 2023, with
each year exceeding the previous record high of 1.68 million in FY
2000. Compare OHSS, 2022 Yearbook of Immigration Statistics 89 tbl.
33 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (total
apprehensions and Title 42 expulsions from 1925 to 2022), and id. at
94-96 tbl. 35 (apprehensions from FY 2013 to FY 2022), with OHSS,
2012 Yearbook of Immigration Statistics 96 tbl. 35 (July 2013),
https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2012.pdf (apprehensions from FY 2003
to FY 2012), and OHSS, 2002 Yearbook of Immigration Statistics 184
tbl. 40 (Oct. 2003), https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2002.pdf (apprehensions
from FY 1996 to FY 2002). In December 2023, CBP also completed a
single-month record of approximately 302,000 encounters at and
between POEs, almost one and a half times as many as the highest
monthly number recorded prior to 2021 (approximately 209,000 in
March 2000) based on records available in the OHSS Persist Dataset
from FY 2000 to the present. Although some of the increase in
encounters is explained by higher-than-normal numbers of repeat
encounters of the same individuals during the period in which
noncitizens were expelled pursuant to the Centers for Disease
Control and Prevention's (``CDC's'') Title 42 public health Order,
OHSS analysis of the March 2024 OHSS Persist Dataset indicates that
unique encounters were also at record high levels. See OHSS analysis
of March 2024 OHSS Persist Dataset.
DHS data in this IFR are current through March 31, 2024, the
most recent month for which DHS has data that have gone through its
full validation process. DHS primarily relies on two separate
datasets for most of the data in this IFR. Most DHS data are pulled
from OHSS's official statistical system of record data, known as the
OHSS Persist Dataset, which is typically released by OHSS on a 90-
day delay. Other data in this IFR are pulled from OHSS's Enforcement
Lifecycle dataset, which combines 23 separate DHS and DOJ datasets
to report on the end-to-end immigration enforcement process. Due to
this greater complexity, Lifecycle data generally become available
for reporting 90 to 120 days after the end of each quarter.
CBP also publishes preliminary data pulled from its operational
systems more quickly as part of its regular Monthly Operational
Updates. The data in these updates reflect operational realities but
change over time as transactional records in the systems of record
are cleaned and validated; they are best viewed as initial estimates
rather than as final historical records. CBP released an operational
update on May 15, 2024, that includes the Component's official
reporting for encounters through the end of April. Based on these
data, SWB encounters between POEs fell slightly by six percent
between March and April. OHSS analysis of data obtained from CBP,
Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last accessed May 24, 2024).
The preliminary April data are best understood to reflect a
continuation of the general pattern described elsewhere in this IFR.
Excluding March through April 2020, which was an unusual case
because of the onset of the COVID-19 pandemic, the average month-
over-month change between March and April for 2013 through 2024 is a
2.3 percent increase, with 4 out of those 11 years experiencing
decreases in April and 7 years experiencing increases.
\6\ See DHS, Fact Sheet: Department of State and Department of
Homeland Security Announce Additional Sweeping Measures to Humanely
Manage Border through Deterrence, Enforcement, and Diplomacy (May
10, 2023), https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.
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Promulgating and implementing the rule titled
Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 2023)
(``Circumvention of Lawful Pathways rule'');
Deploying more than 500 additional DHS personnel at a time
to the SWB to support U.S. Customs and Border Protection (``CBP'')
operations and refocusing a significant portion of DHS's SWB workforce
to prioritize migration management above other border security
missions; \7\
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\7\ DHS, Fact Sheet: The Biden-Harris Administration Takes New
Actions to Increase Border Enforcement and Accelerate Processing for
Work Authorizations, While Continuing to Call on Congress to Act
(Sept. 20, 2023), https://www.dhs.gov/news/2023/09/20/fact-sheet-biden-harris-administration-takes-new-actions-increase-border.
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Deploying over 1,000 additional Department of Defense
(``DOD'') personnel on top of the 2,500 steady state presence to the
SWB in May 2023 to further enhance border security; \8\
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\8\ Id.; see also DOD, Austin Approves Homeland Security Request
for Troops at Border (May 2, 2023), https://www.defense.gov/News/News-Stories/Article/Article/3382272/austin-approves-homeland-security-request-for-troops-at-border/.
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Processing record numbers of individuals through expedited
removal; \9\
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\9\ In the months between May 12, 2023, and March 31, 2024, CBP
processed roughly 316,000 noncitizens encountered at and between SWB
POEs for expedited removal, more than in any prior full fiscal year.
OHSS analysis of data pulled from CBP Unified Immigration Portal
(``UIP'') on April 2, 2024.
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Implementing a historic expansion of lawful pathways and
processes to come to the United States, including: the Cuba, Haiti,
Nicaragua, and Venezuela (``CHNV'') parole processes, which allow
individuals with U.S.-based supporters to seek parole on a case-by-case
basis for urgent humanitarian reasons or significant public benefit;
the Safe Mobility Offices in Colombia, Costa Rica, Ecuador, and
Guatemala, which provide access to expedited refugee processing for
eligible individuals; and the expansion of country-specific family
reunification parole processes for individuals in the region who have
U.S. citizen relatives in the United States; \10\
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\10\ DHS, Fact Sheet: U.S. Government Announces Sweeping New
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration.
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Expanding opportunities to enter the United States for
seasonal employment; \11\
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\11\ DHS, DHS to Supplement H-2B Cap with Nearly 65,000
Additional Visas for FY 2024, Department of Homeland Security (Nov.
3, 2023), https://www.dhs.gov/news/2023/11/03/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2024.
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Establishing a mechanism for over 1,400 migrants per day
to schedule a time and place to arrive in a safe, orderly, and lawful
manner at ports of entry (``POEs'') through the CBP One mobile
application (``CBP One app''); \12\
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\12\ DHS, Fact Sheet: U.S. Government Announces Sweeping New
Actions to Manage Regional Migration (Apr. 27, 2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-announces-sweeping-new-actions-manage-regional-migration; CBP, CBP
OneTM Appointments Increased to 1,450 Per Day (June 30,
2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.
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Increasing proposed refugee admissions from the Western
Hemisphere from 5,000 in Fiscal Year (``FY'') 2021 to up to 50,000 in
FY 2024; \13\
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\13\ U.S. State Dep't, Report to Congress on Proposed Refugee
Admissions for Fiscal Year 2024 (Nov. 3, 2023) https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2024/.
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[[Page 48713]]
Completing approximately 89 percent more immigration court
cases in FY 2023 as compared to FY 2019; \14\ and
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\14\ See EOIR, Adjudication Statistics: New Cases and Total
Completions--Historical 1-2 (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf.
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Increasing the immigration judge (``IJ'') corps by 66
percent from FY 2019 to FY 2023, including maximizing the
congressionally authorized number in FY 2023 for a total corps of
734.\15\
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\15\ See EOIR, Adjudication Statistics: Immigration Judge (IJ)
Hiring 1 (Jan. 2024), https://www.justice.gov/eoir/media/1344911/dl?inline (showing 734 total IJs on board in FY 2023); Executive
Office for Immigration Review (``EOIR'') Strategic Plan 2024,
Current Operating Environment, https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment (last
visited May 27, 2024) (``The agency's streamlining efforts also
enabled EOIR, by the close of FY 2023, to fill all 734 appropriated
IJ positions, thus creating the largest judge corps in the agency's
history.'').
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The Proclamation further states that although these efforts and
other complementary measures are having their intended effect--DHS is
processing noncitizens for removal in record numbers and with record
efficiency \16\--the border security and immigration systems have not
been able to keep pace with the number of individuals arriving at the
southern border.\17\ Simply put, the Departments do not have adequate
resources and tools to deliver timely decisions and consequences to
individuals who cross unlawfully and cannot establish a legal basis to
remain in the United States, or to provide timely protection to those
ultimately found eligible for protection when individuals are arriving
at such elevated, historic volumes.\18\
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\16\ See supra note 9. Since May 12, 2023, the median time to
refer noncitizens encountered by CBP at the SWB who claim a fear for
credible fear interviews decreased by 77 percent from its historical
average, from 13 days in the FY 2014 to FY 2019 pre-pandemic period
to 3 days in the four weeks ending March 31, 2024; for those who
receive negative credible fear determinations, the median time from
encounter to removal, over the same time frames, decreased 85
percent from 73 days to 11 days. Pre-May 12, 2023, data from OHSS
Lifecycle Dataset as of December 31, 2023; post-May 11, 2023, data
from OHSS analysis of data downloaded from UIP on April 2, 2024.
DHS removed or returned over 662,000 noncitizens between May 12,
2023, and March 31, 2024, or an average of over 61,300 per month
(excluding crew members detained on board their vessels and other
administrative returns); this represents the highest average monthly
count of removals and returns since FY 2010. Post-May 12, 2023,
repatriations from OHSS analysis of data downloaded from UIP on
April 2, 2024; see also OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last
updated May 10, 2024) (providing historic data on repatriations);
OHSS, 2022 Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov.
2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf
(noncitizen removals, returns, and expulsions for FY 1892 to FY
2022).
\17\ See Letter for Kevin McCarthy, Speaker of the House of
Representatives, from Shalanda D. Young, Director, Office of
Management and Budget (``OMB'') (Aug. 10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf.
\18\ Id.; see also Ariel G. Ruiz-Soto et al., Migration Pol'y
Inst., Shifting Realities at the U.S.-Mexico Border: Immigration
Enforcement and Control in a Fast-Evolving Landscape 20 (Jan. 2024),
https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf (``Across the border,
interviewed agents expressed frustration with low staffing levels
and resource allocations compared to the challenge of managing the
border.''). DHS acknowledges that the enacted FY 2024 DHS budget
does appropriate funding sufficient to pay for approximately 2,000
additional Border Patrol agents, bringing the total level indicated
by Congress up to 22,000 agents, compared with 19,855 agents for FY
2023. 170 Cong Rec. H1809-10 (daily ed. Mar. 22, 2024) (Explanatory
Statement Regarding H.R. 2882, Further Consolidated Appropriations
Act, 2024) (``The agreement includes . . . [funding] to hire 22,000
Border Patrol Agents.''); 168 Cong Rec. S8557 (daily ed. Dec. 20,
2022) (Explanatory Statement Regarding H.R. 2617, Consolidated
Appropriations Act, 2023) (``The agreement provides funding for
19,855 Border Patrol agents.''). However, the FY 2024 appropriations
do not fully fund CBP's existing operational and staffing
requirements. Additionally, CBP estimates that it will likely be
unable to implement a hiring surge to meaningfully grow its overall
staffing levels towards the staffing levels funded by the FY 2024
budget before the end of the current fiscal year. The hiring process
requires time and resources to bring additional agents on board. For
example, it generally takes more than six months for an applicant to
complete the hiring process and report to the U.S. Border Patrol
(``USBP'') Academy to receive necessary training. See DHS, Statement
from Secretary Mayorkas on the President's Fiscal Year 2025 Budget
for the U.S. Department of Homeland Security (Mar. 11, 2024),
https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-presidents-fiscal-year-2025-budget-us-department (``However, DHS's
border security and immigration enforcement efforts along the
Southwest border desperately require the additional funds requested
by the Administration and included in the Senate's bipartisan border
security legislation, which would provide DHS with approximately $19
billion to fund additional personnel, facilities, repatriation
capabilities, and other enforcement resources.'').
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This became even more clear in the months following the lifting of
the Title 42 public health Order.\19\ As the Departments resumed
widespread processing under title 8 authorities, the insufficiency of
both the available statutorily authorized tools and the resources
provided to implement them came into stark focus. Despite the expanded
ability to impose consequences at the SWB through the Circumvention of
Lawful Pathways rule and complementary measures, which led to the
highest numbers of returns and removals in more than a decade,\20\
encounter levels have remained elevated well above historical levels,
with December 2023 logging the highest monthly total on record.\21\
While encounter levels in calendar year 2024 have decreased from these
record numbers, there is still a substantial and elevated level of
migration, and historically high percentages of migrants are claiming
fear and are challenging to remove, as discussed in more detail in
Section III.B.1 of this preamble.\22\ This
[[Page 48714]]
substantial migration throughout the hemisphere, combined with
inadequate resources and tools to keep pace, limits DHS's ability to
impose timely consequences through expedited removal, the main
consequence available at the border under title 8 authorities.
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\19\ 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[ed] 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''). Although the CDC indicated its intention to lift the order on
May 23, 2022, ongoing litigation prevented the order from being
lifted until it ultimately expired on May 11, 2023. See 88 FR at
31319.
\20\ In the ten and a half months between May 12, 2023, and
March 31, 2024, DHS completed over 662,000 removals and enforcement
returns, more than in any full fiscal year since FY 2011, and the
highest monthly average of enforcement repatriations since FY 2010.
Post-May 12, 2023, repatriations from OHSS analysis of data
downloaded from UIP on April 2, 2024; see also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing historic data on
repatriations); OHSS, 2022 Yearbook of Immigration Statistics 103-04
tbl. 39 (Nov. 2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf
(noncitizen removals, returns, and expulsions for FY 1892 to FY
2022).
\21\ There were nearly 302,000 CBP encounters at and between
POEs along the SWB in December 2023, higher than any previous month
on record. OHSS analysis of March 2024 OHSS Persist Dataset and
historic CBP data for encounters prior to FY 2000; see also OHSS,
2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov. 2023)
(total apprehensions and Title 42 expulsions from 1925 to 2022),
https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf; id. at
94-96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (SWB encounters from FY
2014 through December 2023).
\22\ After peaking at nearly 302,000 in December 2023,
encounters at and between POEs along the SWB fell to approximately
176,000 in January 2024, 190,000 in February 2024, and 189,000 in
March 2024. At an average of 185,000 for the first three months of
2024, monthly encounters levels were almost 4 times higher than the
pre-pandemic (FY 2014 through 2019) average of 48,000 encounters at
and between POEs per month and--with the exceptions of FY 2022 and
FY 2023--represented the highest second quarter count of encounters
in any year since FY 2001. March 2024 OHSS Persist Dataset; see also
OHSS, 2022 Yearbook of Immigration Statistics 89 tbl. 33 (Nov.
2023), https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf (total
apprehensions and title 42 expulsions from 1925 to 2022); id. at 94-
96 tbl. 35 (apprehensions from FY 2013 to FY 2022); OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (SWB encounters from FY
2014 through December 2023).
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The sustained, high encounter rates the Departments have
experienced over the past year have outstripped the Departments'
abilities--based on available resources--to process noncitizens through
expedited removal in significant numbers. Due to its funding shortfall,
DHS simply lacks sufficient resources, such as sufficient USCIS asylum
officers (``AOs'') to conduct fear screenings and sufficient temporary
processing facilities, often called ``soft-sides,'' which limits DHS's
ability to conduct credible fear interviews for individuals in CBP
custody and to process and hold individuals in U.S. Immigration and
Customs Enforcement (``ICE'') custody during the expedited removal
process.\23\ This mismatch in available resources and encounters
creates stress on the border and immigration systems and forces DHS to
rely on processing pathways outside of expedited removal--limiting the
Departments' ability to deliver timely consequences to individuals who
do not have a legal basis to remain in the United States.\24\
Individuals who are subject to but cannot be processed under expedited
removal due to resource constraints are instead released pending
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a
(``section 240 removal proceedings''), before an IJ, a process that can
take several years to conclude.\25\ These immigration court proceedings
can be less resource intensive for processing upon initial encounter,
because individuals can be released from custody fairly quickly, but
are also far less likely to result in swift decisions and swift
consequences, and generally require more IJ and ICE attorney time to
resolve. Compare INA 235(b)(1), 8 U.S.C. 1225(b)(1), with INA 240, 8
U.S.C. 1229a. Notably, in FY 2023, when the immigration courts had a
historic high number of case completions, the number of new cases far
outnumbered those completions and led to a larger backlog--likely
extending the length of time it will take individuals encountered and
referred into section 240 removal proceedings to finish their
immigration court process.\26\
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\23\ ``Because ICE has very limited detention capacity and
appropriated bedspace has remained relatively static, the agency
must carefully prioritize whom it detains. Similar to FY 2022,
during FY 2023, Enforcement and Removal Operations' limited
detention capacity was primarily used to house two populations:
noncitizens CBP arrested at the Southwest Border and noncitizens
with criminal histories [Enforcement and Removal Operations]
arrested in the interior.'' Fiscal Year 2023 ICE Annual Report 18
(Dec. 29, 2023), https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf. In FY 2024, ICE was appropriated
$5,082,218,000.00 ``for enforcement, detention and removal
operations.'' Consolidated Appropriations Act, 2024, Public Law 118-
47, 138 Stat. 460, 598 (2024). The joint explanatory statement
states that the bill provides ``$5,082,218,000 for Enforcement and
Removal Operations (ERO)'' and ``$355,700,000 for 41,500 beds for
the full fiscal year and inflationary adjustments to support current
detention facility operations.'' 170 Cong. Rec. H1807, 1812 (daily
ed. Mar. 22, 2024).
\24\ See CBP, Custody and Transfer Statistics, https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics (last
updated Apr. 12, 2024) (table showing that, under current
constraints, the number of individuals processed for expedited
removal makes up only a fraction of total processing dispositions,
including section 240 proceedings).
\25\ EOIR decisions completed in December 2023 were, on average,
initiated in December 2020, during the significant operational
disruptions caused by the COVID-19 pandemic (with encounters several
months earlier than that), but 50 percent of EOIR cases initiated
during that time were still pending as of December 2023, so the
final mean processing time (once all such cases are complete) will
be longer. OHSS analysis of EOIR data as of February 12, 2024; EOIR
Strategic Plan 2024, Current Operating Environment, https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment (last visited May 26, 2024) (``EOIR [ ]
suffered operational setbacks during the COVID-19 pandemic years of
FY 2020 through FY 2022, including declining case completions due to
health closures and scheduling complications and delays in agency
efforts to transition to electronic records and the efficiencies
they represent. While the challenges of the pandemic were overcome
by adaptive measures taken during those years, the pandemic's impact
on the pending caseload is still being felt.''). While EOIR does not
report statistics on pending median completion times for removal
proceedings in general, it does report median completion times for
certain types of cases, such as detained cases and cases involving
UCs. See, e.g., EOIR, Median Unaccompanied Noncitizen Child (UAC)
Case Completion and Case Pending Time (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344951/dl?inline (median completion time
of 1,346 days); EOIR, Median Completion Times for Detained Cases
(Jan. 18, 2024), https://www.justice.gov/eoir/media/1344866/dl?inline (median completion time of 47 days in the first quarter of
2024 for removal, deportation, exclusion, asylum-only, and
withholding-only cases); EOIR, Percentage of DHS-Detained Cases
Completed within Six Months (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344886/dl?inline (reporting seven
percent of detained cases not completed within six months).
\26\ EOIR completed more than 520,000 cases in FY 2023 (a record
number), but also had almost 1.2 million case receipts, resulting in
a net increase of nearly 700,000 cases in its backlog. See EOIR,
Adjudication Statistics: Pending Cases, New Cases, and Total
Completions 1 (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2020/01/31/1_pending_new_receipts_and_total_completions.pdf; EOIR, Adjudication
Statistics: New Cases and Total Completions--Historical (Oct. 12,
2023), https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf. OHSS estimates
that 1.1 million of the nearly 1.2 million case receipts (95
percent) resulted from SWB encounters. OHSS analysis of March 2024
OHSS Persist Dataset.
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Said another way, at the current levels of encounters and with
current resources, the Departments cannot predictably and swiftly
deliver consequences to most noncitizens who cross the border without a
lawful basis to remain. This inability to predictably deliver timely
decisions and consequences further compounds incentives for migrants to
make the dangerous journey to the SWB, regardless of any individual
noncitizen's ultimate likelihood of success on an asylum or protection
application.\27\ Smugglers and transnational criminal organizations
(``TCOs'') have exploited this mismatch, further fueling migration by
actively advertising to migrants that they are likely to be able to
remain in the United States.\28\
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\27\ Miriam Jordan, One Big Reason Migrants Are Coming in
Droves: They Believe They Can Stay, N.Y. Times (Jan. 31, 2024),
https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html.
\28\ See Parker Asmann & Steven Dudley, How US Policy Foments
Organized Crime on US-Mexico Border, Insight Crime (June 28, 2023),
https://insightcrime.org/investigations/how-us-policy-foments-organized-crime-us-mexico-border/.
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The Departments' ability to refer and process noncitizens through
expedited removal thus continues to be overwhelmed, creating a vicious
cycle in which the border security and immigration systems cannot
deliver timely decisions and consequences to all the people who are
encountered at the SWB and lack a lawful basis to remain in the United
States. This, in turn, forces DHS to release individuals into the
backlogged immigration court system; for the many cases in that system
initiated just prior to or during the COVID-19 pandemic, the process
can take several years to result in a final decision or
consequence,\29\ which then incentivizes more people to make the
dangerous journey north to take their chances at the SWB.\30\ The
status quo of the broken immigration and asylum system has become a
driver for unlawful migration throughout the region and an increasingly
lucrative source of income for dangerous TCOs.\31\ Without
countermeasures, those TCOs will continue to grow in strength, likely
resulting in even more smuggling operations and undermining democratic
governance in the countries where they operate.\32\ All of these
factors, taken together, pose significant threats to the
[[Page 48715]]
safety and security of migrants exploited into making the dangerous
journey to the SWB and the U.S. communities through which many such
migrants transit.
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\29\ See supra note 25.
\30\ See, e.g., Jordan, supra note 27.
\31\ See Asmann & Dudley, supra note 28.
\32\ See Jordan, supra note 27.
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In the absence of congressional action to appropriately resource
DHS and EOIR and to reform the outdated statutory framework, the
Proclamation and the changes made by this rule are intended to
substantially improve the Departments' ability to deliver timely
decisions and consequences to noncitizens who lack a lawful basis to
remain. By suspending and limiting entries until 12:01 a.m. eastern
time on the date that is 14 calendar days after the Secretary makes a
factual determination that there has been a 7-consecutive-calendar-day
average of less than 1,500 encounters, as defined by the Proclamation,
but excluding noncitizens determined to be inadmissible at a SWB POE,
and by imposing a limitation on asylum eligibility and making other
policy changes, the Proclamation and IFR will realign incentives at the
southern border.\33\ The Proclamation and IFR will do this by improving
DHS's ability to place into expedited removal the majority of
noncitizens who are amenable to such processing; to avoid large-scale
releases of such individuals pending section 240 removal proceedings;
and to allow for swift resolution of their cases and, where
appropriate, removal.
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\33\ Under the Proclamation, the term ``encounter'' refers to a
noncitizen who (i) is physically apprehended by CBP immigration
officers within 100 miles of the United States SWB during the 14-day
period immediately after entry between POEs; (ii) is physically
apprehended by DHS personnel at the southern coastal borders during
the 14-day period immediately after entry between POEs; or (iii) is
determined to be inadmissible at a SWB POE. But the 1,500 and 2,500
encounter thresholds in the Proclamation and this rule exclude the
third category of encounters--individuals determined to be
inadmissible at a SWB POE. When describing historical data in this
preamble, the Departments have generally sought to distinguish
between encounters between POEs (also referred to as ``USBP
encounters'') and encounters at and between the POEs (also referred
to as ``total CBP encounters'' or ``encounters,'' depending on the
context).
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The Proclamation imposes a suspension and limitation on entry upon
certain classes of noncitizens who are encountered while the suspension
and limitation is in effect. The Proclamation provides that the
suspension and limitation on entry applies beginning at 12:01 a.m.
eastern daylight time on June 5, 2024. The suspension and limitation on
entry will be discontinued 14 calendar days after the Secretary makes a
factual determination that there has been a 7-consecutive-calendar-day
average of less than 1,500 encounters, as defined by the Proclamation,
but excluding noncitizens determined to be inadmissible at a SWB POE.
Unaccompanied children (``UCs'') \34\ from non-contiguous countries are
not included in calculating the number of encounters. If at any time
after such a factual determination the Secretary makes a factual
determination that there has been a 7-consecutive-calendar-day average
of 2,500 encounters or more, the suspension and limitation on entry
will apply at 12:01 a.m. eastern time on the next calendar day (or will
continue to apply, if the 14-calendar-day period has yet to elapse)
until 14 days after the Secretary makes another factual determination
that there has been a 7-consecutive-calendar-day average of less than
1,500 encounters or the President revokes the Proclamation, at which
time its application will be discontinued once again.
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\34\ In this rulemaking, as in the Proclamation, the term
``unaccompanied children'' or ``UCs'' has the same meaning as the
term ``unaccompanied alien child[ren]'' under 6 U.S.C. 279(g)(2).
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The Proclamation does not apply to the following persons:
(i) any noncitizen national of the United States;
(ii) any lawful permanent resident of the United States;
(iii) any unaccompanied child as defined in section 279(g)(2) of
title 6, United States Code;
(iv) any noncitizen who is determined to be a victim of a severe
form of trafficking in persons, as defined in section 7102(16) of title
22, United States Code;
(v) any noncitizen who has a valid visa or other lawful permission
to seek entry or admission into the United States, or presents at a
port of entry pursuant to a pre-scheduled time and place, including:
(A) members of the United States Armed Forces and associated
personnel, United States Government employees or contractors on orders
abroad, or their accompanying family members who are on their orders or
are members of their household;
(B) noncitizens who hold a valid visa or who have all necessary
documents required for admission consistent with the requirements of
section 1182(a)(7) of title 8, United States Code, upon arrival at a
port of entry;
(C) noncitizens traveling pursuant to the visa waiver program as
described in section 217 of the INA, 8 U.S.C. 1187; and
(D) noncitizens who arrive in the United States at a southwest land
border port of entry pursuant to a process the Secretary of Homeland
Security determines is appropriate to allow for the safe and orderly
entry of noncitizens into the United States;
(vi) any noncitizen who is permitted to enter by the Secretary of
Homeland Security, acting through a U.S. Customs and Border Protection
immigration officer, based on the totality of the circumstances,
including consideration of significant law enforcement, officer and
public safety, urgent humanitarian, and public health interests at the
time of the entry or encounter that warranted permitting the noncitizen
to enter; and
(vii) any noncitizen who is permitted to enter by the Secretary of
Homeland Security, acting through a U.S. Customs and Border Protection
immigration officer, due to operational considerations at the time of
the entry or encounter that warranted permitting the noncitizen to
enter.
The President authorized the Secretary of Homeland Security and the
Attorney General to issue any instructions, orders, or regulations as
may be necessary to implement the Proclamation, including the
determination of the exceptions in section 3(b), and directed them to
promptly consider issuing any instructions, orders, or regulations as
may be necessary to address the circumstances at the southern border,
including any additional limitations and conditions on asylum
eligibility that they determine are warranted, subject to any
exceptions that they determine are warranted.
Consistent with the President's direction, the Departments have
determined that this IFR is necessary to address the situation at the
southern border. This IFR aligns the Departments' border operations and
applicable authorities with the Proclamation's policy and objectives.
Specifically, this IFR establishes a limitation on asylum eligibility
that applies to certain individuals who enter during emergency border
circumstances and revises certain procedures applicable to the
expedited removal process to more swiftly apply consequences for
irregular migration \35\ and remove noncitizens who do not have a legal
basis to remain in the United States. Although the Departments are
adopting these measures to respond to the emergency situation at the
southern border, they are not a substitute for congressional action--
which remains the only long-term solution to the challenges the
Departments have confronted on the border for more than a decade.
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\35\ In this preamble, ``irregular migration'' refers to the
movement of people into another country without authorization.
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[[Page 48716]]
B. Legal Authority
The Secretary and the Attorney General jointly issue this rule
pursuant to their shared and respective authorities concerning
consideration of claims for asylum, statutory withholding of removal,
and protection under regulations implemented pursuant to U.S.
obligations under Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (``CAT'').\36\ The
Homeland Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat.
2135, as amended, created DHS and transferred to the Secretary of
Homeland Security many functions related to the administration and
enforcement of Federal immigration law while maintaining some functions
and authorities with the Attorney General, including some shared
concurrently with the Secretary.
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\36\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty
Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, 114; see also 8 U.S.C.
1231 note (United States Policy With Respect to Involuntary Return
of Persons in Danger of Subjection to Torture); 8 CFR 208.16(c)-
208.18, 1208.16(c)-1208.18.
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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)(3), 8 U.S.C. 1103(a)(3); see also 6 U.S.C. 202.
The HSA provides 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 [EOIR], or by the Attorney General with respect to [EOIR].'' INA
103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521. In addition,
under the HSA, the Attorney General retains authority to ``establish
such regulations, . . . issue such instructions, review such
administrative determinations in immigration proceedings, delegate such
authority, and perform such other acts as the Attorney General
determines to be necessary for carrying out'' the Attorney General's
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 removal proceedings under section 240 of the INA, 8 U.S.C.
1229a (``section 240 removal proceedings''). These adjudications are
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521; INA 103(g)(1), 8
U.S.C. 1103(g)(1). With limited exceptions, IJs 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's EOIR, in turn
hears appeals from IJ decisions. See 8 CFR 1003.1(a)(1), (b)(3); see
also Garland v. Ming Dai, 593 U.S. 357, 366-67 (2021) (describing
appeals from IJs to the BIA). And 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.\37\ 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'' within the meaning of section
101(a)(42)(A) of the INA, 8 U.S.C. 1101(a)(42)(A). INA 208(b)(1)(A), 8
U.S.C. 1158(b)(1)(A). Section 208 thereby authorizes the Secretary and
the Attorney General to ``establish[ ]'' ``requirements and
procedures'' to govern asylum applications. Id. The statute further
authorizes them to ``establish,'' ``by regulation,'' ``additional
limitations and conditions, consistent with'' section 208, under which
a noncitizen ``shall be ineligible for asylum.'' INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C); see also INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B)
(authorizing the Secretary and the Attorney General to ``provide by
regulation for any other conditions or limitations on the consideration
of an application for asylum not inconsistent with [the INA]'').\38\
The INA also provides the Secretary and Attorney General authority to
publish regulatory amendments governing their respective roles
regarding apprehension, inspection and admission, detention and
removal, withholding of removal, deferral of removal, and release of
noncitizens encountered in the interior of the United States or at or
between POEs. See INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
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\37\ The HSA further provides, ``Nothing in this Act, any
amendment made by this Act, or in section 103 of the [INA], as
amended . . . , shall be construed to limit judicial deference to
regulations, adjudications, interpretations, orders, decisions,
judgments, or any other actions of the Secretary of Homeland
Security or the Attorney General.'' Public Law 107-296, 116 Stat.
2135, 2274 (codified at 6 U.S.C. 522).
\38\ Under the HSA, the references to the ``Attorney General''
in the INA also encompass the Secretary with respect to statutory
authorities vested in the Secretary by the HSA or subsequent
legislation, including in relation to immigration proceedings before
DHS. 6 U.S.C. 251, 271(b)(3), (5), 557.
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The HSA granted DHS the authority to adjudicate asylum applications
and to conduct credible fear interviews, make credible fear
determinations in the context of expedited removal, and establish
procedures for further consideration of asylum applications after an
individual is found to have a credible fear. INA 103(a)(3), 8 U.S.C.
1103(a)(3); 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 AOs
conduct credible fear interviews, make credible fear determinations,
and determine whether a noncitizen's asylum application should be
granted. See DHS, No. 0150.1, Delegation to the Bureau of Citizenship
and Immigration Services (June 5, 2003); 8 CFR 208.2(a), 208.9, 208.30.
The United States is a party to the 1967 Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33 of
the Refugee Convention 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.'' Refugee
Convention, supra, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.
[[Page 48717]]
Congress implemented these obligations through the Refugee Act of
1980, Public Law 96-212, 94 Stat. 102 (``Refugee Act''), creating the
precursor to what is now known as statutory withholding of removal. The
Supreme Court has long recognized that the United States implements its
non-refoulement obligations under Article 33 of the Refugee Convention
(via the Refugee Protocol) through the statutory withholding of removal
provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3)
(``statutory withholding of removal''), 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.\39\ 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), (3), (g)(1)-(2), 8 U.S.C.
1103(a)(1), (3), (g)(1)-(2).
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\39\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999);
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987)
(distinguishing between Article 33's non-refoulement prohibition,
which aligns with what was then called withholding of deportation,
and Article 34's call to ``facilitate the assimilation and
naturalization of refugees,'' which the Court found aligned with the
discretionary provisions in section 208 of the INA, 8 U.S.C. 1158).
The Refugee Convention and Protocol are not self-executing. E.g.,
Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967
Protocol is not self-executing, nor does it confer any rights beyond
those granted by implementing domestic legislation.'').
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The Departments also have authority to implement Article 3 of the
CAT. 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 (codified at 8 U.S.C.
1231 note). DHS and DOJ have implemented the obligations of the United
States under Article 3 of the CAT in the Code of Federal Regulations,
consistent with FARRA. See, e.g., 8 CFR 208.16(c)-208.18, 1208.16(c)-
1208.18; Regulations Concerning the Convention Against Torture, 64 FR
8478 (Feb. 19, 1999), amended by 64 FR 13881 (Mar. 23, 1999).
This rule is necessary because, while the Proclamation recognizes
that the asylum system has contributed to the border emergency, the
Proclamation itself does not and cannot affect noncitizens' right to
apply for asylum, eligibility for asylum, or asylum procedures. That
has been the Executive Branch's consistent position for four
decades.\40\ That longstanding understanding follows from the text and
structure of the governing statutes. Section 212(f) provides that under
certain circumstances, the President may ``suspend the entry of all
aliens or any class of aliens as immigrants or nonimmigrants, or impose
on the entry of aliens any restrictions he may deem to be
appropriate.'' INA 212(f), 8 U.S.C. 1182(f). Although this provision--
first enacted in 1952--``grants the President broad discretion,'' it
``operate[s]'' only in its ``sphere[ ].'' Trump v. Hawaii, 585 U.S.
667, 683-84, 695 (2018). Section 212 of the INA, 8 U.S.C. 1182
(entitled ``Inadmissible aliens''), generally ``defines the universe of
aliens who are admissible'' and ``sets the boundaries of admissibility
into the United States.'' Id. at 695. Hence, when section 212(f)
authorizes the President to suspend ``entry,'' it ``enabl[es] the
President to supplement the other grounds of inadmissibility in the
INA,'' id. at 684 (citing Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2
(D.C. Cir. 1986)), and to bar individuals from entry into the United
States.
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\40\ In 1984, then-Assistant Attorney General of the Office of
Legal Counsel Theodore B. Olson advised that section 212(f) did not
permit the President to eliminate the asylum rights of noncitizens
who had hijacked a plane and, as a condition of the plane's release,
been flown to the United States. And in 2018, the Departments
reaffirmed that ``[a]n alien whose entry is suspended or restricted
under . . . a [section 212(f)] proclamation, but who nonetheless
reaches U.S. soil contrary to the President's determination that the
alien should not be in the United States, would remain subject to
various procedures under immigration laws,'' including ``expedited-
removal proceedings'' where they could ``raise any claims for
protection.'' Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83 FR
55934, 55940 (Nov. 9, 2018). Although Presidents have invoked
section 212(f) at least 90 times since 1981, to the Departments'
knowledge, none of those proclamations was understood to affect the
right of noncitizens on U.S. soil to apply for, or noncitizens'
statutory eligibility to receive, asylum. See Kelsey Y. Santamaria
et al., Cong. Rsch. Serv., Presidential Authority to Suspend Entry
of Aliens Under 8 U.S.C. 1182(f) (Feb. 21, 2024). At the same time,
nothing in the proclamations or the INA have precluded the
Departments from considering as an adverse discretionary criterion
that a noncitizen is described in a section 212(f) proclamation.
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This authority, though broad, does not authorize the President to
override the asylum statute.\41\ The asylum statute, first enacted in
the Refugee Act of 1980, today provides that ``[a]ny alien who is
physically present in the United States or who arrives in the United
States . . . irrespective of such alien's status, may apply for
asylum.'' INA 208(a)(1), 8 U.S.C. 1158(a)(1). The right to apply for
asylum thus turns on whether a noncitizen is ``physically present'' or
has ``arrive[d] in the United States,'' id., as those terms are
properly understood, and exists regardless of whether a noncitizen is
inadmissible.\42\ As a result, the power under section 212(f) to
suspend ``entry'' does not authorize the President to override the
asylum rights of noncitizens who have already physically entered the
United States and who are entitled to an adjudication of eligibility
under the applicable statutory and regulatory rules and standards.\43\
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\41\ The Supreme Court, though it has never squarely addressed
this issue, has also never indicated that section 212(f) confers
power to affect asylum rights of those present in the United States.
Cf., e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 174-77
(1993) (upholding a Coast Guard program of intercepting migrant
vessels and returning migrants to their home country, authorized in
part by section 212(f), on the basis that statutory rights under the
withholding of removal statute did not have ``extraterritorial
application'' to migrants who were not physically present); Hawaii,
585 U.S. at 689, 695 (assuming, without deciding, that section
212(f) ``does not allow the President to expressly override
particular provisions of the INA,'' while emphasizing the particular
``sphere[ ]'' in which it operates).
\42\ Section 212(f) contrasts with 42 U.S.C. 265, which
authorizes the CDC to temporarily suspend ``the right to introduce .
. . persons and property'' into the United States if such suspension
``is required in the interest of the public health.'' During the
COVID-19 pandemic and to prevent the ``serious danger of the
introduction of [the] disease into the United States,'' 42 U.S.C.
265, the CDC issued an order invoking section 265 to expel certain
noncitizens without allowing asylum applications. As the final rule
implementing section 265 explained, the provision is part of a
``broad public health statute'' that ``operates separately and
independently of the immigration power'' and authorizes the CDC ``to
temporarily suspend the effect of any law . . . by which a person
would otherwise have the right to be introduced . . . into the
U.S.,'' Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424, 56426, 56442 (Sept.
11, 2020), including the immigration laws, id. at 56426 (noting that
legislative history indicates that section 265 was intended to
suspend immigration if public health required it). The drafting
history of section 265 also confirms that Congress conferred
authority to prohibit ``the introduction of persons'' in order to
broaden this provision and that this provision subsumed but was not
limited to the authority to ``suspend immigration.'' Br. for
Appellants at 41-43, Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C.
Cir. 2022) (No. 21-5200); see Huisha-Huisha, 27 F.4th at 730-31
(determining plaintiffs not likely to succeed on their challenge to
the CDC order on the ground that it improperly suspended migrants'
right to apply for asylum). Section 265 is a public-health authority
under the Public Health Service Act. Its grant of authority to allow
the CDC to temporarily suspend immigration laws in case of a public
health emergency has no relevance to the interpretation of section
212(f), which is in title 8.
\43\ For similar reasons, section 215(a) of the INA, 8 U.S.C.
1185(a), which the Proclamation also invokes, does not authorize the
President to impose the condition and limitation on asylum
eligibility created by this rule. Cf. United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 540-47 (1950) (holding that under the
precursor to section 215(a)(1) of the INA and the presidential
proclamation and regulations issued pursuant to that provision,
which during times of national emergency made it unlawful for ``any
alien to . . . enter or attempt to . . . enter the United States
except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President shall
prescribe,'' the Attorney General could issue regulations governing
entry during such an emergency to ``deny [certain noncitizens] a
hearing . . . in special cases'' notwithstanding the ordinary
exclusion hearing provisions governing entry). This does not mean,
however, that the President could not invoke section 215(a) as
authority to impose reasonable rules, regulations, and orders on
asylum applicants and asylees, such as travel document requirements
for re-entry and departure controls.
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[[Page 48718]]
This rule, as discussed elsewhere, is authorized because Congress
has conferred upon the Secretary and the Attorney General express
rulemaking power to create new conditions and limitations on asylum
eligibility and create certain procedures for adjudicating asylum
claims. INA 103(a)(1), (a)(3), (g), 208(b)(1)(A), (b)(2)(C), (d)(5)(B),
8 U.S.C. 1103(a)(1), (a)(3), (g), 1158(b)(1)(A), (b)(2)(C), (d)(5)(B);
INA 235(b)(1)(B)(iii)(III), (iv), 8 U.S.C. 1225(b)(1)(B)(iii)(III),
(iv).
C. Summary of Provisions of the IFR
This IFR adds provisions at 8 CFR 208.13(g), 208.35, 235.15,
1208.13(g), and 1208.35 that effectuate three key changes to the
process for those seeking asylum, statutory withholding of removal, or
protection under the CAT during emergency border circumstances giving
rise to the suspension and limitation on entry under the Presidential
Proclamation of June 3, 2024, Securing the Border (``Presidential
Proclamation of June 3''):
During emergency border circumstances, persons who enter
across the southern border and who are not described in section 3(b) of
the Proclamation will be ineligible for asylum unless they demonstrate
by a preponderance of the evidence that exceptionally compelling
circumstances exist, including if the noncitizen demonstrates that they
or a member of their family as described in 8 CFR 208.30(c) with whom
they are 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.
During emergency border circumstances, rather than asking
specific questions of every noncitizen encountered and processed for
expedited removal to elicit whether the noncitizen may have a fear of
persecution or an intent to apply for asylum, for those who enter
across the southern border and are not described in section 3(b) of the
Proclamation, DHS will provide general notice regarding the process for
seeking asylum, statutory withholding of removal, or protection under
the CAT and will refer a noncitizen for a credible fear interview only
if the noncitizen manifests a fear of return, expresses an intention to
apply for asylum or protection, or expresses a fear of persecution or
torture or a fear of return to his or her country or the country of
removal.
The limitation on asylum eligibility will be applied
during credible fear interviews and reviews, and those who enter across
the southern border during emergency border circumstances and are not
described in section 3(b) of the Proclamation will receive a negative
credible fear determination with respect to their asylum claim unless
there is a significant possibility the noncitizen could demonstrate by
a preponderance of the evidence that exceptionally compelling
circumstances exist. Such noncitizens will thereafter be screened for a
reasonable probability of persecution because of a protected ground or
torture, a higher standard than that applied to noncitizens in a
similar posture under the Circumvention of Lawful Pathways rule. The
``reasonable probability'' standard is defined to mean substantially
more than a ``reasonable possibility'' but somewhat less than more
likely than not.
As discussed throughout this IFR, these changes are designed to
implement the policies and objectives of the Proclamation by enhancing
the Departments' ability to address historic levels of migration and
efficiently process migrants arriving at the southern border during
emergency border circumstances.
III. Discussion of the IFR
A. Current Framework
1. Asylum, Statutory Withholding of Removal, and CAT Protection
Asylum is a discretionary benefit that can be granted by the
Secretary or the Attorney General if a noncitizen establishes, among
other things, that they have experienced past persecution or have a
well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA 208(b)(1)-(2), 8 U.S.C. 1158(b)(1)-(2) (providing that,
unless subject to a mandatory bar, the Secretary or Attorney General
``may'' grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C.
1101(a)(42)(A) (defining ``refugee''). As long as they retain their
asylee status, noncitizens who are granted asylum (1) cannot be removed
or returned to their country of nationality or, if they have no
nationality, their last habitual residence, (2) receive employment
authorization incident to their status, (3) may be permitted to travel
outside of the United States and return with prior consent, and (4) may
seek derivative benefits for their spouses or children. INA 208(c)(1),
8 U.S.C. 1158(c)(1); see Johnson v. Guzman Chavez, 594 U.S. 523, 536
(2021) (``[A] grant of asylum permits an alien to remain in the United
States and to apply for permanent residency after one year[.]''
(emphasis omitted) (internal quotation marks and citation omitted)); 8
CFR 274a.12(a)(5) (employment authorization incident to asylum status);
8 CFR 223.1(b) (allowing for return to the United States after travel
with a requisite travel document for a ``person who holds . . . asylum
status pursuant to section 208 of the Act''); see also 6 U.S.C.
271(b)(3) (transferring asylum functions to DHS); 6 U.S.C. 557
(providing that references to any other officer shall be deemed to
refer to the ``Secretary'' with respect to any transferred function);
INA 208(b)(3), 8 U.S.C. 1158(b)(3) (derivative asylum status).
Asylum applications are generally classified as ``affirmative'' or
``defensive'' applications, depending on the agency with which they are
filed. If a noncitizen is physically present in the United States, not
detained, and not in section 240 removal proceedings, the noncitizen
may file an asylum application with USCIS. These applications are
``affirmative'' filings. Generally, if the noncitizen is in section 240
removal proceedings before an IJ, the noncitizen may apply for asylum
before the IJ as a defense to removal.\44\ These applications are
``defensive'' filings.
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\44\ The only exception is that USCIS has initial jurisdiction
over asylum applications filed by a UC even where the applicant is
in section 240 removal proceedings. INA 208(b)(3)(C), 8 U.S.C.
1158(b)(3)(C).
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Noncitizens are eligible for asylum if they have been persecuted or
have a well-founded fear of future persecution in their country of
nationality or, if they have no nationality, their last habitual
residence, on account of one of five protected grounds and are not
subject to a bar to eligibility. See generally INA 208, 8 U.S.C. 1158;
INA 101(a)(42), 8 U.S.C. 1101(a)(42). To be granted
[[Page 48719]]
asylum, eligible noncitizens must also establish that they merit asylum
in the exercise of discretion. Id. Noncitizens who are ineligible for a
grant of asylum, or who are denied asylum based on the Attorney
General's or the Secretary's discretion, may qualify for other forms of
protection. An application for asylum submitted by a noncitizen in
section 240 removal proceedings is also considered an application for
statutory withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3). See 8 CFR 1208.3(b), 1208.13(c)(1). An IJ also may
consider a noncitizen's eligibility for statutory withholding of
removal and CAT protection under regulations issued pursuant to the
implementing legislation regarding the obligations of the United States
under Article 3 of the CAT. FARRA sec. 2242(b) (codified at 8 U.S.C.
1231 note); 8 CFR 1208.3(b), 1208.13(c)(1); see also 8 CFR 1208.16(c),
1208.17.
Statutory withholding of removal and CAT protection preclude
removing a noncitizen to any country where the noncitizen would ``more
likely than not'' face persecution or torture, meaning that the
noncitizen's life or freedom would be threatened because of a protected
ground or that the noncitizen would be tortured. 8 CFR 1208.16(b)(2),
(c)(2). Thus, if a noncitizen establishes that it is more likely than
not that their life or freedom would be threatened because of a
protected ground, but is denied asylum for some other reason, the
noncitizen nonetheless may be entitled to statutory withholding of
removal if not otherwise barred from that form of protection. INA
241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16, 1208.16. Likewise,
a noncitizen who establishes that they more likely than not will face
torture in their country of removal will qualify for CAT protection.
See 8 CFR 208.16(c), 208.17(a), 1208.16(c), 1208.17(a).
In contrast to the more generous benefits available by attaining
asylum, statutory withholding of removal and CAT protection do not: (1)
prohibit the Government from removing the noncitizen to a third country
where the noncitizen would not face the requisite likelihood of
persecution or torture (even in the absence of an agreement with that
third country); (2) create a path to lawful permanent resident status;
or (3) afford the same ancillary benefits, such as derivative
protection for family members. See, e.g., Guzman Chavez, 594 U.S. at
536 (``distinguish[ing] withholding-only relief from asylum'' on the
ground that withholding does not preclude the Government from removing
the noncitizen to a third country and does not provide the noncitizen
any permanent right to remain in the United States); Matter of A-K-, 24
I&N Dec. 275, 279 (BIA 2007) (stating that ``the Act does not permit
derivative withholding of removal under any circumstances''); INA
208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory provision allowing
asylum status to be granted to accompanying or following-to-join spouse
or children of a noncitizen granted asylum; no equivalent statutory or
regulatory provision for individuals granted withholding or deferral of
removal).
2. Expedited Removal and Screenings in the Credible Fear Process
In the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
546, Congress established the expedited removal process. The process is
applicable to certain noncitizens present or arriving in the United
States (and, in the discretion of the Secretary, certain other
designated classes of noncitizens) who are found to be inadmissible
under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C),
which renders inadmissible noncitizens who make certain material
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C.
1182(a)(7), which renders inadmissible noncitizens who lack
documentation requirements for admission. INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). Upon being subject to expedited removal, such
noncitizens may be ``removed from the United States without further
hearing or review unless the [noncitizen] indicates either an intention
to apply for asylum . . . or a fear of persecution.'' Id.
Congress created a screening process, known as ``credible fear''
screening, to identify potentially valid claims for asylum by
noncitizens in expedited removal proceedings. The Departments have used
the same screening process to identify potentially valid claims for
statutory withholding of removal and CAT protection. If a noncitizen
indicates a fear of persecution or torture, a fear of return, or an
intention to apply for asylum during the course of the expedited
removal process, DHS refers the noncitizen to a USCIS AO to determine
whether the noncitizen has a credible fear of persecution or torture in
the country of citizenship or removal. INA 235(b)(1)(A)(ii), (B), 8
U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4). A noncitizen
has a ``credible fear of persecution'' if ``there is a significant
possibility, taking into account the credibility of the statements made
by the alien in support of the alien's claim and such other facts as
are known to the officer, that the alien could establish eligibility
for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the AO
determines that the noncitizen does not have a credible fear of
persecution or torture, the noncitizen may request that an IJ review
that determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 208.33(b)(2)(v), 1208.30(g).
If the AO (or an IJ reviewing the AO's decision) determines that a
noncitizen has a credible fear of persecution or torture, USCIS can
refer the noncitizen to an immigration court for adjudication of the
noncitizen's claims in section 240 removal proceedings, 8 CFR
208.30(f), 8 CFR 1208.30(g)(2)(iv)(B), and the noncitizen may
subsequently file a defensive asylum application with the court during
those proceedings, see 8 CFR 1240.1(a)(1)(ii). Alternatively, USCIS can
retain jurisdiction over the application for asylum for further
consideration in an asylum merits interview. See 8 CFR 208.30(f).
During an asylum merits interview, a positive credible fear
determination is treated as the asylum application, and strict
timelines thereafter govern the applicant's case before both USCIS and
EOIR. See 8 CFR 208.2(a)(1)(ii), 208.3(a)(2), 208.4(b)(2), 208.9(a)(1),
(e)(1)-(2), (g)(2), (i), 1240.17. The AO may grant asylum, subject to
review within USCIS, where the noncitizen is eligible and warrants a
grant as a matter of discretion. 8 CFR 208.14(b). If the noncitizen is
not eligible or does not warrant a grant of asylum as a matter of
discretion, the AO refers the application to EOIR. 8 CFR 208.14(c)(1).
Where USCIS does not grant asylum, the AO's decision will also include
a determination on eligibility for statutory withholding of removal and
CAT protection based on the record before USCIS. 8 CFR 208.16(a),
(c)(4).
For cases referred to EOIR following an asylum merits interview,
the written record of the positive credible fear determination serves
as the asylum application, 8 CFR 1240.17(e), and the record the AO
developed during the asylum merits interview, as supplemented by the
parties, serves as the record before the IJ, 8 CFR 1240.17(c),
(f)(2)(i)(A)(1), (f)(2)(ii)(B). The IJ reviews applications for asylum
de novo and also reviews applications for statutory withholding of
removal and CAT protection de novo where USCIS found the noncitizen
ineligible for such protection. 8 CFR 1240.17(i)(1). However, where
USCIS found the noncitizen eligible for statutory withholding of
removal or CAT
[[Page 48720]]
protection, IJs must give effect to USCIS's eligibility determination
unless DHS demonstrates, through evidence or other testimony that
specifically pertains to the noncitizen and was not in the record of
proceedings for the asylum merits interview, that the noncitizen is not
eligible for such protection. 8 CFR 1240.17(i)(2). With a limited
exception, DHS may not appeal the grant of any protection for which the
AO determined the noncitizen eligible. Id.
3. Lawful Pathways Condition on Asylum Eligibility
On March 20, 2020, the Director of the Centers for Disease Control
and Prevention (``CDC'') issued an order under 42 U.S.C. 265 and 268
suspending the introduction of certain noncitizens from foreign
countries or places where the existence of a communicable disease
creates a serious danger of the introduction of such disease into the
United States and the danger is so increased by the introduction of
persons from the foreign country or place that a temporary suspension
of such introduction is necessary to protect the public health.\45\ The
CDC's Title 42 public health Order was extended multiple times.\46\
While the Title 42 public health Order was in effect, noncitizens who
did not have proper travel documents were generally not processed into
the United States; they were instead 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 INA. Circumvention of Lawful Pathways, 88 FR 11704,
11705 (Feb. 23, 2023) (``Circumvention of Lawful Pathways NPRM''). In
early 2023, the President announced that the Administration expected to
end the public health emergency on May 11, 2023, which would cause the
then-operative Title 42 public health Order to end. See id. at 11708.
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\45\ CDC, Order Under Sections 362 & 365 of the Public Health
Services Act (42 U.S.C. 265, 268): Order Suspending Introduction of
Certain Persons from Countries Where a Communicable Disease Exists
(Mar. 20, 2020), https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf.
\46\ 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[ed] 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'').
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As the Departments stated in the Circumvention of Lawful Pathways
rule, absent further action, the end of the Title 42 public health
Order was expected to cause encounters with noncitizens seeking to
enter the United States at the SWB to rise to or remain at all-time
highs--as high as 11,000 migrants daily. 88 FR at 31331, 31315. And
many of these individuals would be entitled to remain in the United
States pending resolution of their asylum and protection claims. See
INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii) (not allowing for
removal of those found to have a credible fear pending further
consideration of the asylum claim); see also 88 FR at 31363 (noting
that ``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''). The Departments thus faced a looming
urgent situation: absent policy change, the end of the Title 42 public
health Order was expected to result in many more migrants crossing the
border and asserting claims of fear or seeking protection, which would
in turn exceed the border security and immigration systems' capacity to
process migrants in a safe, expeditious, and orderly way. See 88 FR at
31363. To address this expected increase in the number of migrants at
the SWB and adjacent coastal borders seeking to enter the United States
without authorization, the Departments promulgated the Circumvention of
Lawful Pathways rule. See 88 FR 31314.
The Circumvention of Lawful Pathways rule, which became effective
on its public inspection date, May 11, 2023, id., and applies to those
who enter during a two-year period, imposes a rebuttable presumption of
asylum ineligibility on certain noncitizens who fail to pursue safe,
orderly, and lawful processes for entry into the United States or seek
protection in another qualifying country through which they traveled. 8
CFR 208.33(a), 1208.33(a). The rebuttable presumption applies to
noncitizens who enter the United States from Mexico at the SWB or
adjacent coastal borders without documents sufficient for lawful
admission where the entry is: (1) between May 11, 2023, and May 11,
2025; (2) subsequent to the end of implementation of the Title 42
public health Order issued on August 2, 2021, and related prior orders
issued pursuant to the authorities in 42 U.S.C. 265 and 268 and the
implementing regulation at 42 CFR 71.40; and (3) after the noncitizen
traveled through a country other than their country of citizenship,
nationality, or, if stateless, last habitual residence, that is a party
to the Refugee Convention or Refugee Protocol. 8 CFR 208.33(a)(1),
1208.33(a)(1).
The presumption does not apply to UCs or to noncitizens who availed
themselves of or were traveling with a family member who availed
themselves of certain safe, orderly, and lawful pathways--specifically
those who (1) received 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 but
who can demonstrate 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. 8 CFR 208.33(a)(2), 1208.33(a)(2).
Noncitizens may also overcome the presumption by demonstrating by a
preponderance of the evidence that ``exceptionally compelling
circumstances exist.'' 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i). Such
circumstances necessarily exist where, at the time of entry, the
noncitizen or a family member 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) was a victim of a severe form of
trafficking in persons under 8 CFR 214.11(a). 8 CFR 208.33(a)(3)(i)(A)-
(C), (ii), 1208.33(a)(3)(i)(A)-(C), (ii). A noncitizen presumed
ineligible for asylum under the rule may still apply for statutory
withholding of removal or CAT protection and thus may not be removed to
a country where it is more likely than not that they will be persecuted
because of a protected ground or tortured.
The condition on asylum eligibility in the Circumvention of Lawful
Pathways rule (``Lawful Pathways condition'') applies to asylum
applications before USCIS and EOIR. 8 CFR 208.13(f), 1208.13(f). It
also applies during credible fear screenings. 8 CFR 208.33(b),
1208.33(b). Noncitizens subject to expedited removal who indicate a
fear of persecution or an intention to apply for asylum are currently
first screened to assess whether the rebuttable presumption applies
and, if so, whether the noncitizen is able to rebut the presumption. 8
CFR 208.33(b). If the AO
[[Page 48721]]
determines that the rebuttable presumption does not apply or the
noncitizen has rebutted the presumption, the general procedures
governing the credible fear process then apply. See 8 CFR
208.33(b)(1)(ii). On the other hand, if the AO determines that the
noncitizen is covered by the rebuttable presumption and no 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 8 CFR
208.33(b)(1)(i), (b)(2). The Circumvention of Lawful Pathways rule
currently provides that, if a noncitizen has established a reasonable
possibility of persecution or torture, then DHS will issue a notice to
appear (``NTA'') to commence section 240 removal proceedings and may
not refer the case to the asylum merits interview process. 8 CFR
208.33(b)(2)(ii).
Where a noncitizen requests review by an IJ, the IJ reviews the
negative credible fear finding de novo. See 8 CFR 1208.33(b). If the IJ
determines that the noncitizen has made a sufficient showing that the
rebuttable presumption does not apply to them or that they can rebut
the presumption, and that the noncitizen has established a significant
possibility of eligibility for asylum, statutory withholding of
removal, or CAT protection, the IJ issues a positive credible fear
finding and the case proceeds under existing procedures. See 8 CFR
208.33(b)(2)(v)(A), 1208.33(b)(2)(i). If the IJ determines that the
noncitizen is covered by the rebuttable presumption and it has not been
rebutted, but the noncitizen has established a reasonable possibility
of persecution or torture, the IJ issues a positive credible fear
finding and DHS will issue an NTA to commence section 240 removal
proceedings. 8 CFR 208.33(b)(2)(v)(B), 1208.33(b)(2)(ii). And finally,
if the IJ issues a negative credible fear determination, the case is
returned to DHS for removal of the noncitizen. See 8 CFR
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 USCIS
reconsider the AO's negative determination, although USCIS may, in its
sole discretion, reconsider a negative determination. See 8 CFR
208.33(b)(2)(v)(C).
A noncitizen who has not established during expedited removal
proceedings a significant possibility of eligibility for asylum because
of the Lawful Pathways condition 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. See 8 CFR 1208.33(b)(4). Where a principal
asylum applicant in section 240 removal proceedings is eligible for
statutory withholding of removal or withholding of removal under the
CAT and would be granted asylum but for the rebuttable presumption, and
where either an accompanying spouse or child does not independently
qualify for asylum or other protection from removal or the principal
asylum applicant has a spouse or child who would be eligible to follow
to join that applicant, the presumption shall be deemed rebutted as an
exceptionally compelling circumstance. 8 CFR 1208.33(c).
B. Justification
1. Global Migration at Record Levels
Border encounters in the 1980s, 1990s, and 2000s consisted
overwhelmingly of single adults from Mexico, most of whom were
migrating for economic reasons.\47\ Beginning in the 2010s, a growing
share of migrants were from northern Central America \48\ and, since
the late 2010s, from countries throughout the Americas.\49\ Since 2010,
the makeup of border crossers has significantly changed, expanding from
Mexican single adults to single adults and families from the northern
Central American countries, and now to single adults and families from
throughout the hemisphere (and beyond). Those encountered also have
been more likely to seek asylum and other forms of relief or
protection, straining the Departments' capacity to process individuals
through expedited removal.\50\
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\47\ See 88 FR at 11708. According to OHSS Persist data and
historic Office of Immigration Statistics (``OIS'') Yearbooks of
Immigration Statistics, Mexican nationals accounted for 87 to over
99 percent of apprehensions between POEs of persons entering without
inspection between 1981 and 2010. See March 2024 OHSS Persist
Dataset; see, e.g., INS, 1981 Statistical Yearbook of the
Immigration and Naturalization Service 119 tbl. 53 (1981); INS, 1999
Statistical Yearbook of the Immigration and Naturalization Service
208-11 tbl. 56 (Mar. 2002), https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1999.pdf. For more
information about Mexican migrants' demographics and economic
motivations during some of that time period, see Jorge Durand et
al., The New Era of Mexican Migration to the United States, 86 J.
Am. Hist. 518, 525-27, 530-31, 535-36 (1999).
\48\ Northern Central America refers to El Salvador, Guatemala,
and Honduras. 88 FR at 11708 n.35.
\49\ According to OHSS Persist data, Mexican nationals continued
to account for 89 percent of total CBP SWB encounters in FY 2010,
with northern Central Americans accounting for 8 percent and all
other nationalities accounting for 3 percent. March 2024 OHSS
Persist Dataset. Northern Central Americans' share of total CBP SWB
encounters increased to 21 percent by FY 2012 and averaged 48
percent from FY 2014 to FY 2019, the last full year before the start
of the COVID-19 pandemic. Id. Nationals from all other countries
except Mexico and the northern Central American countries accounted
for an average of 5 percent of total CBP SWB encounters from FY 2010
to FY 2013, and for 10 percent of total encounters from FY 2014 to
FY 2019. Id. This transition has accelerated since the start of FY
2021, as Mexican nationals accounted for approximately 32 percent of
total CBP SWB encounters in FY 2021 through March 2024, including
roughly 29 percent in the first six months of FY 2024; northern
Central Americans accounted for roughly 25 percent from FY 2021
through March 2024 (20 percent in FY 2024 through March 2024); and
all other countries accounted for roughly 42 percent from FY 2021
through March 2024, including roughly 51 percent of FY 2024
encounters through March 2024. Id.
\50\ For noncitizens encountered at the SWB from FY 2014 to FY
2019 who were placed in expedited removal proceedings, roughly 6
percent of Mexican nationals made fear claims that were referred to
USCIS for determination compared to roughly 57 percent of people
from northern Central America and 90 percent of all other
nationalities. OHSS analysis of Enforcement Lifecycle data as of
December 31, 2023; see also 88 FR at 11709 n.37.
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In the early 2010s, U.S. Border Patrol (``USBP'') encounters along
the SWB reached modern lows, averaging fewer than 400,000 per year from
2011 to 2018. See 88 FR at 11708. This followed decades during which
annual USBP encounters routinely numbered in the millions; however, the
overall share of those who were processed for expedited removal and
claimed a fear never exceeded 2 percent until 2011. Id. at 11708,
11716. Despite these historically low encounter numbers, the
Departments faced significant challenges in 2014 due to an
unprecedented surge in migration by UCs and in 2016 due to a surge in
family units at the border--demographics that present unique challenges
due to their vulnerability.\51\
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\51\ Decl. of Blas Nu[ntilde]ez-Neto ] 6, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
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From FY 2017 to FY 2019, however, encounters between the POEs along
the SWB more than doubled, to more than 850,000, and--following a
significant drop during the beginning of the COVID-19 pandemic--
continued to increase in FY 2021 and FY 2022.\52\ In FY 2021, USBP
encounters between POEs along the SWB reached a level not seen since
the early 2000s--over 1.6 million.\53\ In FY 2022, encounters at the
[[Page 48722]]
SWB reached a new high-water mark, with total USBP encounters exceeding
2.2 million.\54\ FY 2023 saw a slight drop, but USBP encounters
remained high--over 2.0 million.\55\ By early 2023, while the Title 42
public health Order was in place, total encounters at the SWB--
referring to the number of times U.S. officials encountered noncitizens
attempting to cross the SWB without authorization to do so either
between or at POEs--had reached all-time highs.\56\ This dramatic
increase in encounters has coincided with a substantial and--setting
aside the period of time when the Title 42 public health Order was in
effect--persistent increase in the number of noncitizens making fear
claims in recent years. See 88 FR at 11716.\57\ In 2019--prior to the
implementation of the Title 42 public health Order--44 percent of
noncitizens encountered at the SWB placed in expedited removal
proceedings claimed fear, resulting in 98,000 credible fear screenings.
Id. The number of fear claims returned to these historically high
levels after the Title 42 public health Order ended. From May 2023
through March 2024, approximately 54 percent of noncitizens encountered
at and between SWB POEs who were subject to expedited removal claimed
fear (approximately 169,000 fear claims out of 315,000 noncitizens
processed for expedited removal, excluding cases processed for
expedited removal but reprocessed into other dispositions by ICE).\58\
These high numbers of both encounters and fear claims combine to
further compound the significant stress on the immigration system.
---------------------------------------------------------------------------
\52\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing
historic data on SWB encounters).
\53\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing
historic data on SWB encounters).
\54\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing
historic data on SWB encounters).
\55\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing
historic data on SWB encounters).
\56\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (providing
historic data on SWB encounters). During the initial seven months of
FY 2023, while the Title 42 public health Order was still in effect,
total CBP encounters surged to an all-time high of 1.4 million--an
11 percent increase over the same period in FY 2022 and nearly
double the encounters recorded in FY 2021 for the same time period.
\57\ The percentage of noncitizens encountered at and between
SWB POEs processed for expedited removal who made fear claims
steadily rose from 16 percent in FY 2013 to 44 percent in FY 2019,
experienced a temporary dip in FY 2020 at the start of the Title 42
public health Order, and then resumed an upward trajectory, reaching
a peak of 59 percent in FY 2023, marking the highest level of fear
claims as a share of the SWB expedited removal population ever
recorded. See OHSS Enforcement Lifecycle as of December 31, 2023;
March 2024 OHSS Persist Dataset. Data on the exact number of
noncitizens encountered at the SWB processed for expedited removal
who made fear claims is not available for years prior to FY 2013,
but OHSS estimates that about 84 percent of all fear claims made in
prior years were made by noncitizens encountered at and between SWB
POEs. Even if 100 percent of fear claims made before FY 2013 were
made by noncitizens encountered at the SWB, the level of fear claims
as a share of SWB encounters at and between POEs processed for
expedited removal in 2023 would be the highest ever.
\58\ OHSS analysis of data downloaded from CBP UIP on April 2,
2024.
---------------------------------------------------------------------------
Much of this growth in encounters was driven by nationalities that
DHS had never before encountered in large numbers at the border--
including nationals of countries such as Brazil, Colombia, Cuba,
Ecuador, Haiti, Nicaragua, Peru, and Venezuela, as well as migrants
from Eastern Hemisphere countries.\59\ Because of this, DHS has had to
undertake a focused diplomatic effort, working closely with the
Department of State, to enter into commitments with countries to
facilitate the return of their nationals. However, despite this
concerted effort, it remains difficult for DHS to repatriate nationals
of some of these countries who do not establish a legal basis to remain
in the United States, including those from the Eastern Hemisphere--
substantially limiting DHS's ability to impose consequences on those
nationals.\60\
---------------------------------------------------------------------------
\59\ Nationals from all countries other than Mexico and the
northern Central American countries accounted for less than 5
percent of total CBP SWB encounters each year between FY 1981 and FY
2010, an average of 5 percent of SWB encounters from FY 2010 to FY
2013, and 10 percent of total SWB encounters from FY 2014 to FY
2019. The increase in encounters from these new countries of origin
has accelerated since the start of FY 2021, as non-Mexican, non-
northern Central American countries accounted for 42 percent of
encounters from the start of FY 2021 through the second quarter of
FY 2024, including 51 percent of FY 2024 encounters through March
2024. OHSS analysis of historic OIS Yearbooks of Immigration
Statistics and March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border Encounters
by Citizenship'').
\60\ See 88 FR at 11708-11.
---------------------------------------------------------------------------
Overall, countries other than Mexico and the northern Central
American countries of El Salvador, Guatemala, and Honduras accounted
for 43 percent of total SWB encounters from January 2021 to March
2024--including 51 percent of total SWB encounters in FY 2023 and in
the first two quarters of FY 2024--up from 10 percent from FY 2014 to
December 2020.\61\ Encounters of Mexican nationals have fallen to 29
percent of total SWB encounters during this time frame--an enormous
change from historical trends that has sweeping ramifications for the
border and immigration system, which are detailed below.\62\
---------------------------------------------------------------------------
\61\ March 2024 OHSS Persist Dataset; see also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border Encounters by
Agency and Selected Citizenship'').
The application of title 42 authorities at the SWB also altered
migratory patterns, in part by incentivizing individuals who were
expelled--without being issued a removal order, which, unlike a
title 42 expulsion, carries immigration consequences--to try to re-
enter, often multiple times. See 88 FR at 11709. The majority of
repeat encounters were of Mexican and northern Central American
nationals, who were much more likely than others to be expelled to
the Mexican side of the U.S.-Mexico border--between FY 2020 and FY
2023, 72 percent of Mexican and 50 percent of northern Central
American encounters at and between SWB POEs resulted in title 42
expulsion, contrasting sharply with 8 percent of non-Mexican and
non-northern Central American encounters experiencing similar
outcomes. March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border
Encounters Book-Outs by Selected Citizenship'').
Even accounting for increased repeat encounters, unique
encounters at and between SWB POEs also hit all-time highs in each
year from FY 2021 to FY 2023. Nationals of countries other than
Mexico and the northern Central America countries account for an
even larger share of the growth in unique encounters, comprising 51
percent of unique encounters from January 2021 to March 2024, up
from 9 percent in FY 2014 to December 2020. March 2024 OHSS Persist
Dataset.
\62\ March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------
The increase in migration at the SWB is consistent with global and
regional trends. Over the past three years, migration around the world
has reached levels not seen since World War II.\63\ The Western
Hemisphere is no exception and has been facing historic levels of
migration that have severely strained the immigration systems of
countries throughout the region.\64\ There is a growing consensus
within the region that this shared challenge cannot be solved without
collective action--a consensus reflected by the 22 countries that have
supported the Los Angeles Declaration on Migration and Protection,
which proposes a comprehensive approach to managing migration
throughout the region.\65\
---------------------------------------------------------------------------
\63\ Decl. of Blas Nu[ntilde]ez-Neto ] 2, M.A. v. Mayorkas, No.
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
\64\ See 88 FR at 11710-11.
\65\ See The White House, Los Angeles Declaration on Migration
and Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
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[[Page 48723]]
As it prepared for the return to title 8 processing of all
noncitizens, DHS led a comprehensive, all-of-government planning and
preparation effort that lasted more than 18 months.\66\ This included
record deployments of personnel, infrastructure, and resources to
support DHS's frontline personnel at a substantial cost to other DHS
operations.\67\ This effort also included the development and
implementation of policy measures, including the joint DHS and DOJ
Circumvention of Lawful Pathways rule and complementary measures, which
were critically important components of DHS preparations to manage the
anticipated significant influx of migrants associated with the end of
the Title 42 public health Order's application at the border.\68\ And
the United States Government's efforts were complemented by a range of
measures taken by foreign partners in the region, such as Mexico's
independent decision to continue to accept the return of certain non-
Mexican migrants after May 11, 2023,\69\ and campaigns by Colombia and
Panama to attack smuggling networks operating in the Dari[eacute]n
Gap.\70\
---------------------------------------------------------------------------
\66\ Decl. of Blas Nu[ntilde]ez-Neto ] 8, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
\67\ Id.
\68\ Id.
\69\ The White House, Mexico and United States Strengthen Joint
Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
\70\ Decl. of Blas Nu[ntilde]ez-Neto ] 40, M.A. v. Mayorkas, No.
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
---------------------------------------------------------------------------
The Circumvention of Lawful Pathways rule has strengthened the
consequences in place for those who cross the border irregularly and is
a critical component of the Government's regional strategy. DHS has
also put in place complementary measures to streamline expedited
removal processing to more quickly apply consequences to those who fail
to use lawful pathways. These measures include holding noncitizens
processed for expedited removal for the pendency of their credible fear
interviews in CBP facilities to maximize the use of expedited removal
and limit noncitizens absconding; \71\ changing the consultation period
such that credible fear interviews take place no earlier than 24 hours
after the noncitizen's acknowledgement of receipt of information
explaining the credible fear process; \72\ returning certain third-
country nationals to Mexico, consistent with established processes
under the INA; \73\ permitting certain non-Mexican citizens to withdraw
their application for admission and voluntarily return to Mexico; \74\
and increasing USCIS's capacity to train and prepare additional staff
temporarily detailed as AOs to conduct credible fear interviews.\75\
These measures, combined with existing processes and resources and work
with regional and international partners to disrupt irregular migration
and smuggling networks, seek to form a comprehensive framework for
managing migratory flows to the border--one that seeks to
disincentivize noncitizens from putting their lives in the hands of
callous smugglers by crossing the SWB between POEs and to incentivize
noncitizens to use lawful, safe, and orderly pathways and processes
instead.
---------------------------------------------------------------------------
\71\ Id. ] 5.
\72\ Id.
\73\ See, e.g., The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023),
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (noting the United States and Mexico's commitment 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, and
noting that Mexico will continue to accept back migrants on
humanitarian grounds).
\74\ Decl. of Blas Nu[ntilde]ez-Neto ] 5, M.A. v. Mayorkas, No.
23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
\75\ Id.
---------------------------------------------------------------------------
Without the Circumvention of Lawful Pathways rule and complementary
measures, DHS assesses that irregular migration at the border would be
substantially higher today. DHS saw evidence of very high levels of
irregular migration in the days leading up to the end of the Title 42
public health Order on May 11, 2023.\76\ A historic surge in migration
culminated with what were then the highest recorded encounter levels in
U.S. history over the days immediately preceding May 11, which placed a
significant strain on DHS's operational capacity at the border.\77\
Encounters between POEs almost doubled from an average of approximately
4,900 per day the week ending April 11, 2023, to an average of
approximately 9,500 per day the week ending May 11, 2023, including an
average of approximately 10,000 encounters immediately preceding the
termination of the Title 42 public health Order (from May 8 to May
11).\78\ The sharp increase in encounters between POEs during the 30
days preceding May 11 represented the largest month-over-month increase
in almost two decades--since January 2004.\79\
---------------------------------------------------------------------------
\76\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2); Decl. of Matthew J. Hudak ] 11, Florida v. Mayorkas, No. 22-
cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
\77\ Decl. of Blas Nu[ntilde]ez-Neto ] 9, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2).
\78\ Id.
\79\ Id.
---------------------------------------------------------------------------
As a consequence of the elevated flows USBP experienced in the days
leading up to the end of the Title 42 public health Order, USBP saw a
steady increase in the numbers of noncitizens in custody, leading to
significant operational challenges.\80\ From May 8 to 11, 2023, USBP's
daily in-custody average was approximately 27,000 noncitizens, with a
single-day peak of approximately 28,500 on May 10--well above its
holding capacity at that time of approximately 18,500.\81\ During this
same time frame, eight out of nine SWB sectors were over their holding
capacity--with four sectors (El Centro, El Paso, Rio Grande Valley, and
Yuma) at more than 50 percent over their holding capacity and one
sector (Tucson) at more than two-and-a-half times over its holding
capacity.\82\
---------------------------------------------------------------------------
\80\ Id. ] 10.
\81\ Id.
\82\ Id.
---------------------------------------------------------------------------
This record number of encounters between POEs severely strained DHS
operations and resources, as well as the resources of other Federal
Government agencies, local communities, and non-governmental
organizations (``NGOs'').\83\ CBP redirected limited resources from
other mission needs--in particular, legitimate travel and trade
operations, the volume of which by that time had surpassed pre-pandemic
levels--to focus on processing apprehended noncitizens.\84\
Overcrowding in CBP facilities increased the potential for health and
safety risks to noncitizens, Government personnel, and contract support
staff. Such risks were exacerbated by an increase in the average time
in custody, which generally occurs when there are large numbers of
noncitizens in custody who must be processed.\85\ To manage these
conditions, USBP sectors redirected personnel from the field to perform
tasks for noncitizens in custody, including processing, transporting,
and escorting noncitizens.\86\ This, in turn, decreased USBP's ability
to respond to noncitizens avoiding detection, other agency calls for
assistance, and noncitizens in distress.\87\
---------------------------------------------------------------------------
\83\ Id. ] 11.
\84\ Id.
\85\ Id.
\86\ Id.
\87\ Id.
---------------------------------------------------------------------------
The surge in encounters between POEs immediately preceding the end
of the Title 42 public health Order also led
[[Page 48724]]
to significant challenges for local border communities.\88\ For
example, in the days leading up to May 11, 2023, local community
resources in El Paso, Texas, were quickly overwhelmed as the number of
noncitizens arriving in the United States surpassed the city's
capacity.\89\ In anticipation of an influx of noncitizens arriving to
the city--an influx that ultimately materialized--the city declared a
state of emergency, as more than 1,000 noncitizens were sleeping on the
sidewalks and left without shelter.\90\ Similarly, the cities of
Brownsville and Laredo, Texas, declared states of emergency to allow
them to seek additional resources to bolster their capacities.\91\ The
surge in encounters also placed strain on interior cities. In May 2023,
for instance, New York's Governor declared a State Disaster
Emergency.\92\
---------------------------------------------------------------------------
\88\ Id. ] 12.
\89\ Id.
\90\ Id.
\91\ Id.
\92\ See N.Y. Exec. Order No. 28, Declaring a Disaster Emergency
in the State of New York (May 9, 2023), https://www.governor.ny.gov/executive-order/no-28-declaring-disaster-emergency-state-new-york;
see also Mayor of Chicago Emergency Exec. Order No. 2023-2 (May 9,
2023).
---------------------------------------------------------------------------
Since their implementation in May 2023, the Circumvention of Lawful
Pathways rule and complementary measures have helped DHS to better
manage migratory flows. Between May 12, 2023, and March 31, 2024, CBP
placed into expedited removal more than 970 individuals encountered at
and between POEs each day on average, and USCIS conducted a record
number of credible fear interviews (more than 152,000) resulting from
such cases. This is more interviews from SWB encounters at and between
POEs during the span of ten and a half months than in any full fiscal
year prior to 2023, and more than twice as many as the annual average
from FY 2010 to FY 2019.\93\ On average, since May 12, 2023, USCIS has
completed approximately 3,300 cases each week, more than double its
average weekly completed cases from FY 2014 to FY 2019.\94\ In
addition, in FY 2023, IJs conducted over 38,000 credible fear and
reasonable fear reviews, the highest figure on record since at least
2000.\95\ These efforts have significantly reduced the median time to
process credible fear cases. Since May 12, 2023, the median time to
refer noncitizens claiming a fear for credible fear interviews
decreased by 77 percent from its historical average, from 13 days in
the FY 2014 to FY 2019 pre-pandemic period to 3 days in the four weeks
ending March 31, 2024; for those who receive negative fear
determinations, the median time from encounter to removal, in the same
time frames, decreased by 85 percent from 73 days to 11 days.\96\
---------------------------------------------------------------------------
\93\ Pre-May 12, 2023, data from OHSS Lifecycle Dataset; post-
May 11, 2023, data from OHSS analysis of data downloaded from UIP on
April 2, 2024.
\94\ Completed cases are those with credible fear interviews
that have been adjudicated or that have been closed. Pre-May 12,
2023, data from OHSS Lifecycle Dataset; post-May 11, 2023, data from
OHSS analysis of data downloaded from UIP on April 2, 2024.
\95\ EOIR, Adjudication Statistics: Credible Fear and Reasonable
Fear Review Decisions (Apr. 27, 2023), https://www.justice.gov/eoir/media/1344816/dl?inline.
\96\ Historic processing times are based on OHSS Enforcement
Lifecycle data as of December 31, 2023; post-May 12 estimates are
based on OHSS analysis of operational CBP, ICE, USCIS, and DOJ/EOIR
data downloaded from UIP on April 2, 2024. Encounter-to-removal
cases include noncitizens removed after being placed in expedited
removal proceedings, claiming fear, and receiving a negative fear
determination or an administrative closure that is not referred to
EOIR. Comparisons to the pandemic period are not relevant because
many noncitizens who normally would have been referred for expedited
removal processing were instead expelled under title 42 authority.
---------------------------------------------------------------------------
The increase in referrals into expedited removal proceedings,
combined with the streamlining of the process, has had tangible
results. From May 12, 2023, to March 31, 2024, DHS removed more than
662,000 individuals--more removals than in any full fiscal year since
2013 and an indication that the increased efficiencies gained through
these measures have enabled DHS to swiftly impose immigration
consequences when individuals do not establish a legal basis to remain
in the United States.\97\ Over the first six months immediately
following May 12, 2023, DHS saw a significant decrease in border
encounters between POEs. After peaking at 9,700 per day in the seven
days just before the end of the Title 42 public health Order, daily SWB
encounters between POEs decreased by 45 percent to an average of 5,200
per day for the period from May 12, 2023, to November 30, 2023.\98\
While this months-long trend included variability over shorter periods,
border encounters between POEs remained below the levels projected to
occur in the absence of the Circumvention of Lawful Pathways rule and
complementary measures.\99\
---------------------------------------------------------------------------
\97\ OHSS analysis of data downloaded from UIP on April 2, 2024;
see OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024); OHSS,
2022 Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 2023),
https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf
(noncitizen removals, returns, and expulsions for FY 1892 to FY
2022).
\98\ Pre-May 12, 2023, data from March 2024 OHSS Persist
Dataset; post-May 11, 2023, data from OHSS analysis of data
downloaded from UIP on December 12, 2023.
\99\ Decl. of Blas Nu[ntilde]ez-Neto ] 4, E. Bay Sanctuary
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt.
176-2) (noting that in the absence of the rule, DHS planning models
suggest that irregular migration could meet or exceed the levels
that DHS recently experienced in the days leading up to the end of
the Title 42 public health Order).
---------------------------------------------------------------------------
While the Circumvention of Lawful Pathways rule and complementary
measures have yielded demonstrable results, the resources provided to
the Departments still have not kept pace with irregular migration.
After months of relatively lower encounter levels between POEs
following the changes put in place after May 11, 2023, encounter levels
increased through the fall of 2023,\100\ and December 2023 saw the
highest levels of encounters between POEs in history, including a surge
in which border encounters between POEs exceeded 10,000 for three
consecutive days and averaged more than 8,000 a day for the month.\101\
That surge in migration was focused increasingly on western areas of
the border--California and Arizona--that had not been the focal point
of migration over the prior two years, and in areas that are
geographically remote and challenging to respond to. For instance, the
Tucson sector's average full-year encounter total for the pre-pandemic
period (FY 2014 to FY 2019) was approximately 62,000; by contrast, in
November and December of 2023, the sector recorded approximately 64,000
and 80,000 encounters, respectively.\102\ And while the number of
encounters between POEs since December 2023 has decreased, consistent
with seasonal migration flows and as a result of increased enforcement,
they still remain at historically high levels--USBP encounters from
January 2024 to March 2024 are just 5 percent below the levels
[[Page 48725]]
reached during the same months in 2023,\103\ while some USBP sectors,
such as Tucson and San Diego, have seen increases of 83 percent and 62
percent, respectively, from the second quarter of FY 2023, and Tucson
is on pace for an all-time high number of annual encounters.\104\
---------------------------------------------------------------------------
\100\ See CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last
visited May 27, 2024) (providing monthly figures for 2021 to 2024).
\101\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024); OHSS, 2022
Yearbook of Immigration Statistics 103-04 tbl. 39 (Nov. 2023),
https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf; -
Priscilla Alvarez, Authorities Encountering Record Number of
Migrants at the Border Each Day Amid Unprecedented Surge, CNN (Dec.
22, 2023), https://www.cnn.com/2023/12/22/politics/border-surge-record-amounts/.
\102\ See March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border Encounters
by Sector'').
\103\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border
Encounters by Sector'').
\104\ OHSS analysis of March 2024 OHSS Persist Dataset; see also
OHSS, Immigration Enforcement and Legal Processes Monthly Tables,
https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW Border
Encounters by Sector'').
---------------------------------------------------------------------------
Since the lifting of the Title 42 public health Order, then, it has
become increasingly clear that DHS's ability to process individuals
encountered at the SWB under applicable title 8 authorities--including,
critically, to deliver timely consequences to a meaningful proportion
of those who do not establish a legal basis to remain in the United
States--is significantly limited by the lack of resources and tools
available to the Departments. In response to the record high levels of
encounters between POEs in December 2023, DHS had to take extraordinary
steps to shift personnel and resources to the affected sectors: CBP
curtailed or suspended operations at a number of POEs, and, just before
December 25, 2023, CBP reassigned 246 officers to support USBP
operations. As part of these extraordinary measures: vehicular traffic
through the Eagle Pass, Texas, POE was suspended on November 27, 2023;
the POE in Lukeville, Arizona, was closed on December 4, 2023; rail
operations at POEs in El Paso and Eagle Pass, Texas, were suspended on
December 18, 2023; \105\ the Morley Gate POE in Nogales, Arizona, which
was closed due to construction and slated to be reopened in November
2023, delayed its reopening; \106\ and operations at Pedestrian West,
part of the San Ysidro POE in San Diego, California, were suspended on
December 9, 2023.\107\ On January 4, 2024, once the volume of migrants
had diminished and CBP officers were able to return to normal duties,
port operations in these locations resumed.\108\
---------------------------------------------------------------------------
\105\ See CBP, Statement from CBP on Operations in Eagle Pass,
Texas and Lukeville, Arizona (Nov. 27, 2023), https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-eagle-pass-texas-and-lukeville-arizona.
\106\ See CBP, Statement on Operational Changes and Resumption
of Rail Operations in Eagle Pass and El Paso (Dec. 22, 2023),
https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operational-changes-and-resumption-rail-operations.
\107\ See CBP, Statement from CBP on Operations in San Diego,
California (Dec. 7, 2023), https://www.cbp.gov/newsroom/national-media-release/statement-cbp-operations-san-diego-california.
\108\ See CBP, Statement from CBP on Resumption of Operations in
Arizona, California, and Texas (Jan. 2, 2024), https://www.cbp.gov/newsroom/national-media-release/statement-cbp-resumption-field-operations-arizona-california-and/.
---------------------------------------------------------------------------
The decision to close POEs was not one taken lightly. The United
States Government fully understands the impacts of such closures on
local communities on both sides of the border, both socially and
economically.\109\ Closing international POEs is a measure of last
resort, and one that DHS was compelled to take in order to reassign its
resources to support frontline agents in a challenging moment.
---------------------------------------------------------------------------
\109\ See, e.g., Russel Contreras, U.S.-Mexico Border Closures
Could Cost Billions, Axios (Dec. 22, 2023), https://www.axios.com/2023/12/22/us-mexico-border-closures-could-cost-billions (discussing
evidence of the ``devastating consequences'' that follow from
partial border closings); cf. Bryan Roberts et al., The Impact on
the U.S. Economy of Changes in Wait Times at Ports of Entry: Report
to U.S. Customs and Border Protection 5 (Apr. 2013), https://ebtc.info/wp-content/uploads/2014/07/U.S.C.-Create-CBP-Final-Report.pdf (discussing the benefits of adding staffing to land
border POEs).
---------------------------------------------------------------------------
In addition to concerted efforts to strengthen and maximize
consequences, including through new regulations, the United States
Government has engaged intensively with the Government of Mexico to
identify coordinated measures both countries could take, as partners,
to address irregular migration. During the period before and after the
December surge, the United States Government and the Government of
Mexico held numerous talks at the highest levels of government to
address migration. For example, President Biden and President of Mexico
Andr[eacute]s Manuel L[oacute]pez Obrador spoke on December 21, 2023,
and February 3, 2024.\110\ During their conversation on December 21,
the presidents agreed that additional enforcement actions were urgently
needed so that the POEs that were temporarily closed could reopen.\111\
In subsequent high-level meetings, both countries committed to
expanding efforts to increase enforcement measures to deter irregular
migration, expanding safe and lawful pathways, and strengthening
cooperation.\112\ The Government of Mexico expressed its concern about
the economic impact of the POE closures and committed to increasing
enforcement on key transit routes north.\113\ On January 22, 2024,
after a series of follow-on meetings between United States and Mexican
Cabinet members in Washington, DC, Mexico's Foreign Secretary
enumerated a series of steps that the United States and Mexico
committed to taking to continue to address migration, including
combating human smuggling and trafficking organizations.\114\
---------------------------------------------------------------------------
\110\ See The White House, Readout of President Joe Biden's Call
with President Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico
(Dec. 21, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/; The White
House, Readout of President Joe Biden's Call with President
Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico (Feb. 3, 2024),
https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/03/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-3/.
\111\ The White House, Readout of President Joe Biden's Call
with President Andr[eacute]s Manuel L[oacute]pez Obrador of Mexico
(Dec. 21, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/21/readout-of-president-joe-bidens-call-with-president-andres-manuel-lopez-obrador-of-mexico-2/.
\112\ The White House, Readout of Homeland Security Advisor Dr.
Liz Sherwood-Randall's Trip to Mexico (Feb. 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/07/readout-of-homeland-security-advisor-dr-liz-sherwood-randalls-trip-to-mexico/.
\113\ Id.; see also, e.g., Amna Nawaz, Mexico's Foreign
Secretary Discusses What Her Country Is Doing to Ease Border Crisis,
PBS News Hour (Jan. 25, 2024), https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis; US, Mexico Agree to Strengthen Efforts to Curb
Record Migration, Reuters (Dec. 28, 2023), https://www.reuters.com/world/us-mexico-keep-border-crossings-open-lopez-obrador-says-2023-12-28/.
\114\ See, e.g., Valentine Hilaire & Cassandra Garrison, Mexico,
US Pitch Measures to Ease Pressure on Border, Plan Guatemala Talks,
Reuters (Jan. 22, 2024), https://www.reuters.com/world/americas/mexico-us-guatemala-officials-meet-migration-talks-2024-01-22/; Amna
Nawaz, Mexico's Foreign Secretary Discusses What Her Country Is
Doing to Ease Border Crisis, PBS News Hour (Jan. 25, 2024), https://www.pbs.org/newshour/show/mexicos-foreign-secretary-discusses-what-her-country-is-doing-to-ease-border-crisis (quoting Mexico's Foreign
Affairs Secretary as saying that ``we have done much more law
enforcement to bring down the pressure in the border in the
north'').
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DHS assesses that the surge in late 2023 was likely the result of a
number of factors, including the growing understanding by smugglers and
migrants that DHS's capacity to impose consequences at the border is
limited by the lack of resources and tools that Congress has made
available and the Government of Mexico's operational constraints at the
end of its fiscal year, which limited its ability to enforce its own
immigration laws.\115\ The
[[Page 48726]]
Departments cannot address all of these factors in one rule, but assess
that this rule will significantly increase the ability to deliver
timely decisions and timely consequences at the border within current
resources, combating perceptions and messaging to the contrary.
---------------------------------------------------------------------------
\115\ See Mar[iacute]a Verza, Mexico Halts Deportations and
Migrant Transfers Citing Lack of Funds, AP News (Dec. 4, 2023),
https://apnews.com/article/mexico-immigration-migrants-venezuela-17615ace23d0677bb443d8386e254fbc; Smugglers Are Bringing Migrants To
a Remote Arizona Crossing, Overwhelming Agents, NPR (Dec. 10, 2023),
https://www.npr.org/2023/12/10/1218428530/smugglers-are-bringing-migrants-to-a-remote-arizona-crossing-overwhelming-agents; Adam
Isaacson, Weekly U.S.-Mexico Border Update: Senate Negotiations,
Migration Trends, Washington Office of Latin America (Dec. 15,
2023), https://www.wola.org/2023/12/weekly-u-s-mexico-border-update-senate-negotiations-migration-trends/; Jordan, supra note 27.
---------------------------------------------------------------------------
Encounters between POEs in January 2024 were substantially lower
than December 2023 encounters, consistent with historic seasonal
trends, and encounters in January 2022 and January 2023.\116\ In
February and March 2024, encounter levels increased from the levels in
January but remained significantly lower than in December 2023.\117\
Overall, from January 1 to March 31, 2024, encounters between POEs were
5 percent lower than during the same months in 2023 and 22 percent
lower than those in 2022.\118\ However, despite the overall decrease in
encounters since December 2023, specific areas of the border--in
particular USBP's San Diego and Tucson Sectors--have experienced
localized increases in encounters that have, at times, strained DHS's
holding capacity, adversely impacted local operations, and limited
DHS's ability to swiftly impose consequences on individuals who do not
establish a legal basis to remain in the United States. During the last
week of April 2024, USBP's San Diego Sector encountered an average of
more than 1,400 migrants each day, including many migrants from
countries outside the Western Hemisphere who are more difficult to
process.\119\ The USBP Tucson Sector is experiencing similar,
unprecedented migratory flows and consequent challenges. This high
concentration of encounters, including comparatively large numbers of
migrants who are hard to remove, in a focused geographic area places
particular strain on the immigration enforcement system. This is
particularly true in areas of the border--such as San Diego--where
infrastructure-related capacity constraints limit DHS's ability to
swiftly impose consequences at the border. These factors resulted in
USBP's main processing facility in San Diego reaching over 200 percent
capacity in April 2024, despite a recent expansion of this facility.
---------------------------------------------------------------------------
\116\ OHSS analysis of March 2024 OHSS Persist Dataset.
\117\ OHSS analysis of March 2024 OHSS Persist Dataset.
\118\ OHSS analysis of March 2024 OHSS Persist Dataset.
\119\ See Elliot Spagat, The Latest Hot Spot for Illegal Border
Crossings is San Diego. But Routes Change Quickly, AP News (May 17,
2024), https://apnews.com/article/san-diego-border-asylum-biden-mexico-da1e7b7c81e4e58912deff6d36dbdb9e.
---------------------------------------------------------------------------
Since January 2024, the United States and Mexico have continued to
hold regular, high-level conversations, as partners, to continue to
deepen their collaboration, identify emerging trends, and coordinate
additional steps by both countries to address changing flows. These
meetings have informed operational deployments by both governments,
including the coordinated response to the shift in migratory flows to
the San Diego and Tucson sectors. This extensive ongoing collaboration
was reflected by another bilateral engagement between President Biden
and President L[oacute]pez-Obrador on April 28, 2024, after which the
presidents released a joint statement in which they ``ordered their
national security teams to work together to immediately implement
concrete measures to significantly reduce irregular border crossings
while protecting human rights.'' \120\
---------------------------------------------------------------------------
\120\ See The White House, Joint Statement by the President of
the United States Joe Biden and the President of Mexico
Andr[eacute]s Manuel L[oacute]pez Obrador (Apr. 29, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/29/joint-statement-by-the-president-of-the-united-states-joe-biden-and-the-president-of-mexico-andres-manuel-lopez-obrador.
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Since then, the United States and the Government of Mexico have
worked together, cooperatively, to increase enforcement.\121\ But these
efforts--while significant--are likely to be less effective over time.
Smuggling networks are adaptable, responding to changes put in place.
Despite their immediate effectiveness, such changes are not enough--and
will almost certainly have diminished effect over time. The reality is
that the scale of irregular migration over the past two years has
strained the funding, personnel, and infrastructure of both countries'
immigration enforcement systems in ways that have, at times,
contributed to high encounters between POEs.
---------------------------------------------------------------------------
\121\ See Valerie Gonzalez & Elliot Spagat, The US Sees a Drop
in Illegal Border Crossings After Mexico Increases Enforcement, AP
News (Jan. 7, 2024), https://apnews.com/article/mexico-immigration-enforcement-crossings-drop-b67022cf0853dca95a8e0799bb99b68a; Luke
Barr, US Customs And Border Protection Reopening 4 Ports of Entry
After Migrant Surge Subsides, ABC News (Jan. 2, 2024), https://abcnews.go.com/US/us-customs-border-protection-reopening-4-ports-entry/story?id=106062555; Seung Min Kim, US and Mexico Will Boost
Deportation Flights and Enforcement to Crack Down on Illegal
Immigration, AP News (Apr. 30, 2024), https://apnews.com/article/joe-biden-andres-manuel-lopez-obrador-mexico-immigration-border-c7e694f7f104ee0b87b80ee859fa2b9b; Julia Ainsley & Chloe Atkins,
Mexico Is Stopping Nearly Three Times as Many Migrants Now, Helping
Keep U.S. Border Crossings Down, NBC News (May 15, 2024), https://www.nbcnews.com/politics/immigration/mexico-stopping-three-times-as-many-migrants-as-last-year-rcna146821.
---------------------------------------------------------------------------
2. Need for These Measures
DHS projects that, absent the policy changes being promulgated
here, irregular migration will once again increase, and that any
disruption in Mexican enforcement will only exacerbate that trend.
Without the Proclamation and this rule, the anticipated increase in
migration will, in turn, worsen significant strains on resources
already experienced by the Departments and communities across the
United States.
Current trends and historical data indicate that migration and
displacement in the Western Hemisphere will continue to increase as a
result of violence, persecution, poverty, human rights abuses, the
impacts of climate change, and other factors. The case of migration
through the Dari[eacute]n jungle between Colombia and Panama is
illustrative. For example, between January and April, 2024, the United
Nations High Commissioner for Refugees (``UNHCR'') tracked 139,000
irregular entries, up from 128,000 for the same months in 2023 and a
seven-fold increase over migration levels during that period in
2022.\122\ The number of migrants crossing the Dari[eacute]n will only
further increase the pressure on Mexico at its southern border and on
the United States at the SWB.
---------------------------------------------------------------------------
\122\ The UNHCR tracked 20,000 irregular entries in the
Dari[eacute]n gap in 2022. OHSS analysis of downloaded from UNHCR
Operational Data Portal, Darien Panama: Mixed Movements Protection
Monitoring--January-December 2023, https://data.unhcr.org/en/documents/details/105569 (last visited May 31, 2024); Darien Panama:
Mixed Movements Protection Monitoring--April 2024, https://data.unhcr.org/en/documents/details/108399 (last visited May 31,
2024).
---------------------------------------------------------------------------
Past unprecedented migration surges bolster the Departments' views
and the need for this rulemaking. As described in detail in Section
III.B.1 of this preamble, migration trends have been steadily
increasing in scope and complexity, featuring increasingly varied
nationalities and demographic groups. This has been true even as DHS
has experienced sustained levels of historically high encounter levels.
Over the past two years, an increasing proportion of total CBP
encounters at the SWB has been composed of families and UCs, and DHS
has seen record flows of migrants from countries outside of northern
Central America.\123\ These
[[Page 48727]]
international migration trends are the result of exceedingly complex
factors and are shaped by, among other things, family and community
networks, labor markets, environmental and security-related push
factors, and rapidly evolving criminal smuggling networks.\124\ The
United States Government is working to address these root causes of
migration and to abate adverse effects from unprecedented levels of
irregular migration,\125\ including through working closely with
partner countries across the Western Hemisphere.\126\ But these efforts
will take time to have significant impacts and will not alleviate the
stress that the border security and immigration systems are currently
experiencing, as described in the Proclamation.
---------------------------------------------------------------------------
\123\ March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SWB Encounters by
Agency and Family Status'' and ``SWB Encounters by Citizenship and
Family Status'').
\124\ See 88 FR at 31327-28 & n.59.
\125\ See, e.g., The White House, Mexico and United States
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023),
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (committing to addressing root causes of migration).
\126\ See The White House, Fact Sheet: Third Ministerial Meeting
on the Los Angeles Declaration On Migration and Protection in
Guatemala (May 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala.
---------------------------------------------------------------------------
The Departments' views and the need for this rulemaking are further
supported by projections developed from ongoing work by DHS's Office of
Homeland Security Statistics (``OHSS''), which leads an interagency
working group that produces encounter projections used for operational
planning, policy development, and short-term budget planning. OHSS uses
a mixed-method approach that combines a statistical predictive model
with subject matter expertise intended to provide informed estimates of
future migration flow and trends. The mixed-methods approach blends
multiple types of models through an ensemble approach of model
averaging.\127\ The model includes encounter data disaggregated by
country and demographic characteristics, 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, which can include ``low'' planning models that are based on the
lower bound of the 95 percent forecast interval, ``moderate'' planning
models that are based on the upper bound of the 68 percent forecast
interval, and ``high'' planning models based on the upper bound of the
95 percent forecast interval. These planning models account for changes
in effectiveness of current enforcement and lawful migration
processes.\128\
---------------------------------------------------------------------------
\127\ 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
the [forecast] accuracy''); The Forecasting Collaborative, Insights
into the Accuracy of Social Scientists' Forecasts of Societal
Change, 7 Nat. Hum. Behaviour 484 (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). DHS notes that the
complexity of international migration limits DHS'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 in demographics of those noncitizens
encountered by DHS), 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. See 88
FR at 31316 n.14.
\128\ OHSS Southwest Border Encounter Projection, April 2024.
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Because of the significant time and operational cost it takes to
redeploy resources, DHS is generally conservative in its enforcement
planning. 88 FR at 31328. As a result, it focuses on its higher
planning models as it projects future resource deployments to avoid
using more optimistic scenarios that could leave enforcement efforts
badly under-resourced. Id. The current internal projections, based on
this robust modeling methodology, suggest that encounters may once
again reach extremely elevated levels in the weeks to come, averaging
in the three months from July to September, 2024, in the range of
approximately 3,900 to approximately 6,700 encounters at and between
POEs per day, not including an additional 1,450 noncitizens per day who
are expected to be encountered at POEs after making appointments though
the CBP One app.\129\ The Departments believe the policies in this rule
are justified in light of high levels of migration that have ultimately
proved persistent even in the face of new policies that have resulted
in processing migrants with record efficiency, as evidenced by the
migration patterns witnessed in December 2023. Current sustained, high
encounter rates exceed the border security and immigration systems'
capacity to effectively and safely process, detain, and remove, as
appropriate, all migrants who are encountered.\130\ This is generally
true when considering total encounters across the entire SWB, and even
more the case when specific sectors along the border are targeted by
smuggling organizations with focused localized surges in encounters--as
has been happening since the late fall in Tucson, Arizona, which
accounted for 35 percent of SWB encounters between POEs in the second
quarter of FY 2024, up from 18 percent in FY 2023 and 13 percent in FY
2022.\131\
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\129\ OHSS Encounter Projections, April 2024. Note that the OHSS
encounter projection excludes encounters of people who have
registered with the CBP One app along with administrative encounters
at POEs (i.e., encounters in which removal proceedings are not
considered), but includes non-CBP One enforcement encounters at
POEs, which have averaged about 190 per day since May 2023, based on
OHSS analysis of March 2024 OHSS Persist Dataset. See also CBP, CBP
OneTM Appointments Increased to 1,450 Per Day (June 30,
2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.
\130\ See, e.g., Decl. of Blas Nu[ntilde]ez-Neto ] 8, M.A. v.
Mayorkas, No. 23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
\131\ March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables--October
2023, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``SW
Border Encounters by Sector'').
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Despite the fact that the average of 4,400 daily encounters between
POEs in the second quarter of FY 2024 is below the highs experienced in
the days immediately preceding the end of the Title 42 public health
Order and in December 2023,\132\ daily encounter numbers remain
sufficiently high--especially in the locations where encounters have
been extremely elevated, such as California and Arizona--that the
numbers significantly impact the operational flexibility required to
process individuals in a timely and consequential manner.\133\
[[Page 48728]]
When capacity is strained like this in specific locations along the
border, it becomes even more difficult for the Departments to deliver
timely decisions and timely consequences. At increased levels of
encounters and without a change in policy, most non-Mexicans processed
for expedited removal under title 8 would likely establish a credible
fear and remain in the United States for the foreseeable future despite
the fact that most of them will not ultimately be granted asylum,
assuming results are similar to historic rates,\134\ a scenario that
would likely continue to incentivize an increasing number of migrants
to journey to the United States and further increase the likelihood of
sustained high encounter rates.
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\132\ March 2024 OHSS Persist Dataset. As noted supra note 5,
preliminary April data show SWB encounters between POEs fell
slightly, by 6 percent, between March and April. OHSS analysis of
data obtained from CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last
accessed May 24, 2024). The preliminary April data are best
understood to reflect a continuation of the general pattern
described elsewhere in this rule.
\133\ The Tucson Sector accounted for 35 percent of USBP
encounters in the second quarter of FY 2024, up from 18 percent in
FY 2023 and 13 percent in FY 2022. OHSS analysis of March 2024 OHSS
Persist Dataset; see also CBP, Southwest Land Border Encounters (By
Component), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters-by-component (last modified May 15, 2024). Border
encounters typically fall around the New Year and often remain lower
than other months in January. See OHSS, Immigration Enforcement and
Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last
updated May 10, 2024) (``Nationwide CBP Encounters by Encounter Type
and Region''). Thus, while CBP's apprehension of 402,000 noncitizens
between POEs in the second quarter of FY 2024 is slightly lower than
the 424,000 observed in FY 2023 and 518,000 in FY 2022, it is almost
four times as high as the pre-pandemic second-quarter average for FY
2014 through FY 2019, and with the exceptions of FY 2022 and FY 2023
the highest second-quarter count recorded since FY 2001. Even with
the downturn between January and March, 2024, the high volume of
encounters and challenging demographic mix still meant that most
noncitizens processed by USBP were released from custody into the
United States (including noncitizens enrolled in an ICE Alternatives
to Detention program and those paroled by the Office of Field
Operations). OHSS analysis of March 2024 OHSS Persist Dataset; see
also OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW
Border Encounters Book-Outs by Agency'').
\134\ Since May 12, 2023, 60 percent of non-Mexican noncitizen
SWB encounters (at and between POEs) processed for expedited removal
who have made fear claims have been referred to EOIR for immigration
proceedings. OHSS analysis of data downloaded from UIP on April 2,
2024. But based on historic (pre-pandemic) data, only 18 percent of
non-Mexican noncitizens processed for expedited removal that are
referred to EOIR result in an individual being granted relief or
protection from removal once the case is completed. OHSS Enforcement
Lifecycle December 31, 2023.
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Even in times with sustained lower encounter volumes, such as
between 2011 and 2017, the Departments experienced challenging
situations, including the first surge in UCs in 2014, that severely
strained the United States Government's capacity.\135\ Surges in
encounters at the southern border--both at and between POEs--are now
occurring more frequently and at higher magnitudes, and featuring more
diverse demographics and nationalities than ever before.\136\ These
surges affect more CBP sectors along the border, disrupt operations
more quickly, and affect readiness in other critical areas as DHS
diverts resources, including front-line agents, from other urgent tasks
and geographic areas.\137\ These actions, in turn, impact other
critical mission sets, including processing lawful trade and travel at
POEs.\138\
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\135\ OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW
Border Encounters by Agency and Family Status'').
\136\ OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW
Border Encounters by Agency and Family Status'' and ``CBP SW Border
Encounters by Agency and Selected Citizenship''); The Unaccompanied
Children Crisis: Does the Administration Have a Plan to Stop the
Border Surge and Adequately Monitor the Children?: Hearing Before
the S. Comm. On the Judiciary, 114th Cong. (2016) (statement of
Ronald Vitiello, Acting Chief of USBP), https://www.judiciary.senate.gov/imo/media/doc/02-23-16%20Vitiello%20Testimony.pdf; Memorandum on the Response to the
Influx of Unaccompanied Alien Children Across the Southwest Border,
1 Pub. Papers of Pres. Barack Obama 635, 635 (June 2, 2014).
\137\ See, e.g., Decl. of Raul L. Ortiz ]] 11-12, Florida v.
Mayorkas, No. 23-11644 (11th Cir. May 19, 2023) (Dkt. 3-2).
\138\ See, e.g., Decl. of Raul L. Ortiz ]] 11-12, Florida v.
Mayorkas, No. 23-11644 (11th Cir. May 19, 2023) (Dkt. 3-2); Decl. of
Blas Nu[ntilde]ez-Neto ] 32, E. Bay Sanctuary Covenant v. Biden, No.
18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 176-2).
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DHS continues to lack the necessary funding and resources to
deliver timely consequences to the majority of noncitizens encountered
given the increased level of encounters it is experiencing at the
SWB.\139\ On August 10, 2023, the Administration submitted to Congress
a request for $2.2 billion in supplemental funding for border
operations, including $1.4 billion for CBP and $714 million for ICE for
border management and enforcement and an additional $416 million for
counter-fentanyl efforts.\140\
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\139\ Letter for Kevin McCarthy, Speaker of the House of
Representatives, from Shalanda D. Young, Director, OMB, at 2-3 (Aug.
10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf; The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
\140\ See Letter for Kevin McCarthy, Speaker of the House of
Representatives, from Shalanda D. Young, Director, OMB, at 2-3,
attach. at 45-50 (Aug. 10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf.
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On October 20, 2023, the Administration submitted to Congress a
second request for supplemental funding for DHS, which would provide
funding to enhance enforcement and processing, procure and
operationalize needed technologies, and hire additional personnel.\141\
This funding would further support critical border enforcement efforts,
including:
---------------------------------------------------------------------------
\141\ See The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
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An additional 1,300 Border Patrol Agents to work alongside
the 20,200 agents proposed in the President's FY 2024 budget request,
as well as 300 Border Patrol Processing Coordinators and support staff;
\142\
---------------------------------------------------------------------------
\142\ See DHS, Fact Sheet: Biden-Harris Administration
Supplemental Funding Request (Oct. 20, 2023), https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request; The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
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An additional 1,600 AOs and associated support staff to
process migrant claims, which would provide USCIS with the critical
resources needed to expand its current credible fear interview capacity
to support timely processing of those placed in expedited removal;
\143\ and
---------------------------------------------------------------------------
\143\ See The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
---------------------------------------------------------------------------
An expansion of detention beds and ICE removal flight
funding to sustain the current significantly increased use of expedited
removal, provide necessary surge capacity, and allow DHS to process
more expeditiously noncitizens who cross the SWB unlawfully and swiftly
remove those without a legal basis to remain in the United States.\144\
---------------------------------------------------------------------------
\144\ See The White House, Fact Sheet: White House Calls on
Congress to Advance Critical National Security Priorities (Oct. 20,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/; DHS, Fact Sheet: Biden-
Harris Administration Supplemental Funding Request (Oct. 20, 2023),
https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request.
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On January 31, 2024, DHS published a new USCIS fee schedule,
effective April 1, 2024, that adjusted the fees to fully recover costs
and maintain adequate service. See U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 89 FR 6194, 6194 (Jan. 31, 2024); U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Correction, 89
FR 20101 (Mar. 21, 2024) (making corrections). Because there is
[[Page 48729]]
no fee required to file an asylum application or for protection
screenings, 8 CFR 106.2(a)(28), and because Congress has not provided
other funds to pay for the operating expenses of the Asylum
Division,\145\ fees generated from other immigration applications and
petitions must be used to pay for these expenses. See INA 286(m), 8
U.S.C. 1356(m). While the new fee rule does provide for increased
funding for the Refugee, Asylum, and International Operations
Directorate,\146\ keeping pace with USCIS's protection screening and
affirmative asylum workloads requires additional funding, as reflected
in the President's FY 2025 Budget.\147\ Raising fees on other
applications and petitions to cover the $755 million that would be
required to hire and support the additional 1,600 AOs called for in the
President's 2025 FY Budget \148\ would impose a burden on other filers.
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\145\ See DHS, U.S. Citizenship and Immigration Services, Budget
Overview, Fiscal Year 2025 Congressional Justification CIS--IEFA--22
(Mar. 8, 2024), https://www.dhs.gov/sites/default/files/2024-03/2024_0308_us_citizenship_and_immigration_services.pdf (showing AOs
are funded by Immigration Examinations Fee Account); id. at CIS--
O&S--30 (showing that appropriated funds from the Refugee, Asylum,
and International Operations Directorate of USCIS support Refugee
Officers).
\146\ DHS, Immigration Examinations Fee Account: Fee Review
Supporting Documentation with Addendum 53 (Nov. 2023), https://www.regulations.gov/document/USCIS-2021-0010-8176.
\147\ See The White House, Fact Sheet: The President's Budget
Secures Our Border, Combats Fentanyl Trafficking, and Calls on
Congress to Enact Critical Immigration Reform (Mar. 11, 2024),
https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/11/fact-sheet-the-presidents-budget-secures-our-border-combats-fentanyl-trafficking-and-calls-on-congress-to-enact-critical-immigration-reform/.
\148\ Id.
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In early February 2024, a bipartisan group of Senators proposed
reforms of the country's asylum laws that would have provided new
authorities to significantly streamline and speed up immigration
enforcement proceedings and immigration adjudications for individuals
encountered at the border, including those who are seeking protection,
while preserving principles of fairness and humane treatment.\149\
Critically, the proposal included nearly $20 billion in additional
resources for DHS, DOJ, and other departments to implement those new
authorities,\150\ including resources for:
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\149\ The White House, Fact Sheet: Biden-Harris Administration
Calls on Congress to Immediately Pass the Bipartisan National
Security Agreement (Feb. 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/.
\150\ Deirdre Walsh & Claudia Grisales, Negotiators release $118
billion border bill as GOP leaders call it dead in the House, NPR
(Feb. 4, 2024), https://www.npr.org/2024/02/04/1226427234/senate-border-deal-reached.
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Over 1,500 new CBP personnel, including Border Patrol
Agents and CBP Officers;
Over 4,300 new AOs, as well as USCIS staff to facilitate
timely and fair decisions;
100 additional IJ teams to help reduce the asylum caseload
backlog and adjudicate cases more quickly;
Shelter and critical services for newcomers in U.S. cities
and States; and
1,200 new ICE personnel for functions including
enforcement and removals.\151\
---------------------------------------------------------------------------
\151\ The White House, Fact Sheet: Biden-Harris Administration
Calls on Congress to Immediately Pass the Bipartisan National
Security Agreement (Feb. 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/.
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However, Congress failed to move forward with this bipartisan
legislative proposal.\152\ It also failed to pass the emergency
supplemental funding requests that the Administration submitted.
Although Congress did ultimately enact an FY 2024 appropriations bill
for DHS, the funding falls significantly short of what DHS requires to
deliver timely consequences and avoid large-scale releases pending
section 240 removal proceedings. For example, the bill does not provide
the resources necessary for DHS to refer the majority of noncitizens
encountered by USBP who are amenable to expedited removal into such
processing, resulting in large-scale releases pending section 240
removal proceedings based on current encounter numbers. Such releases,
in turn, have significant impacts on communities and contribute to
further migration by incentivizing potential migrants to travel to the
United States with the belief that, even if initially detained, they
will ultimately be released to live and work in the United States for
long periods of time. Absent the Proclamation and this rule, these
harmful results are especially likely given the circumstances described
in the Proclamation.
---------------------------------------------------------------------------
\152\ Associated Press, Border Bill Fails Senate Test Vote as
Democrats Seek to Underscore Republican Resistance (May 23, 2024),
https://apnews.com/article/border-immigration-senate-vote-924f48912eecf1dc544dc648d757c3fe.
---------------------------------------------------------------------------
The FY 2024 appropriations provided some additional funding for DHS
above its request, including for additional Border Patrol Agents and a
higher level of ICE detention beds than was previously
appropriated.\153\ Although this increase is helpful, there are a
number of ways in which the FY 2024 budget falls well short of what DHS
needs to respond to the current elevated levels of migration. For
example, the FY 2024 appropriations failed to fund the salary increase
set across the Federal Government by the Office of Management and
Budget (``OMB''), effectively reducing salary funding for the entirety
of the appropriations-funded DHS workforce.\154\ This reduction will
limit the availability of overtime to respond to surges in irregular
migration and may require difficult operational decisions during the
closing months of the fiscal year, which is historically a busier
period for such migration. The appropriations also did not provide
sufficient funding to maintain the temporary processing facilities
needed to hold migrants in custody. Further, the funds for hiring
additional personnel were restricted to the current fiscal year rather
than being provided as multi-year funds as requested; given the length
of the hiring process, DHS will not be able to realize the increases in
personnel envisioned by the legislation before the funding expires.
---------------------------------------------------------------------------
\153\ See House of Representatives, Explanatory Statement:
Division C, Department of Homeland Security Appropriations Act,
2024, at 14, 25 (Mar. 18, 2024), https://docs.house.gov/billsthisweek/20240318/Division%20C%20Homeland.pdf.
\154\ See id. at 14, 22 (explaining that for CBP, ``[t]he
agreement includes $346,498,000 below the request, including the
following: $182,772,000 for the 2024 pay raise,'' and for ICE,
``[t]he agreement provides $9,501,542,000 for Operations and
Support, including a decrease below the request of $74,153,000 for
the 2024 pay raise'').
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All of these factors, taken together, mean that under the current
appropriations law, DHS will, at best, be able only to sustain most of
its current operations, resulting in an operating capacity that already
experiences strain during times of high migration levels; this will, in
turn, reduce DHS's ability to maximize the delivery of timely
consequences for those without a lawful basis to remain. Additionally,
DHS will not be able to expand capacity along the border or increase
its ability to deliver consequences through referrals into expedited
removal. Instead, DHS may actually need to reduce capacity in some key
areas, including by closing critical temporary processing facilities
and pulling USBP agents away from the frontline to undertake processing
and tasks related to custody. Thus, while DHS has made significant
progress toward a migration strategy focused on enforcement,
deterrence, encouragement of the use of lawful pathways, and diplomacy,
a lack of needed resources and tools hampers DHS's current ability to
manage the unprecedented flow of hemispheric migration, and the
[[Page 48730]]
situation will only worsen with expected seasonal and other increases.
Immigration-related resource challenges are not unique to front-
line border officials. The immigration removal continuum--from
apprehension, processing, and inspection to protection interviews and
removal--is hampered by a lack of sufficient funding, resources, and
tools at every stage.\155\ EOIR is underfunded, without sufficient
resources to address the backlog of over 2.78 million cases that were
pending in the immigration courts at the end of the first quarter of FY
2024.\156\ This under-resourcing has contributed to the growth of this
backlog; in FY 2023, IJs completed more cases than they ever had before
in a single year, but more than twice as many cases were received by
the immigration courts as were completed.\157\ The FY 2024 budget
creates even greater strains on EOIR. EOIR received $844 million this
fiscal year,\158\ a cut of $16 million from FY 2023.\159\ EOIR's budget
was also cut $94.3 million from its inflation-adjusted funding
requirements (referred to as ``Current Services'').\160\ As a result of
the significant budgetary gap, EOIR will necessarily be required to
reduce the Federal and contract labor force that has been supporting
its immigration courts nationwide and cut spending to technological
initiatives. Specifically, EOIR has identified a need to cut 200 of its
authorized Federal positions and is identifying areas in which it can
make cuts to contracts, including those supporting the Office of
Information Technology, with the least amount of impact on operations.
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\155\ See DHS, Statement from Secretary Mayorkas on the
President's Fiscal Year 2025 Budget for the U.S. Department of
Homeland Security (Mar. 11, 2024), https://www.dhs.gov/news/2024/03/11/statement-secretary-mayorkas-presidents-fiscal-year-2025-budget-us-department (``DHS reiterates previously submitted funding
requests that are critical to secure the border, build immigration
enforcement capacity, combat fentanyl and address domestic needs
like natural disaster response, which Congress has failed to act on.
Among them, the October funding request, which includes $8.7 billion
for border, immigration, and counter fentanyl requirements and $9.2
billion for FEMA's Disaster Relief Fund and Nonprofit Security Grant
Program. Notably, the Administration's border supplemental request
includes funding to build capacity in the areas of border security,
immigration enforcement, and countering fentanyl. DHS strongly
supports the additional $19 billion in funding proposals included in
the Senate's bipartisan border legislation that would, among other
things, enable DHS to hire more CBP agents and officers, ICE
enforcement and investigative personnel, and USCIS asylum officers
and provide new tools to bolster the Department's efforts to secure
and manage the border.''); see also Letter for Kevin McCarthy,
Speaker of the House of Representatives, from Shalanda D. Young,
Director, OMB, at 2-3 (Aug. 10, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/08/Final-Supplemental-Funding-Request-Letter-and-Technical-Materials.pdf; The White House, Fact Sheet:
White House Calls on Congress to Advance Critical National Security
Priorities (Oct. 20, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/; DHS,
Fact Sheet: Biden-Harris Administration Supplemental Funding Request
(Oct. 20, 2023), https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request.
\156\ See EOIR, Adjudication Statistics: Pending Cases, New
Cases, and Total Completions (Jan. 18, 2024), https://www.justice.gov/eoir/workload-and-adjudication-statistics.
\157\ See EOIR, Adjudication Statistics: New Cases and Total
Completions (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2018/05/08/2_new_cases_and_total_completions.pdf; EOIR,
Adjudication Statistics: New Cases and Total Completions--Historical
1 (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2022/09/01/3_new_cases_and_total_completions_-_historical.pdf.
\158\ Consolidated Appropriations Act, 2024, Public Law 118-42,
138 Stat. 25, 133 (``[f]or expenses necessary for the administration
of immigration-related activities of the Executive Office for
Immigration Review, $844,000,000'').
\159\ Consolidated Appropriations Act, 2023, Public Law 117-328,
136 Stat. 4459, 4522 (2022) (``[f]or expenses necessary for the
administration of immigration-related activities of the Executive
Office for Immigration Review, $860,000,000''); EOIR, FY 2024 Budget
Request at a Glance, https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf (showing FY 2023
enacted budget providing EOIR $860 million).
\160\ EOIR, FY 2024 Budget Request at a Glance, https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf (providing the Current
Services Adjustment as an increase of $78.3 million, bringing the
inflation-adjusted amount to $938.3 million).
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Similarly, the USCIS backlog of affirmative asylum cases stands at
over 1.16 million and is growing.\161\ USCIS does not have enough AOs
to keep pace with the number of individuals who could be referred for
credible fear interviews at the border, much less keep pace with new
affirmative asylum receipts or even marginally reduce the affirmative
asylum backlog. In sum, the border security and immigration systems are
badly strained and not functioning to provide timely relief or
protection for those who warrant it or timely consequences for those
without a legal basis to remain, including those without viable asylum
or protection claims.
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\161\ OHSS analysis of USCIS Global Affirmative Data as of April
25, 2024 (noting that ``[d]ata is limited to filings between FY2000
and March 31, 2024'').
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The TCOs operating in the region, and the migrants they prey upon
who intend to make the dangerous journey north, have taken notice of
this situation. They understand that when the capacity of DHS to
quickly process individuals at the border is strained, DHS is limited
in its ability to deliver timely consequences. Because of these
resource limitations, individuals are more likely than not to be
released to pursue a years-long immigration court process during which,
beginning 180 days after applying for asylum, they may be authorized to
work.\162\ These smuggling organizations have built a multi-billion-
dollar industry, featuring online marketing campaigns to spread
misinformation and sophisticated logistics networks designed to quickly
funnel migrants to the parts of the border where DHS capacity is
lower.\163\
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\162\ See 8 CFR 208.7, 274a.12(c)(8). Sixty-seven percent of
individuals encountered by CBP at and between POEs at the SWB
between May 2023 and March 2024 were released, including 66 percent
of such individuals in the second quarter of FY 2024. These
individuals include noncitizens enrolled in an ICE Alternatives to
Detention program. March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border
Encounters Book-Out Outcomes by Agency'').
\163\ See, e.g., Priscilla Alvarez, Human smugglers peddle
misinformation to US-bound migrants on Facebook, watchdog says, CNN
(July 27, 2022), https://www.cnn.com/2022/07/27/politics/human-smuggling-misinformation/; Bernd Debusmann Jr, TikTok and
Title 42 rumours fuel human smuggling at the US border, BBC (July 8,
2023), https://www.bbc.com/news/world-us-canada-65848683.
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While the emergency measures instituted by the Proclamation are in
effect, the Departments will put in place extraordinary procedures to
more quickly process individuals encountered at the southern border,
reducing the time noncitizens spend in DHS facilities. The specific
measures introduced by this rule are designed to further streamline DHS
processes at the border so that DHS can more quickly deliver meaningful
consequences to more individuals who cross unlawfully or without
authorization within the resource and operational constraints that have
limited DHS capacity to date.
Under this rule, while emergency border circumstances persist, the
way noncitizens are processed, their eligibility for asylum, and the
way in which their eligibility for protection is assessed, will change
in three ways. First, during emergency border circumstances, those who
enter the United States across the southern border and who are not
described in section 3(b) of the Proclamation will be ineligible for
asylum unless they demonstrate by a preponderance of the evidence that
exceptionally compelling circumstances exist. As discussed in Section
III.B.3.a of this preamble, the Departments expect that applying the
limitation on asylum eligibility will encourage noncitizens to make an
appointment to present at the SWB, take advantage of other lawful
migration
[[Page 48731]]
pathways, or not undertake the dangerous journey north to begin with.
Second, this rule will reduce the time it takes to process
individuals placed in expedited removal at the border by changing the
way CBP immigration officers identify and refer noncitizens for
credible fear interviews. Under current title 8 procedures, noncitizens
encountered at the border and processed for expedited removal are
provided lengthy advisals regarding the credible fear and asylum
process and are asked questions to ascertain whether they may
potentially have a fear of persecution or torture.\164\ During
emergency border circumstances, DHS will move to a ``manifestation of
fear'' process at the border, detailed below in Section III.B.3.b of
this preamble, that will involve general (rather than individual)
advisals and require individuals who have a fear of persecution or
torture to manifest that fear, verbally, non-verbally, or physically,
in order for DHS personnel to refer them for a credible fear interview.
---------------------------------------------------------------------------
\164\ 8 CFR 235.3(b)(2).
---------------------------------------------------------------------------
Third, the limitation on asylum eligibility will be considered
during credible fear interviews and reviews, and those who are subject
to the limitation and are unable to establish a significant possibility
of showing exceptionally compelling circumstances will be screened for
eligibility for statutory withholding of removal and CAT protection
under a heightened ``reasonable probability of persecution or torture''
standard--a higher standard than the ``reasonable possibility''
standard under the Circumvention of Lawful Pathways rule.
As the Departments described more fully in the Circumvention of
Lawful Pathways rule, the current asylum system--in which a high number
of migrants are initially determined to be eligible to pursue their
claims, even though most ultimately are not granted asylum or
protection at the merits stage--has contributed to the growing backlog
of cases awaiting review by IJs.\165\ The practical result 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.\166\ As the demographics of border encounters have shifted
in recent years to include Mexicans claiming fear at a higher rate, and
large numbers of non-Mexicans--who have historically been far more
likely to assert fear 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.\167\
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\165\ 88 FR at 31315.
\166\ See supra note 25.
\167\ According to OHSS Persist data, Mexican nationals
continued to account for 89 percent of total CBP SWB encounters in
FY 2010, with northern Central Americans accounting for 8 percent
and all other nationalities accounting for 3 percent. March 2024
OHSS Persist Dataset. Northern Central Americans' share of total CBP
SWB encounters increased to 21 percent by FY 2012 and averaged 48
percent from FY 2014 to FY 2019, the last full year before the start
of the COVID-19 pandemic. Id. Nationals from all other countries
except Mexico and the northern Central American countries accounted
for an average of 5 percent of total CBP SWB encounters from FY 2010
to FY 2013, and for 10 percent of total encounters from FY 2014 to
FY 2019. Id. This transition has accelerated since the start of FY
2021, as Mexican nationals accounted for approximately 32 percent of
total CBP SWB encounters in FY 2021 through March 2024, including
roughly 29 percent in the first six months of FY 2024; northern
Central Americans accounted for roughly 25 percent from FY 2021
through March 2024 (20 percent in FY 2024 through March 2024); and
all other countries accounted for roughly 42 percent from FY 2021
through March 2024, including roughly 51 percent of FY 2024
encounters through March 2024. Id.
For noncitizens encountered at and between SWB POEs from FY 2014
through FY 2019 who were placed in expedited removal, nearly 6
percent of Mexican nationals made fear claims that were referred to
USCIS for determination. OHSS analysis of Enforcement Lifecycle data
as of December 31, 2023. In contrast, as discussed in Section
III.B.3.a.iv of this preamble, from May 12, 2023 to March 31, 2024,
29 percent of all Mexican nationals processed for expedited removal
at the SWB made fear claims, including 39 percent in February 2024.
OHSS analysis of UIP ER Daily Report Data Dashboard as of April 2,
2024.
For noncitizens encountered at and between SWB POEs from FY 2014
through FY 2019, nearly 57 percent of people from northern Central
America (i.e., El Salvador, Guatemala, and Honduras), and close to
90 percent of all other nationalities made fear claims that were
referred to USCIS for determination. OHSS analysis of Enforcement
Lifecycle data as of December 31, 2023. Of note, according to OHSS
analysis of historic EOIR and CBP data, there is a clear correlation
since FY 2000 between the increasing time it takes to complete
immigration proceedings, which results in a lower share of
noncitizens being removed, and the growth in non-Mexican encounters
at and between SWB POEs. Both trends accelerated in the 2010s, as
non-Mexicans became the majority of such encounters, and they have
accelerated further since FY 2020, as people from countries other
than Mexico and northern Central America now account for the largest
numbers of such encounters. OHSS analysis of March 2024 OHSS Persist
Dataset.
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The provisions in this rule are intended to be emergency measures
that impact the expedited removal process and eligibility for relief or
protection only for those who enter the United States across the
southern border during emergency border circumstances. Unfortunately,
the significant efforts the Departments have made to address such
circumstances to date have not been as effective as they could have
been had Congress provided the personnel, infrastructure, technology,
and broader reforms that the Departments have requested. Communities
all over the United States are being adversely impacted as a result.
The goal of these measures is to quickly reduce unlawful and
unauthorized entries at the border and to quickly impose decisions and
consequences on those who cross our border unlawfully and lack a legal
basis to remain.
3. Description of the Rule and Explanation of Regulatory Changes
This rule amends the Departments' regulations to further the
purpose of the Presidential Proclamation of June 3, 2024, which
suspends and limits entry along the southern border to address the
emergency border circumstances outlined in that Proclamation. The rule
does so by amending 8 CFR 208.13 and 1208.13 and adding regulatory
provisions at 8 CFR 208.35, 235.15, and 1208.35 that (1) limit asylum
eligibility for those who enter the United States across the southern
border during emergency border circumstances described in the
Proclamation and this rule, are not described in section 3(b) of the
Proclamation, and do not establish the existence of exceptionally
compelling circumstances; (2) alter the process for advising
noncitizens of their rights to seek asylum and for identifying which
noncitizens to refer to an AO for credible fear screening during
emergency border circumstances; and (3) alter the standard for
screening for statutory withholding of removal and CAT protection while
such circumstances exist.\168\ Below is an explanation of the
limitation and each change to the expedited removal and fear screening
process. The specific content of each provision and amendment is set
forth in detail in Section III.C of this preamble.
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\168\ The Departments understand that the President has directed
the agencies to promptly consider issuing ``any instructions,
orders, or regulations as may be necessary to address the
circumstances at the southern border.'' Such actions may include
other measures that are not addressed in this rule, and the
Departments have considered and are continuing to consider such
other actions. The Departments believe that the changes made in this
rule are the most appropriate means to begin addressing the concerns
identified in the Proclamation, and the Departments will assess the
effectiveness of this rule as they continue to consider other
actions to respond to the President's direction.
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a. Limitation on Asylum Eligibility
As discussed above in Sections III.B.1 and 2 of this preamble,
irregular migration is continuing to strain the Departments' ability to
timely process, detain, and remove, as appropriate, and
[[Page 48732]]
thus to swiftly deliver timely decisions and timely consequences to
noncitizens at the southern border. This challenge is exacerbated by
the sheer number of migrants who invoke credible fear procedures at a
POE or when they are encountered between POEs without following the
lawful, safe, and orderly processes that DHS has made available. The
Departments have implemented the Circumvention of Lawful Pathways rule
and complementary measures, but Congress has not provided the resources
necessary to timely and effectively process and interview all those who
invoke credible fear procedures through the expedited removal process
at the southern border, particularly during times in which the
country's border faces an emergency of the magnitude described in the
Proclamation. The record numbers of migrants invoking the credible fear
procedures at the southern border exacerbate the risk of severe
overcrowding in USBP facilities and POEs, and it creates a situation in
which large numbers of migrants--only a small proportion of whom are
likely to be granted asylum--are not able to be expeditiously removed
but are instead referred to backlogged immigration courts. This
situation is self-reinforcing: the expectation of a lengthy stay in the
United States and the lack of timely consequences for irregular
migration encourage more migrants without potentially meritorious
claims for asylum to make the dangerous journey to the southern border
to invoke credible fear procedures at the southern border and take
their chances on being allowed to remain in the country for a lengthy
period.
For these reasons, pursuant to section 208(b)(1)(A), (b)(2)(C),
(d)(5)(B) of the INA, 8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B), the
Departments are adopting a limitation on asylum eligibility for
noncitizens who (1) enter the United States across the southern border
during emergency border circumstances; (2) are not described in section
3(b) of the Proclamation; and (3) do not establish exceptionally
compelling circumstances. See 8 CFR 208.13(g), 208.35(a), 1208.13(g),
1208.35(a). Section 3(b) of the Proclamation lists classes of
individuals to whom the Proclamation's suspension and limitation on
entry and this limitation on asylum eligibility does not apply; those
classes are discussed in Section II.A of this preamble. The
exceptionally compelling circumstances exception to this rule's
limitation on asylum eligibility is discussed below in Sections
III.B.3.a and III.C.2 of this preamble.
The limitation on asylum eligibility is needed to address the
emergency border circumstances outlined in the Proclamation and this
rule and responds to the President's direction to the Secretary of
Homeland Security and the Attorney General to promptly consider issuing
such instructions, orders, or regulations as may be necessary to
address the circumstances at the southern border, including any
additional limitations and conditions on asylum eligibility that they
determine are warranted, subject to any exceptions that they determine
are warranted. Under the circumstances described in the Proclamation,
the Departments assess that the limitation on asylum is necessary to
help streamline the Departments' processing of noncitizens, thereby
conserving limited resources during the emergency border circumstances
described in the Proclamation and this rule and allowing for enough
resources to continue to process lawful cross-border trade and travel
and noncitizens who present in a safe and orderly manner at a POE.\169\
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\169\ When it comes to determining the applicability of the
Proclamation, CBP immigration officers, who first encounter
noncitizens when they enter or attempt to enter, must determine
whether a noncitizen is subject to the Proclamation under section
3(a), including whether the noncitizen is excluded from the
suspension and limitation on entry under section 3(b). See 8 CFR
208.35(a), 1208.35(a). The Departments anticipate that, when
determining whether the limitation on asylum eligibility applies,
AOs and IJs will rarely have grounds to reach a different result
from the CBP immigration officers. See 8 CFR 208.35(b), 1208.35(b).
In part, the Proclamation's application turns on straightforward
questions of status--e.g., whether someone was a noncitizen,
Proclamation sec. 3(a)(i); was a noncitizen national, id. sec.
3(b)(i); was a lawful permanent resident, id. sec. 3(b)(ii); was a
UC, id. sec. 3(b)(iii); or had a valid visa or other lawful
permission to seek entry or admission into the United States or
presented at a POE pursuant to a pre-scheduled time and place, id.
sec. 3(b)(v). The Proclamation's application also turns on questions
of historical fact, including whether the suspension and limitation
on entry was in place at the relevant time, id. sec. 3(a), and
whether someone was ``permitted to enter by . . . a CBP immigration
officer'' based on two sets of specified considerations ``at the
time of the entry or encounter that warranted permitting the
noncitizen to enter,'' id. Sec. 3(b)(vi)-(vii). These two exceptions
allow CBP immigration officers to permit the entry of noncitizens
who present at the encounter with--for example--medical issues
requiring immediate attention. See id. sec. 3(b)(vi).
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The Departments have further made the determination to apply the
limitation on asylum eligibility to those who enter the United States
across the southern border during emergency border circumstances
irrespective of whether the noncitizen is encountered during such
emergency border circumstances. This will permit a consistent
application of the rule to all those who enter across the southern
border during such circumstances and are subject to this limitation on
asylum eligibility, including those who evade detection at the southern
border and are later placed in section 240 removal proceedings, as well
as those who affirmatively apply for asylum. The Departments have
considered applying the rule's asylum limitation only to those who
enter and are encountered at the southern border during emergency
border circumstances. The Departments believe, however, that the rule's
asylum limitation should avoid creating an incentive for noncitizens to
take risky measures to evade detection, which would further strain
resources dedicated to apprehension at the border.\170\
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\170\ The Departments note that adjudicators already make
determinations regarding the noncitizen's date of arrival when
determining whether the noncitizen is barred from filing an asylum
application (unless meeting an exception) within one year of
arrival. See INA 208(a)(2)(B) and (D), 8 U.S.C. 1158(a)(2)(B) and
(D).
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Additionally, the approach adopted in this rule is consistent with
the Circumvention of Lawful Pathways rule, which, with narrow
exceptions, applies to all those who enter during the two-year period
currently specified in that rule, regardless of whether they are
apprehended at or near the border during the 14-day period immediately
after entry or within 100 miles of the border. See 8 CFR 208.33(c),
1208.33(d). Moreover, the Departments note that the provisions of
Sec. Sec. 208.35(b) and 235.15 would be applicable only to those who
have entered the United States during the emergency border
circumstances described in the Proclamation and this rule and are
processed for expedited removal. Thus, those provisions would not apply
to those who have long since entered the United States. Accordingly,
the Departments have determined that it is reasonable to apply this
rule's limitation on asylum eligibility consistent with the
Circumvention of Lawful Pathways rule, without regard to the date of
encounter or commencement of proceedings.
Even if a noncitizen entered the United States across the southern
border during emergency border circumstances and is not described in
section 3(b) of the Proclamation, they may avoid application of the
limitation on asylum eligibility if they establish by a preponderance
of the evidence that exceptionally compelling circumstances exist.\171\
Such circumstances necessarily
[[Page 48733]]
exist where the noncitizen demonstrates that, at the time of entry, the
noncitizen or a member of the noncitizen's family as described in 8 CFR
208.30(c) with whom the noncitizen was traveling faced an acute medical
emergency; faced an imminent and extreme threat to their life or
safety; or was a ``victim of a severe form of trafficking in persons''
as defined in 8 CFR 214.11.\172\ 8 CFR 208.35(a)(2)(i),
1208.35(a)(2)(i). Acute medical emergencies would include, but would
not be limited to, situations in which someone faces a life-threatening
medical emergency or faces acute and grave medical needs that cannot be
adequately addressed outside of the United States. Examples of imminent
and extreme threats would include imminent threats of rape, kidnapping,
torture, or murder that the noncitizen faced at the time the noncitizen
crossed the southern border, such that they cannot wait for an
appointment at a pre-scheduled time and place or until this IFR's
limitation on asylum eligibility is not in effect for an opportunity to
present at a POE without putting their life or well-being at extreme
risk; it would not include generalized threats of violence.
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\171\ The Departments decline to adopt an exception mirroring
the exception from the Circumvention of Lawful Pathways rule for
those who present at a POE without a pre-scheduled time and place
but show 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. See 8 CFR
208.33(a)(2)(ii)(B), 1208.33(a)(2)(ii)(B). This rule, unlike the
Circumvention of Lawful Pathways rule, applies only in the emergency
circumstances described in the Proclamation and the rule, where
encounters strain the border security and immigration systems'
capacity. And although the Circumvention of Lawful Pathways rule was
also aimed at reducing irregular migration, it was focused on
encouraging the use of lawful pathways, rather than the number of
daily entrants. In these emergency border circumstances, this rule's
exception for ``exceptionally compelling circumstances'' captures
individuals with a time-sensitive imperative; such individuals may
also be permitted to enter under one of the exceptions in section
3(b) of the Proclamation. And in these emergency border
circumstances, the Departments have determined that individuals who
do not qualify for this exception should wait for a CBP One
appointment. Moreover, under the Circumvention of Lawful Pathways
rule, this exception requires additional questioning of any
noncitizen who entered at a POE and is subject to the rule--time
that, in the aggregate, could diminish the Departments' ability to
deploy resources to address the emergency circumstances that support
application of this rule.
In addition, the Departments did not include an exception for a
noncitizen who sought asylum or other protection in a country
through which the noncitizen traveled and received a final decision
denying that application. See 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). This rule serves a different purpose than 8
CFR 208.33(a)(2)(ii)(C) and 1208.33(a)(2)(ii)(C); specifically, this
rule is aimed at deterring irregular migration and speeding up the
border process during a period of high encounters, rather than
encouraging noncitizens to seek protection in other countries.
During the emergency border circumstances described in the
Proclamation and this rule, narrowing the exceptions to those who
are unable to wait for an appointment is key. Those who sought and
were denied protection in another country will still be eligible for
asylum if they enter pursuant to an appointment, meet another
exception to the Proclamation, or establish exceptionally compelling
circumstances, such as that at the time of entry they faced an acute
medical emergency or an imminent and extreme threat to life or
safety.
\172\ The Departments note that noncitizens who are a ``victim
of a severe form of trafficking in persons'' are already excepted
from the Proclamation's suspension and limitation on entry as
provided in section 3(b) of the Proclamation and are therefore also
not subject to the rule's limitation on asylum eligibility.
Nonetheless, the Departments have opted to retain ``victims of
severe form of trafficking in persons'' as an exceptional
circumstance to avoid any confusion and to ensure that the
exceptions in this rule mirror the rebuttal circumstances the
Departments adopted in the Circumvention of Lawful Pathways rule.
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The ``exceptionally compelling circumstances'' exception mirrors
the rebuttal circumstance the Departments adopted in the Circumvention
of Lawful Pathways rule. See 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i).
That exception is adopted here for the reasons articulated for adopting
it in the Circumvention of Lawful Pathways NPRM and rule and the
exception is intended to apply to the same circumstances identified in
that NPRM and rule. See, e.g., 88 FR at 11723; 88 FR at 31318, 31338,
31348, 31351, 31380, 31390, 31391-93.
Like the Circumvention of Lawful Pathways rule, this rule
recognizes an additional exception that avoids the separation of
families. See 8 CFR 208.35(c), 1208.35(c). Those noncitizens who are
subject to the limitation on asylum eligibility and who do not
establish exceptionally compelling circumstances under 8 CFR
208.35(a)(2)(i) or 1208.35(a)(2)(i) would be able to continue to apply
for statutory withholding of removal and protection under the CAT,
forms of protection to which the limitation does not apply if placed in
section 240 removal proceedings. Unlike asylum, spouses and minor
children are not eligible for derivative grants of statutory
withholding of removal or CAT protection. Compare INA 208(b)(3)(A), 8
U.S.C. 1158(b)(3)(A) (``[a] spouse or child . . . of an alien who is
granted asylum under this subsection may, if not otherwise eligible for
asylum under this section, be granted the same status as the alien if
accompanying, or following to join, such alien''), with INA 241(b)(3),
8 U.S.C. 1231(b)(3) (not providing for derivative statutory withholding
of removal), and 8 CFR 1208.16(c) (not providing for derivative CAT
protection); see also Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir.
2013) (recognizing that the asylum statute allows for derivative
beneficiaries of the principal applicant for asylum, but that the
withholding of removal statute makes no such allowance). Again,
mirroring EOIR's family unity provision in the Circumvention of Lawful
Pathways rule, see 8 CFR 1208.33(c), where a principal asylum applicant
is eligible for statutory withholding of removal or CAT protection and
would be granted asylum but for the limitation on eligibility
established in this rule, and where an accompanying spouse or child as
defined in section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A),
does not independently qualify for asylum or other protection from
removal or the principal asylum applicant has a spouse or child who
would be eligible to follow to join that applicant as described in
section 208(b)(3)(A) of the INA, 8 U.S.C. 1158(b)(3)(A), the noncitizen
shall be excepted from the limitation on eligibility by the IJ if
placed in section 240 removal proceedings. 8 CFR 1208.35(c). The
Departments have determined that the possibility of separating the
family should be avoided. See E.O. 14011, Establishment of Interagency
Task Force on the Reunification of Families, 86 FR 8273, 8273 (Feb. 2,
2021) (``It is the policy of my Administration to respect and value the
integrity of families seeking to enter the United States.'').
In the Circumvention of Lawful Pathways rule, the Departments
included a family unity provision in EOIR's regulations but not DHS's.
The Departments did so because they decided at that time that those who
an AO concludes are subject to the Lawful Pathways presumption and who
are not able to establish an exception or rebut the presumption during
a credible fear screening may not be placed into the asylum merits
interview process and may instead only be issued an NTA and placed into
section 240 removal proceedings. See 88 FR at 11725-26; 88 FR at 31336-
37. For purposes of this rule, the Departments have allowed for an
asylum merits interview process at the discretion of USCIS that
includes USCIS discretion to apply a parallel family unity provision.
See 8 CFR 208.35(c). This provision is discretionary to allow USCIS
flexibility as it implements the new process. The Departments request
comment on whether to adopt a non-discretionary family unity provision
for the asylum merits interview process in a final rule.
i. Authority To Impose Additional Limitations on Asylum Eligibility
The Secretary and the Attorney General have authority to adopt this
additional limitation on asylum eligibility. Both have long exercised
discretion, now expressly authorized by Congress, to create new rules
governing the granting of asylum. When section
[[Page 48734]]
208 of the INA was first enacted as part of the Refugee Act of 1980, it
simply provided that the Attorney General ``shall establish a
procedure'' for a noncitizen ``to apply for asylum,'' and that the
noncitizen ``may be granted asylum in the discretion of the Attorney
General if the Attorney General determines that such [noncitizen] is a
refugee within the meaning of section 1101(a)(42)(A).'' 8 U.S.C.
1158(a) (1982). In 1980, the Attorney General, in the exercise of that
broad statutory discretion, established several mandatory bars to the
granting of asylum. See 8 CFR 208.8(f)(1) (1980); Aliens and
Nationality; Refugee and Asylum Procedures, 45 FR 37392, 37392 (June 2,
1980). In 1990, the Attorney General substantially amended the asylum
regulations, but exercised his discretion to retain the mandatory bars
to asylum eligibility related to persecution of others on account of a
protected ground, conviction of a particularly serious crime in the
United States, firm resettlement in another country, and the existence
of reasonable grounds to regard the noncitizen as a danger to the
security of the United States. See Aliens and Nationality; Asylum and
Withholding of Deportation Procedures, 55 FR 30674, 30678, 30683 (July
27, 1990); see also Yang v. INS, 79 F.3d 932, 936-39 (9th Cir. 1996)
(upholding firm-resettlement bar); Komarenko v. INS, 35 F.3d 432, 436
(9th Cir. 1994) (upholding particularly-serious-crime bar), abrogated
on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en
banc).
In that 1990 rule, the Attorney General also codified another
limitation that was first discussed in Matter of Chen, 20 I&N Dec. 16
(BIA 1989). 55 FR at 30678. Specifically, although the statute defines
a ``refugee'' and thus allows asylum for a noncitizen based on a
showing of past ``persecution or a well-founded fear of persecution,''
INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A), by regulation, a showing of
past persecution only gives rise to a presumption of a well-founded
fear of future persecution, which can be rebutted by showing that
circumstances have changed such that the noncitizen no longer has a
well-founded fear of future persecution or that the noncitizen can
relocate to avoid persecution and under all the circumstances it is
reasonable to expect the noncitizen to do so.\173\ 8 CFR 208.13(b)(1),
1208.13(b)(1). Where the presumption is rebutted, the adjudicator, ``in
the exercise of his or her discretion, shall deny the asylum
application.'' \174\ 8 CFR 208.13(b)(1)(i), 1208.13(b)(1)(i). In 1990,
Congress added a mandatory statutory bar for those with aggravated
felony convictions. Immigration Act of 1990, Public Law 101-649, sec.
515, 104 Stat. 4978, 5053.
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\173\ As noted below, the internal relocation provision was
added in 2000 by Asylum Procedures, 65 FR 76121, 76126 (Dec. 6,
2000).
\174\ There is a narrow exception to this mandatory
discretionary ground for denial, called ``humanitarian asylum,''
where the noncitizen establishes ``compelling reasons for being
unwilling or unable to return to the [noncitizen's] country arising
out of the severity of . . . past persecution'' or ``that there is a
reasonable possibility that [the non-citizen] may suffer other
serious harm upon removal to [the noncitizen's] country.'' 8 CFR
208.13(b)(1)(iii), 1208.13(b)(1)(iii).
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With the passage of IIRIRA, Congress added three categorical
statutory bars to the ability to apply for asylum for (1) noncitizens
who can be removed, pursuant to a bilateral or multilateral agreement,
to a third country where they would not be persecuted on account of a
specified ground; (2) noncitizens who failed to apply for asylum within
one year of arriving in the United States; and (3) noncitizens who have
previously applied for asylum and had the application denied. Public
Law 104-208, div. C, sec. 604, 110 Stat. 3009, 3009-690 to -691.
Congress also adopted six mandatory bars to asylum eligibility that
largely reflected the pre-existing, discretionary bars that had been
set forth in the Attorney General's asylum regulations. These bars
cover (1) noncitizens who ``ordered, incited, assisted, or otherwise
participated'' in the persecution of others; (2) noncitizens who,
having been convicted of a ``particularly serious crime,'' constitute a
danger to the United States; (3) noncitizens for whom there are serious
reasons to believe committed a ``serious nonpolitical crime outside the
United States'' before arriving in the United States; (4) noncitizens
for whom there are reasonable grounds to regard as a ``danger to the
security of the United States''; (5) noncitizens who are removable
under a set of specified grounds relating to terrorist activity; and
(6) noncitizens who were ``firmly resettled'' in another country prior
to arriving in the United States. Id. at 3009-691 (codified at INA
208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A)). Congress further added that
aggravated felonies, defined in section 101(a)(43) of the INA, 8 U.S.C.
1101(a)(43), would be considered ``particularly serious crime[s].'' Id.
at 3009-692 (codified at INA 208(b)(2)(B)(i), 8 U.S.C.
1158(b)(2)(B)(i)).
In IIRIRA, Congress also made clear that the Executive Branch may
continue to exercise its broad discretion in determining whether to
grant asylum by creating additional limitations and conditions on the
granting of asylum. The INA 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.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C);
see 6 U.S.C. 552(d); INA 103(a)(1), 8 U.S.C. 1103(a)(1). In addition,
while section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), establishes
certain procedures for consideration of asylum applications, Congress
specified 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,'' INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). In sum, the current statutory
framework retains the broad discretion of the Attorney General (and,
after the HSA, also the Secretary) to adopt additional limitations on
the granting of asylum and procedures for implementing those
limitations.
Previous Attorneys General and Secretaries have since invoked their
authorities under section 208 of the INA, 8 U.S.C. 1158, to establish
eligibility bars beyond those required by the statute itself. See,
e.g., Asylum Procedures, 65 FR 76121, 76126 (Dec. 6, 2000) (requiring
consideration of the applicant's ability to relocate safely in his or
her home country in assessing asylum eligibility); Aliens Subject to a
Bar on Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 FR 55934 (Nov. 9, 2018) (``Proclamation Bar
IFR'') (limit on eligibility for applicants subject to certain
presidential proclamations); \175\ Asylum Eligibility and Procedural
Modifications, 85 FR 82260 (Dec. 17, 2020) (``TCT Bar final rule'')
(limit on eligibility for certain noncitizens who failed to apply for
protection while in a third country through which they transited en
route to the United States); \176\ Procedures for Asylum and Bars to
Asylum Eligibility, 85 FR 67202 (Oct. 21, 2020) (limits on eligibility
for noncitizens convicted of certain criminal offenses); \177\
Inspection and Expedited Removal of Aliens; Detention and Removal of
Aliens; Conduct of
[[Page 48735]]
Removal Proceedings; Asylum Procedures, 62 FR 10312, 10342 (Mar. 6,
1997) (IFR codifying mandatory bars and adding provision allowing for
discretionary denials of asylum where ``the alien can be removed to a
third country which has offered resettlement and in which the alien
would not face harm or persecution''); see also Yang, 79 F.3d at 936-39
(upholding firm-resettlement bar); Komarenko, 35 F.3d at 436 (upholding
particularly-serious-crime bar). Consistent with this historical
practice, the Secretary and Attorney General exercised this authority
when adopting the Lawful Pathways presumption of asylum ineligibility.
See Circumvention of Lawful Pathways rule, 88 FR 31314.\178\
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\175\ See O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019)
(vacating Proclamation Bar IFR).
\176\ See E. Bay Sanctuary Covenant v. Barr, 519 F. Supp. 3d 663
(N.D. Cal. 2021) (preliminarily enjoining the TCT Bar final rule).
\177\ See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec.,
501 F. Supp. 3d 792, 827 (N.D. Cal. 2020) (granting temporary
restraining order against operation of the rule and ordering
defendants to show cause why the rule should not be preliminarily
enjoined).
\178\ The Circumvention of Lawful Pathways rule was vacated by
East Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025 (N.D.
Cal. 2023). But the Ninth Circuit has stayed that vacatur pending
appeal, see E. Bay Sanctuary Covenant v. Biden, No. 23-16032 (9th
Cir. Aug. 3, 2023), and thus the rule and its presumption remain in
effect. On February 21, 2024, the Ninth Circuit placed the case in
abeyance pending settlement discussions. E. Bay Sanctuary Covenant
v. Biden, 93 F.4th 1130 (9th Cir. 2024).
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ii. Litigation Over the Proclamation Bar IFR
This rule places a limitation on asylum eligibility for those
noncitizens who are described in the Proclamation subject to certain
exceptions. The Departments acknowledge prior judicial decisions
addressing a different limit on asylum eligibility adopted pursuant to
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), relating to
suspensions and limitations on entry by presidential proclamation under
section 212(f) of the INA, 8 U.S.C. 1182(f). In East Bay Sanctuary
Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021) (``East Bay III''), the
Ninth Circuit affirmed a preliminary injunction against the
Proclamation Bar IFR, which categorically rendered certain noncitizens
ineligible for asylum if they entered the United States in violation of
a presidential proclamation or other presidential order suspending or
limiting the entry of noncitizens along the southern border. The
relevant presidential proclamation in that case suspended entry of all
migrants along the southern border except those who entered at a POE.
See id. at 659. The court held that the Proclamation Bar IFR was
inconsistent with section 208(a) of the INA, 8 U.S.C. 1158(a), which
provides that any migrant ``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.'' Id. at 670.\179\
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\179\ The court also held that the Proclamation Bar IFR likely
did not properly fall under the good cause or foreign affairs
exceptions to notice-and-comment rulemaking under 5 U.S.C. 553(a)(1)
and (b)(B). See East Bay III, 993 F.3d at 676-77.
---------------------------------------------------------------------------
The Departments regard this rule as substantially different than
the rule the Ninth Circuit deemed invalid in East Bay III. The
Proclamation and limitation on asylum eligibility at issue here differ
significantly from the prior categorical bar on ``manner of entry''
because they do not treat the manner of entry as dispositive in
determining eligibility. Rather, the limitation at issue here turns on
whether--during emergency border circumstances described in the
Proclamation and this rule--an individual has followed the lawful,
safe, and orderly pathways that the United States Government has
established during these emergency situations when it is essential that
noncitizens use such pathways to ensure the United States Government's
ability to manage the border. And even during these situations, AOs and
IJs have the ability to except noncitizens from the rule's asylum
limitation where the noncitizens establish that an exceptionally
compelling circumstance exists. See 8 CFR 208.35(a)(2)(i),
1208.35(a)(2)(i). For example, a noncitizen may be excepted from the
limitation on asylum eligibility if they experienced an acute medical
emergency at the time of entry regardless of where that entry occurred.
Other exceptionally compelling circumstances include, but are not
limited to, if the noncitizen demonstrates that, at the time of entry,
the noncitizen or a member of their family as described in 8 CFR
208.30(c) with whom the noncitizen was traveling faced an imminent and
extreme threat to their life or safety or was a ``victim of a severe
form of trafficking in persons'' as defined in 8 CFR 214.11. 8 CFR
208.35(a)(2)(i)(B)-(C), 1208.33(a)(2)(i)(B)-(C). Indeed, the rule's
exceptionally compelling circumstances exception is identical to the
grounds that would rebut the presumption of asylum ineligibility under
the Circumvention of Lawful Pathways rule, which has been allowed to
continue in effect despite litigation challenging its validity. See E.
Bay Sanctuary Covenant v. Biden, No. 23-16032, 2023 WL 11662094, at *1
(9th Cir. Aug. 3, 2023) (staying order vacating Circumvention of Lawful
Pathways rule pending appeal). Furthermore, this rule does not
implicate the same concerns as the prior categorical bar based on
``manner of entry'' because it applies only to individuals who enter
during emergency border circumstances and would not treat solely the
manner of entry as dispositive in determining eligibility even during
such circumstances, given that the rule applies both at and between
POEs and in light of the exceptions available under section 3(b) of the
Proclamation and for exceptionally compelling circumstances under 8 CFR
208.35(a)(2) and 1208.35(a)(2).
Moreover, the Departments disagree with important aspects of the
reasoning that the district court and Ninth Circuit relied upon in East
Bay III. The Departments argued in East Bay III that section 208(a)(1)
of the INA, 8 U.S.C. 1158(a)(1), by its plain terms requires only that
a noncitizen be permitted to ``apply'' for asylum, regardless of their
manner of entry. It does not require that a noncitizen be eligible to
be granted asylum, regardless of their manner of entry. Indeed, the BIA
has long taken account of a noncitizen's manner of entry in determining
whether to grant asylum. See Matter of Pula, 19 I&N Dec. 467, 473 (BIA
1987) (holding that ``manner of entry . . . is a proper and relevant
discretionary factor to consider in adjudicating asylum
applications''). The court in East Bay III rejected this argument,
stating that ``[e]xplicitly authorizing a refugee to file an asylum
application because he arrived between ports of entry and then
summarily denying the application for the same reason borders on
absurdity,'' 993 F.3d at 670 (emphasis omitted), but the statute draws
a clear distinction between the two. Section 208(a) of the INA, 8
U.S.C. 1158(a), governs who may ``apply for asylum'' and includes
several categorical bars, such as the bar for applications for
noncitizens present in the country for more than one year. INA
208(a)(1), (2)(B), 8 U.S.C. 1158(a)(1), (2)(B); see INA 241(a)(5), 8
U.S.C. 1231(a)(5). Section 208(b) of the INA, 8 U.S.C. 1158(b), in
turn, governs who is eligible to be granted asylum. Specifically,
section 208(b)(1)(A) of the INA, 8 U.S.C. 1158(b)(1)(A), provides that
the Attorney General or the Secretary ``may grant asylum to an alien
who has applied,'' INA 208(b)(2), 8 U.S.C. 1158(b)(2), then specifies
six categories of noncitizens to whom ``[p]aragraph (1)'' (i.e., the
discretionary authority to grant asylum to an applicant) ``shall not
apply.'' Any noncitizen falling within one of those categories may
apply for asylum under section 208(a)(1) of the INA, 8 U.S.C.
1158(a)(1), but is categorically ineligible
[[Page 48736]]
to receive it under section 208(b) of the INA, 8 U.S.C. 1158(b).
The broad preemptive sweep that the Ninth Circuit attributed to
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1), also fails to
account for the discretionary nature of asylum. No noncitizen ever has
a right to be granted asylum. The ultimate ``decision whether asylum
should be granted to an eligible alien is committed to the Attorney
General's [and the Secretary's] discretion.'' INS v. Aguirre-Aguirre,
526 U.S. 415, 420 (1999). The East Bay III court did not dispute that
manner of entry is a permissible consideration in determining whether
to exercise that discretion to grant asylum in individual cases. 99
F.3d at 671; see also Matter of Pula, 19 I&N Dec. at 473; Fook Hong Mak
v. INS, 435 F.2d 728, 730 (2d Cir. 1970) (Friendly, J.) (upholding the
INS's authority to ``determine[ ] certain conduct to be so inimical to
the statutory scheme that all persons who have engaged in it shall be
ineligible for favorable consideration'').
The East Bay III court also suggested that a regulation
categorically barring asylum based on manner of entry is inconsistent
with the United States' commitments under the Refugee Protocol, in
which the United States adhered to specified provisions of the Refugee
Convention. See 993 F.3d at 972-75. Even accepting East Bay III's
reasoning on this point, that reasoning is limited to a categorical
eligibility bar premised on manner of entry; this IFR does not
implicate the same concerns as the prior categorical bar on ``manner of
entry'' for the reasons identified above. In any event, the East Bay
III court's conclusion was incorrect. The United States' non-
refoulement obligation under Article 33 of the Refugee Convention is
implemented by statute through the provision in section 241(b)(3) of
the INA, 8 U.S.C. 1231(b)(3)(A), for mandatory withholding of removal.
This rule specifically preserves the availability of that protection
from removal. The INA's provision in section 208 of the INA, 8 U.S.C.
1158, for the discretionary granting of asylum instead aligns with
Article 34 of the Refugee Convention, which is precatory and does not
require any signatory to actually grant asylum to all those who are
eligible. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41
(1987). The East Bay III court also misread Article 31(1) of the
Refugee Convention, which pertains only to ``penalties'' imposed ``on
account of . . . illegal entry or presence'' on refugees who, among
other criteria, are ``coming directly from a territory where'' they
face persecution. See, e.g., Singh v. Nelson, 623 F. Supp. 545, 560-61
& n.14 (S.D.N.Y. 1985) (quoting the Refugee Convention). And a bar to
the granting of the discretionary relief of asylum is not a penalty
under Article 31(1), especially given that the noncitizen remains
eligible to apply for statutory withholding of removal, which
implements U.S. non-refoulement obligations under the Refugee Protocol.
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).
iii. Litigation Over Other Limitations
The Departments also acknowledge other prior precedent concerning
the scope of the Departments' statutory rulemaking authority under
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Specifically,
when reviewing the TCT Bar final rule, the Ninth Circuit in East Bay
Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (``East Bay
I''), held that a new condition on asylum eligibility under section
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), must ``further[ ] the
purpose'' of another provision in section 208 to be ``consistent with''
it. 994 F.3d at 977, 977-80. The Departments disagree. A requirement
that additional asylum limitations can only ``further[ ] the purpose''
of the existing exceptions by either targeting threats to the nation or
promoting the purposes the Ninth Circuit identified in the safe-third-
country or firm-resettlement bars, id. at 977, is irreconcilable with
the statute's meaning and conflicts with its history. Not only has
Congress adopted asylum bars that do not further the purpose the Ninth
Circuit identified--e.g., the one-year filing deadline and the bar on
successive applications--it has granted to the Departments the broad
discretion to add more such bars. The Ninth Circuit's approach is also
inconsistent with Trump v. Hawaii, 585 U.S. 667, 690-91 (2018) (INA's
express provisions governing entry ``did not implicitly foreclose the
Executive from imposing tighter restrictions,'' even if restrictions
addressed a subject that is ``similar'' to one that Congress ``already
touch[ed] on''). The statutory asylum bars likewise do not foreclose
imposing further conditions, even if those conditions address subjects
similar to those already in the asylum statute. See, e.g., INA
241(a)(5), 8 U.S.C. 1231(a)(5) (barring from asylum those whose orders
of removal have been reinstated regardless whether they have asylum
claims stemming from events that occurred after the original order of
removal); see R-S-C v. Sessions, 869 F.3d 1176, 1184 (10th Cir. 2017)
(reconciling the reinstatement provision's bar on asylum with section
208's allowing noncitizens to apply for asylum regardless of manner of
entry).
Regardless, this rule is consistent with section 208 of the INA, 8
U.S.C. 1158, as a limitation on asylum eligibility.\180\ The President
has determined that, under certain emergency border circumstances,
entries must be suspended and limited because in such circumstances the
border security and immigration systems lack capacity to deliver timely
decisions and timely consequences, which threatens to incentivize
further migration. And in light of such circumstances and their
pernicious effects, the Departments have determined that special
procedures must be used to quickly process the influx of noncitizens,
including those seeking asylum. Those determinations do not conflict
with the text or structure of section 208 of the INA, 8 U.S.C. 1158,
and are consistent with (and an appropriate exercise of the
Departments' authority under) that provision. Nothing more is required
for the rule to constitute a valid exercise of authority under section
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C).
---------------------------------------------------------------------------
\180\ The Departments' interpretation of the phrase ``consistent
with'' is supported by judicial interpretation of the term in other
contexts. The D.C. Circuit, for example, has cautioned against
construing ``consistent with'' too narrowly in a Clean Air Act case.
Envtl. Def. Fund, Inc. v. EPA, 82 F.3d 451, 457 (D.C. Cir. 1996)
(per curiam), amended by 92 F.3d 1209 (D.C. Cir. 1996). The court
emphasized that this ``flexible statutory language'' does not
require ``exact correspondence . . . but only congruity or
compatibility'' and underscored that the phrase's ambiguity
warranted deference to the agency's policy. Id. Other courts have
adopted the same understanding of ``consistent with.'' See, e.g.,
Jimenez-Rodriguez v. Garland, 996 F.3d 190, 198 (4th Cir. 2021)
(``The phrase `consistent with' does not require `exact
correspondence . . . but only congruity or compatibility.' ''
(quoting Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1269
(D.C. Cir. 2004))); Nat'l Wildlife Fed'n v. Sec'y of U.S. Dep't of
Transp., 960 F.3d 872, 878 (6th Cir. 2020) (``[T]he phrase
`consistent with' cannot bear the weight that the Federation places
on it. Response plans are `consistent' with the contingency plans if
they `show no noteworthy opposing, conflicting, inharmonious, or
contradictory qualities'--in other words, if the documents put
together are `not self-contradictory. Consistency does not mean
exact, point-by-point correspondence.'' (cleaned up)).
---------------------------------------------------------------------------
Moreover, this rule's propriety is reinforced by the statutory bars
on asylum Congress has enacted. Just as Congress has chosen to promote
systemic efficiency by prohibiting asylum applications filed more than
one year after entry and by generally prohibiting noncitizens from
pursuing successive asylum applications, INA 208(a)(2)(B)-(C), 8 U.S.C.
1158(a)(2)(B)-(C), this rule furthers systemic efficiency by limiting
asylum in certain situations where the strains on the immigration
system are at their peak. Congress did
[[Page 48737]]
not foreclose the Departments from likewise taking systemic
considerations into account when exercising their discretion to add
conditions or limitations on eligibility. Indeed, the ultimate
consideration when determining whether someone warrants a grant of
relief as a matter of discretion is whether granting relief ``appears
in the best interests of th[e] country,'' Matter of Marin, 16 I&N Dec.
581, 584 (BIA 1978), a point Congress was aware of when it amended the
INA in 1996, see id. (best interests standard preceded 1996 amendments
by nearly two decades). The Departments find that the rule's limitation
on asylum eligibility furthers the efficiency aims of the asylum
statute and is in the best interests of the United States because it
allows the Departments to deliver timely decisions and timely
consequences in order to address the emergency border circumstances
discussed in the Proclamation and this rule.
Consistent with the best-interest standard, the BIA has long held a
noncitizen's ``circumvention of orderly refugee procedures'' to be
relevant to whether a favorable exercise of discretion is warranted.
Matter of Pula, 19 I&N Dec. at 473. And the BIA has specifically
considered as relevant factors the noncitizen's ``manner of entry or
attempted entry.'' Id. Although the rule places greater weight on these
factors under certain emergency circumstances, this decades-old
precedent establishes that the Departments can permissibly take into
account manner of entry. And exactly how much weight to place on those
factors, and whether to do so in weighing asylum eligibility, falls
well within the broad discretion conferred on the Departments by
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Cf. Lopez v.
Davis, 531 U.S. 230, 244 (2001); Reno v. Flores, 507 U.S. 292, 313
(1993); Yang, 79 F.3d at 936-37.
The Departments acknowledge that Matter of Pula did not consider a
noncitizen's arrival at a POE to weigh against a discretionary grant of
asylum. See 19 I&N Dec. at 473. But Matter of Pula also did not involve
circumstances in which the country's border faced an emergency of a
magnitude comparable to the emergency border circumstances described by
the Proclamation and this rule, where even arrivals at POEs
significantly contribute to the Departments' inability to process
migrants and deliver timely decisions and timely consequences to those
without a lawful basis to remain. Given the emergency border
circumstances described by the Proclamation and the President's
direction in section 3(d) of the Proclamation to promptly consider
issuing any instructions, orders, or regulations as may be necessary to
address the situation at the southern border; and given the strain on
operations and resources that high volumes of new arrivals create, such
that consequences cannot be appropriately delivered; the Departments
believe that the rule's limitation on asylum eligibility should apply
to noncitizens who enter the United States across the southern border,
including at a POE during the emergency border circumstances described
in the Proclamation and this rule, unless an exception applies.
In Matter of Pula, the BIA explained that a noncitizen's
``circumvention of orderly refugee procedures,'' including their
``manner of entry or attempted entry,'' is a relevant factor for
asylum, 19 I&N Dec. at 473-74, and this rule merely takes such
circumvention into account. Because the Proclamation contains an
exception for arrivals at a pre-scheduled time and place under a
process approved by the Secretary, this rule's limitation on asylum
will also not apply to such arrivals. One of the mechanisms by which a
noncitizen may arrive at a POE with a pre-scheduled time to appear is
through the CBP One app. Use of the CBP One app creates efficiencies
that 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. Indeed, without CBP One, noncitizens could have longer
wait times for processing at the POE depending on daily operational
constraints and circumstances. See 88 FR at 31342. During emergency
border circumstances, use of the CBP One app is especially critical
because it allows DHS to maximize the use of its limited resources.
See, e.g., id. at 31317-18 (explaining the benefits of having
noncitizens pre-schedule appointments using the CBP One app). The CBP
One app and other lawful pathways that the United States Government has
made available to those seeking to enter the United States, including
to seek asylum or protection, are intended to allow for orderly
processing. Therefore, those who ``circumvent orderly refugee
procedures,'' consistent with Matter of Pula, 19 I&N Dec. at 474,
during emergency border circumstances without meeting one of the
recognized exceptions will be ineligible for asylum.\181\
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\181\ As the BIA further explained with respect to the asylum
statute as it existed at the time, ``[a] careful reading of the
language of [section 208(a)(1)] reveals that the phrase
`irrespective of such alien's status' modifies only the word
`alien.' '' Matter of Pula, 19 I&N Dec. at 473. ``The function of
that phrase is to ensure that the procedure established by the
Attorney General for asylum applications includes provisions for
adjudicating applications from any alien present in the United
States or at a land or port of entry, `irrespective of such alien's
status.' '' Id. (collecting cases). Congress accordingly made clear
that noncitizens like stowaways, who, at the time the Refugee Act
was passed, could not avail themselves of our immigration laws,
would be eligible at least to apply for asylum ``irrespective of
[their] status.'' Id. ``Thus, while section 208(a) provides that an
asylum application be accepted from an alien `irrespective of such
alien's status,' no language in that section precludes the
consideration of the alien's status in granting or denying the
application in the exercise of discretion.'' Id.
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iv. This Limitation on Asylum Eligibility
For the reasons discussed above, the East Bay cases dealt with
different limitations on asylum and involved different factual
circumstances, and hence are distinguishable from this rule.\182\
Moreover, the Departments respectfully disagree with some of the
substantive holdings of the Ninth Circuit and the district court as
described above. The Secretary and the Attorney General permissibly may
determine that, during emergency border circumstances, it is in the
``best interests of th[e] country,'' Matter of Marin, 16 I&N Dec. at
584, to limit asylum eligibility for those who enter in violation of
the Proclamation, which, in turn, will allow the Departments to
allocate their limited resources to prioritize processing noncitizens
who do not enter in violation of it. Nothing in section 208 of the INA,
8 U.S.C. 1158, forecloses that view, and securing the best interests of
the country is a reasonable policy goal under section 208 and thus
``consistent with'' it. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see
Yang, 79 F.3d at 939 (observing that ``it is precisely to cope with the
unexpected that Congress deferred to the experience and expertise of
the Attorney General in fashioning section 208''); see also id. at 935
(``We must reject the argument that [the] regulation [establishing a
categorical discretionary bar to asylum eligibility] exceeds the
authority of the Attorney General if we find that the regulation has a
`reasonable foundation . . . that is, if it rationally pursues a
purpose that it is lawful for the
[[Page 48738]]
[immigration agencies] to seek.' '' (quoting Reno, 507 U.S. at 309)).
---------------------------------------------------------------------------
\182\ The Departments have considered the July 25, 2023 district
court decision vacating the Circumvention of Lawful Pathways rule.
See E. Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025 (N.D.
Cal. 2023). That decision applied the holdings of the other East Bay
decisions generally, and the Departments do not see a need to
address it separately except to note that as of publication the
court's vacatur remains stayed pending appeal in the Ninth Circuit,
and thus the rule is in effect. See E. Bay Sanctuary Covenant v.
Biden, No. 23-16032, 2023 WL 11662094, at *1 (9th Cir. Aug. 3,
2023).
---------------------------------------------------------------------------
Beyond the clear statutory text, settled principles of
administrative law dictate that the Departments may adopt generally
applicable eligibility requirements. Those principles establish that it
is permissible for agencies to establish general rules or guidelines in
lieu of case-by-case assessments, so long as those rules or guidelines
are not inconsistent with the statute, and that principle is especially
salient here as asylum is inherently discretionary in nature. See
Lopez, 531 U.S. at 243-44 (rejecting the argument that the Bureau of
Prisons was required to make ``case-by-case assessments'' of
eligibility for sentence reductions and explaining that an agency ``is
not required continually to revisit `issues that may be established
fairly and efficiently in a single rulemaking' '' (quoting Heckler v.
Campbell, 461 U.S.458, 467 (1983))); Reno, 507 U.S. at 313-14 (holding
that a statute requiring ``individualized determination[s]'' does not
prevent immigration authorities from using ``reasonable presumptions
and generic rules'' (quotation marks omitted)); Fook Hong Mak, 435 F.2d
at 730 (upholding INS's authority to ``determine[ ] certain conduct to
be so inimical to the statutory scheme that all persons who have
engaged in it shall be ineligible for favorable consideration'' and
observing that there is no legal principle forbidding an agency that is
``vested with discretionary power'' from determining that it will not
use that power ``in favor of a particular class on a case-by-case
basis''); see also Singh, 623 F. Supp. at 556 (``attempting to
discourage people from entering the United States without permission .
. . provides a rational basis for distinguishing among categories of
illegal aliens''); Matter of Salim, 18 I&N Dec. 311, 315-16 (BIA 1982)
(before Pula, explaining that a certain form of entry can be considered
an ``extremely adverse factor which can only be overcome with the most
unusual showing of countervailing equities''); cf. Peulic v. Garland,
22 F.4th 340, 346-48 (1st Cir. 2022) (rejecting challenge to Matter of
Jean, 23 I&N Dec. 373 (A.G. 2002), which established strong presumption
against a favorable exercise of discretion for certain categories of
applicants for asylee and refugee adjustment of status under section
209(c) of the INA, 8 U.S.C. 1159(c) (citing cases)); Cisneros v. Lynch,
834 F.3d 857, 863-64 (7th Cir. 2016) (rejecting challenge to 8 CFR
1212.7(d), which established strong presumption against a favorable
exercise of discretion for waivers under section 212(h) of the INA, 8
U.S.C. 1182(h), for certain classes of noncitizens, even if a few could
meet the heightened discretionary standard (citing cases)).
The Departments recognize that in the Circumvention of Lawful
Pathways rule they declined to adopt on a permanent basis the
Proclamation Bar IFR because it conflicted with the tailored approach
in that rule and because barring all noncitizens who enter between POEs
along the SWB was not the proper approach under the circumstances the
Departments then faced. See 88 FR at 31432. The Departments continue to
believe that the approach taken in the Proclamation Bar IFR conflicts
with the tailored approach of the Circumvention of Lawful Pathways rule
as well as the tailored approach in this rule, which borrows heavily
from the Circumvention of Lawful Pathways rule. The Proclamation Bar
IFR contained no exceptions and was open-ended, allowing for
implementation of any future proclamations or orders regardless of
their terms. See 83 FR at 55952. In contrast, like the Circumvention of
Lawful Pathways rule, this rule is narrowly tailored to address the
emergency border circumstances described in the Proclamation and the
rule and includes exceptions to account for circumstances in which
waiting for an end to the suspension and limitation on entry and the
limitation on asylum eligibility is not possible. And by relating the
rule to a specific proclamation and the circumstances described
therein, the Departments have been able to tailor its provisions to the
terms of the Proclamation and the circumstances under which it is
applied.
Finally, the Departments acknowledge that, unlike the Circumvention
of Lawful Pathways rule, neither the Proclamation nor this rule excepts
Mexican nationals. See 8 CFR 208.33(a)(1)(iii), 1208.33(a)(1)(iii)
(providing that the Lawful Pathways rebuttable presumption of asylum
ineligibility applies only to those who enter the United States along
the SWB after transiting through a third country). Traveling through a
third country is a key part of the Circumvention of Lawful Pathways
rule because one lawful pathway for obtaining protection is applying
for protection in a third country. See 8 CFR 208.33(a)(2)(ii)(C),
1208.33(a)(2)(ii)(C). The Departments recognize that some Mexican
nationals seek asylum and protection in the United States. Indeed,
since 2021, DHS has seen a sharp increase in total SWB encounters of
Mexican nationals, from a pre-pandemic (FY 2014 through FY 2019)
average of approximately 239,000 to more than 717,000 in FY 2023.\183\
Of note, this increase in encounters has been accompanied by a sharp
increase in referrals for credible fear interviews of Mexican nationals
in expedited removal. The percentage of Mexican nationals processed for
expedited removal who claimed a fear of return averaged 6 percent in
the pre-pandemic period (FY 2014 through FY 2019), and never exceeded 7
percent for any fiscal year.\184\ But 29 percent of all Mexican
nationals processed for expedited removal at the SWB from May 12, 2023,
to March 31, 2024, made fear claims, including 39 percent in February
2024.\185\ Because of this sharp increase from the historical average,
the Departments believe that applying this rule to Mexican nationals
will result in faster processing of a significant number of Mexican
noncitizens and thereby significantly advance this rule's overarching
goal of alleviating the strain on the border security and immigration
systems while entry is suspended and limited under the Proclamation. At
the same time, the Departments continue to believe that, if encounters
decrease to levels under which the systems do not experience the
substantial strains they currently experience while the Circumvention
of Lawful Pathways rule remains in effect, the application of that rule
only to those noncitizens who travel through a third country en route
to the United States appropriately accounts for the goals of
encouraging migrants to seek protection in other countries or to use
safe, orderly, and lawful pathways to enter the United States, ensuring
the border security and immigration systems can efficiently process
noncitizens, and affording asylum and other protection to those seeking
it who establish their eligibility.
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\183\ March 2024 OHSS Persist Dataset; see also OHSS,
Immigration Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border
Encounters by Agency and Selected Citizenship'').
\184\ OHSS Enforcement Lifecycle December 31, 2023.
\185\ OHSS analysis of UIP ER Daily Report Data Dashboard as of
April 2, 2024.
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Under this rule, Mexican nationals will still be eligible for
asylum in some circumstances--they may present at a POE pursuant to a
pre-scheduled appointment, or, if they are unable to wait in Mexico
while scheduling an appointment, they may be able to establish an
exception to the Proclamation or exceptionally compelling circumstances
under the rule. Even if they are not able to do so, the rule does not
preclude eligibility for
[[Page 48739]]
statutory withholding of removal and CAT protection, and they will be
able to seek such protection. In the absence of an exception, however,
Mexican nationals should be ineligible for asylum under the rule
because, during the emergency border circumstances described in the
Proclamation and this rule, it is important to deter irregular entry by
all noncitizens regardless of country of origin. And the above data
make clear that additional incentives are necessary to encourage
Mexican nationals to pursue the available lawful, safe, and orderly
pathways, rather than entering the country unlawfully.
v. Application During Credible Fear Screenings and Reviews
The limitation on asylum eligibility adopted here applies during
merits adjudications, see 8 CFR 208.13(g), 1208.13(g), but will most
frequently be relevant for noncitizens who are subject to expedited
removal under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).
Noncitizens in expedited removal are subject to removal ``without
further hearing or review'' unless they indicate an intention to apply
for asylum or fear of persecution. INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i). Noncitizens in expedited removal who indicate an
intention to apply for asylum or fear of persecution are referred to an
AO for an interview to determine if they have a credible fear of
persecution and should accordingly remain in proceedings for further
consideration of the application. INA 235(b)(1)(A)(ii), (b)(1)(B)(i),
(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (b)(1)(B)(i), (ii). In addition, AOs
consider whether a noncitizen in expedited removal may be eligible for
statutory withholding of removal or for CAT protection. See 8 CFR
208.30(e)(2), (3).
This rule instructs AOs and IJs to apply the limitation it adopts
during credible fear screenings and reviews. 8 CFR 208.35(b),
1208.35(b). Under the rule, when screening for asylum eligibility, the
AO and IJ must determine whether there is a significant possibility
that the noncitizen would be able to establish by a preponderance of
the evidence that they were not subject to the rule's limitation on
asylum eligibility or that they will be able to establish by a
preponderance of the evidence exceptionally compelling circumstances.
For the reasons noted in the Circumvention of Lawful Pathways rule, the
Departments expect that noncitizens rarely would be found excepted from
the limitation on asylum for credible fear purposes and subsequently be
found not to be excepted at the merits stage. See 88 FR at 31380-81.
The Departments recognize that in the recent past they changed
course regarding whether to apply bars and conditions and limitations
on asylum eligibility during credible fear screenings by rescinding
provisions that would have applied the mandatory asylum bars during
credible fear screenings. See 87 FR at 18135. In the Circumvention of
Lawful Pathways NPRM, the Departments explained their reasoning for
nevertheless applying that condition on asylum eligibility during
credible fear screenings, stating that the rebuttable presumption would
be less difficult to apply than other bars, limitations, or conditions
because the facts regarding the presumption's applicability,
exceptions, and rebuttal circumstances would generally be
straightforward to apply. 88 FR at 11744-45. Indeed, the Departments
have applied the presumption effectively in credible fear screenings
for the time in which the Circumvention of Lawful Pathways rule has
been in effect.\186\
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\186\ In the post-May 12, 2023, period, the median time to refer
noncitizens encountered by CBP at the SWB who claim a fear for
credible fear interviews has decreased by 77 percent from its
historical average, from 13 days in the FY 2014 to FY 2019 pre-
pandemic period to 3 days in the four weeks ending March 31, 2024;
for those who receive negative fear determinations or administrative
closures that are not referred to EOIR, the median time from
encounter to removal, in the same time frames, decreased 85 percent
from 73 days to 11 days. Pre-pandemic medians based on OHSS analysis
of OHSS Enforcement Lifecycle December 31, 2023; post-May 12
estimates based on OHSS analysis of operational CBP, ICE, USCIS, and
DOJ/EOIR data downloaded from UIP on April 2, 2024. The Departments
note that DHS recently published a notice of proposed rulemaking
proposing that certain mandatory bars be considered at the screening
stage under a reasonable possibility standard. Application of
Certain Mandatory Bars in Fear Screenings, 89 FR 41347 (May 13,
2024). If DHS were to finalize that rule as drafted, this rule's
``reasonable probability'' standard would still apply when the
noncitizen is subject to this rule's limitation on asylum
eligibility.
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The limitation adopted here is in many ways parallel to the Lawful
Pathways rebuttable presumption--specifically, it borrows from the
Circumvention of Lawful Pathways rule's rebuttal circumstances--
although it is more straightforward because it does not include the
Lawful Pathways rebuttable presumption's exceptions for those who
applied and were denied asylum or other protection in a third country
and those who were unable to schedule an appointment through the CBP
One app for certain reasons. See 8 CFR 208.33(a)(2)(ii)(B)-(C),
1208.33(a)(2)(ii)(B)-(C). Given the Departments' experience with
implementing the Circumvention of Lawful Pathways rule, the Departments
are confident that the limitation and exceptions established here will
be just as straightforward to apply as the similar provisions are for
the Circumvention of Lawful Pathways rule.
b. Manifestation of Fear
This rule also alters certain aspects of the expedited removal
process for individuals who enter across the southern border during
emergency border circumstances and are not described in section 3(b) of
the Proclamation. When an immigration officer inspects a noncitizen at
a POE or between POEs and determines that the noncitizen is
inadmissible and will be subject to expedited removal, current
regulations require the immigration officer to take certain steps
before ordering the noncitizen removed from the United States. See 8
CFR 235.3(b). This process takes approximately two hours per individual
in USBP custody. In particular, the immigration officer conducts an
inspection, including taking biometrics; running background checks;
collecting biographic information, citizenship, and place and manner of
entry; and advising the noncitizen of the charges against them. 8 CFR
235.3(b)(2)(i). The noncitizen has an opportunity to provide a
response. Id. The officer must also read (or have read through an
interpreter, if appropriate) the information contained in the Form I-
867A, Record of Sworn Statement in Proceedings under Section 235(b)(1)
of the Act, which advises the noncitizen of their ability to seek
protection in the United States. Id. The examining immigration officer
must also read the noncitizen the questions on the Form I-867B, Jurat
for Record of Sworn Statement in Proceedings under Section 235(b)(1) of
the Act, which asks, among other things, whether the noncitizen has any
fear of return or would be harmed if returned. Id. After the noncitizen
has provided answers to the questions on Form I-867B, the immigration
officer records the answers, and the noncitizen then reads the
statement (or has the statement read to them) and signs the statement.
Id. On average, USBP agents spend about 20 to 30 minutes of the
inspection period completing both the Form I-867A and the Form I-867B.
Finally, a noncitizen who indicates a fear of return or an intention to
seek asylum is served with and acknowledges receipt of a Form M-444,
which includes more detailed information about the credible fear
process. 8 CFR 235.3(b)(4)(i).
Instead of this current process, DHS is adding a new provision at 8
CFR 235.15(b)(4) to modify the process for determining whether a
noncitizen who enters across the southern border and is
[[Page 48740]]
not described in section 3(b) of the Proclamation during the emergency
circumstances giving rise to the Proclamation's suspension and
limitation on entry should be referred to an AO for a credible fear
interview. These procedures apply during emergency border
circumstances. See 8 CFR 235.15(a). Under the new rule, immigration
officers will conduct an immigration inspection and, where the
noncitizen will be subject to expedited removal, will advise the
noncitizen of the removal charges against them and provide an
opportunity to respond, consistent with existing practice and
regulations outlined above. 8 CFR 235.3(b)(2)(i). However, the
immigration officer will not complete either the Form I-867A or Form I-
867B or a sworn statement. Moreover, the officer will not be required
to provide individualized advisals on asylum or ask the noncitizen
questions related to whether they have a fear. See 8 CFR 235.15(b)(4).
Under the rule, the immigration officer will instead refer the
noncitizen to an AO for a credible fear interview only if the
noncitizen manifests a fear of return, expresses an intention to apply
for asylum, expresses a fear of persecution or torture, or expresses a
fear of return to the noncitizen's country or country of removal. See
id. This manifestation can occur at any time in the process and can be
expressed verbally, non-verbally, or physically.\187\ In such
situations, the immigration officer will not proceed further with the
removal and will comply with the existing regulations, policies, and
procedures, including as outlined in 8 CFR 235.3(b)(4), regarding
processing and referring noncitizens for credible fear interviews. At
the time that a noncitizen is referred for a credible fear interview,
they will receive additional information about the credible fear
process that has the same substantive information as in the current
process, but without the requirement that such information be provided
on a particular form.
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\187\ By these terms, DHS intends to include a wide range of
human communication and behavior, such that ``non-verbally'' could
include things like noises or sounds without any words, while
physical manifestations could include behaviors, with or without
sound, such as shaking, crying, or signs of abuse. See U.S. State
Dep't, Bureau of Population, Refugees, and Migration, Fact Sheet:
U.S. Commemorations Pledges, Fact Sheet, Bureau of Population,
Refugees, and Migration (June 24, 2013), https://2009-2017.state.gov/j/prm/releases/factsheets/2013/211074.htm. A
noncitizen could thus manifest a fear of returning to a previous
location without using actual words to state that they are
specifically afraid of return to their home country or country of
removal.
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DHS is making these changes to address the emergency circumstances
at the southern border discussed in the Proclamation and the rule in a
manner consistent with its legal obligations. DHS has broad authority
to change the procedures that immigration officers apply to determine
whether a noncitizen subject to expedited removal will be referred for
a credible fear interview by an AO so long as those procedures are
consistent with the INA. See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1),
(3) (granting the Secretary the authority to establish regulations and
take other actions ``necessary for carrying out'' the Secretary's
authority under the immigration laws); see also 6 U.S.C. 202; Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 42 (1983) (emphasizing that agencies ``must be given ample
latitude to adapt their rules and policies to the demands of changing
circumstances'' (quotation marks omitted)).
DHS believes that the above-described changes are fully consistent
with the statutory procedures governing expedited removal under section
235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A). Section 235(b)(1)(A)
of the INA, 8 U.S.C. 1225(b)(1)(A), does not specify the relevant
aspects of the procedures that immigration officers must follow to
determine whether a noncitizen who is subject to expedited removal can
be ordered removed or whether the noncitizen must be referred to an AO
for a credible fear interview. Instead, the statute provides that the
immigration officer may order removed any noncitizen who, subject to
certain exceptions, is arriving in the United States, or who is within
a class of noncitizens subject to expedited removal as designated by
the Secretary, and who is inadmissible under sections 212(a)(6)(C) or
212(a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or 1182(a)(7). The statute
further provides that only those noncitizens who ``indicate[] either an
intention to apply for asylum . . . or a fear of persecution,'' INA
235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), must be referred to an AO
for a credible fear interview, INA 235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii). But the statute does not require immigration
officers to affirmatively ask every noncitizen subject to expedited
removal if they have a fear of persecution or torture. Moreover,
Congress has not provided a particular definition of the phrase
``indicates . . . an intention.'' The statute's text thus gives DHS
discretion to employ the procedures it reasonably concludes are
appropriate to implement section 235(b)(1)(A)(ii) of the INA, 8 U.S.C.
1225(b)(1)(A)(ii).\188\
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\188\ See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, Inc., 435 U.S. 519, 543 (1978) (``Absent constitutional
constraints or extremely compelling circumstances the administrative
agencies should be free to fashion their own rules of procedure and
to pursue methods of inquiry capable of permitting them to discharge
their multitudinous duties.'' (quotation marks omitted)); United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950)
(``[T]he decision to admit or to exclude an alien may be lawfully
placed with the President, who may in turn delegate the carrying out
of this function to a responsible executive officer of the
sovereign, such as the Attorney General.''); Las Americas Immigrant
Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 18 (D.D.C. 2020).
---------------------------------------------------------------------------
Interpreting the statute in this manner is also consistent with the
United States' international law obligations. As described in Section
II.B of this preamble, 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 ``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.'' Refugee Convention, supra, 19 U.S.T. at 6276, 189 U.N.T.S.
at 176.\189\ Neither the Refugee Convention nor the Protocol prescribes
minimum screening procedures that must be implemented.\190\ Rather,
each state party has the authority ``to establish the procedure that it
considers most appropriate, having regard to its particular
constitutional and administrative structure,'' as long as such
procedures are consistent with the purposes of the Convention.\191\ The
United States has also ratified the CAT, which includes a non-
refoulement provision at Article 3 that prohibits the return of a
person from the United States to a country where there are
``substantial grounds for believing'' the person would be tortured. See
Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007); see id. at 115
(`` `[T]he United States understands the phrase, `where there are
substantial grounds for believing that he would be in danger of being
subjected to torture,' as used in
[[Page 48741]]
Article 3 of the Convention, to mean `if it is more likely than not
that he would be tortured.'' '' (quoting the Senate resolution of
ratification)). The CAT similarly does not prescribe screening
requirements. As such, the United States has broad discretion in what
procedures are appropriate to implement, through domestic law, to
satisfy its non-refoulement obligations.\192\
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\189\ See INS v. Stevic, 467 U.S. 407, 428 & n.22 (1984); Al-
Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967
Protocol is not self-executing, nor does it confer any rights beyond
those granted by implementing domestic legislation.'').
\190\ UNHCR, Handbook on Procedures and Criteria for Determining
Refugee Status ] 189 (Jan. 1992 ed., reissued Feb. 2019), https://www.unhcr.org/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967.
\191\ Id.
\192\ Although neither the Refugee Convention nor the Refugee
Protocol nor the CAT includes specific screening requirements, the
United States is bound not to return noncitizens from the United
States to countries where they would be tortured, or, with limited
exceptions, to countries where they would be persecuted on account
of a protected ground. As discussed in detail above in Section
III.A.1 of this preamble, the United States implements its non-
refoulement obligations under Article 33 of the Refugee Convention
(via the Refugee Protocol) through the statutory withholding of
removal provision in section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), not through the asylum provisions at section 208 of the
INA, 8 U.S.C. 1158. And the United States implements its obligations
under the CAT through regulations. See FARRA, Pub. L. 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.
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The United States implements its obligations under the Refugee
Protocol and the CAT through the INA and related rulemaking, and it
provides specified procedures--including in the expedited removal
process, as described above--for seeking asylum or other protection in
the United States. The process outlined in this rule temporarily
affords immigration officers the ability to refer noncitizens to an AO
for a credible fear interview if the noncitizen manifests a fear of
return, expresses an intention to apply for asylum, expresses a fear of
persecution or torture, or expresses a fear of return to the
noncitizen's country or country of removal. The Departments have
concluded that the manifestation standard is consistent with their
obligations (1) not to return noncitizens to countries where they would
be persecuted; and (2) not to return noncitizens to countries where it
is more likely than not that they would be tortured.\193\
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\193\ 136 Cong. Rec. 36198 (1990) (recording the Senate's advice
and consent to the ratification of the CAT, subject to certain
reservations, understandings, and declarations, including that the
phrase in Article 3 of the CAT, `` `where there are substantial
grounds for believing that he would be in danger of being subjected
to torture,' '' is understood to mean `` `if it is more likely than
not that he would be tortured' ''); see also Pierre, 502 F.3d at
115.
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In addition to changing to a ``manifestation'' standard, CBP is
implementing operational changes to generally inform noncitizens
subject to expedited removal that, if they have a fear of return, they
should inform an immigration officer, and they will be referred to an
AO for consideration of their fear claim. DHS believes that these
operational changes and notice provisions, as implemented, are
consistent with the notice provision in section 235(b)(1)(B)(iv) of the
INA, 8 U.S.C. 1225(b)(1)(B)(iv).\194\ Moreover, CBP will provide
immigration officers with information on how to apply the manifestation
standard, including that manifestation may occur verbally, non-
verbally, or physically.
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\194\ DHS acknowledges that an argument could be made that the
requirement in section 235(b)(1)(B)(iv) of the INA, 8 U.S.C.
1225(b)(1)(B)(iv), which states that DHS ``shall provide information
concerning the asylum interview . . . to aliens who may be
eligible,'' is not limited only to noncitizens who are eligible for
a credible fear interview, but instead applies to noncitizens who
are suspected of qualifying for expedited removal and ``may'' be
eligible for an interview. In all events, DHS is providing
information to noncitizens who are being processed for expedited
removal about their right to seek asylum and protection in the
United States. As explained below, DHS is posting signs on display
for all noncitizens in CBP custody and including information in a
video that will be on display for the vast majority of noncitizens
in CBP custody, informing them that if they have a fear of return,
they should inform an immigration officer and, if they do, an AO
will conduct an interview and ask the noncitizens questions about
any fear they may have. Noncitizens who indicate a fear of return
will be given a more detailed written explanation of the credible
fear interview process prior to being referred for the interview.
That explanation will be translated into certain common languages or
will be read to the noncitizen if required.
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Upon implementation of this rule, signs will be posted in areas of
CBP facilities where individuals are most likely to see those signs.
The signs will provide clear direction to individuals that, in addition
to being able to inform the inspecting immigration officers of urgent
medical or other concerns, they should inform the inspecting
immigration officer if they have a fear of return, and that, if they
do, they will be referred for a screening. These signs will be in the
languages spoken by the most common nationalities encountered by CBP
and thus will likely be understood by those described in the
Proclamation and likely subject to the provisions of this rule.\195\
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\195\ Currently, these languages are English, Spanish, Mandarin,
and Hindi.
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Moreover, in CBP's large capacity facilities--where the vast
majority of individuals subject to expedited removal undergo
processing--a short video explaining the importance of raising urgent
medical concerns, a need for food or water, or fear of return will be
shown on a loop in the processing areas and will also be available in
those languages most commonly spoken by those noncitizens encountered
by CBP who may be described in the Proclamation and likely subject to
the provisions of this rule.\196\
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\196\ These large capacity facilities currently hold the vast
majority of individuals in CBP custody. Although the videos will not
be shown at smaller facilities, including small POEs and Border
Patrol stations, these facilities house very few noncitizens who are
subject to the asylum limitation. These small facilities will still
post the relevant signs in the processing areas. And at these small
facilities, resources are such that immigration officers will be
able to devote a great deal of attention to observing individuals,
including for any manifestations of fear or any indication that an
individual requires assistance from a translator or reading
assistance to understand the information provided at the facility,
including the information provided on the signs. Immigration
officers at these facilities are trained to provide such assistance
as needed and will continue to do so under this rule.
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The video will also explain to noncitizens that, if they inform an
immigration officer that they have a fear, an AO will conduct an
interview to ask questions about their fear. Consistent with CBP's
Language Access Plan, CBP provides language assistance services for
those who may not speak one of those languages.\197\ CBP immigration
officers have extensive experience and training in identifying whether
an individual requires a translator or interpreter or is unable to
understand a particular language. In addition, CBP facilities have ``I
Speak'' signs, which are signs that assist literate individuals to
identify a preferred language from one of over 60 possible
languages.\198\ Furthermore, individuals who are unable to read the
signs or communicate effectively in one of the languages in which the
sign and video will be presented will be read the contents of the sign
and video in a language they understand.\199\
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\197\ See CBP, Language Access Plan (Nov. 18, 2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; CBP, Supplementary Language Access Plan (Oct. 30,
2023), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
\198\ See CBP, Language Access Plan 7 (Nov. 18, 2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; see also DHS, DHS Language Access Resources,
https://www.dhs.gov/publication/dhs-language-access-materials (last
updated July 17, 2023); DHS, I Speak . . . Language Identification
Guide, https://www.dhs.gov/sites/default/files/publications/crcl-i-speak-poster-2021.pdf (last updated Mar. 10, 2021).
\199\ These videos and signs will be presented in a manner that
is consistent with how CBP provides other important notifications to
individuals in its facilities. CBP utilizes posters for other
critical information, such as ensuring that individuals are on the
lookout for those who may commit suicide, advising all children in
custody of the amenities available to them (e.g., food, water,
medical care, blankets, and hygiene products), communicating its
zero tolerance regarding sexual assault, and conveying critical
information about oversight entities such as the Office of the
Inspector General. CBP also has a video targeted towards UCs
explaining the process that they will go through. These signs and
videos are similarly posted in the areas of CBP facilities where DHS
is confident they are likely to be seen by noncitizens being
processed.
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[[Page 48742]]
DHS's experience, based on the nature of CBP facilities and the
utility of the existing signs, is that short, concise, and simple
notifications are effective. This is because CBP holds individuals only
for as long as it takes to complete inspection and processing,
including conducting any basic medical screenings and making
arrangements for transfer out of CBP custody. Particularly for those
who are apprehended by USBP between POEs, noncitizens will go through a
number of steps during their time in a CBP facility, including
completion of processing paperwork, fingerprinting, and being
interviewed by an inspecting immigration officer. In many USBP
facilities, these steps occur at the same time as the facility provides
showers and hygiene products, medical evaluations, and food and water.
Given that noncitizens may move through other areas of the facility and
do not remain in custody for a long period of time, DHS regularly
places important signs in both the processing areas and the detention
areas of its facilities, which are the locations where noncitizens
spend time while being inspected or while in CBP custody; DHS is
confident that noncitizens see these existing signs and that the new
signs added as part of this rule are also likely to be seen. DHS has
determined that more complicated videos and signs are less effective
for conveying important information.
DHS acknowledges that these procedures represent a departure from
the justification that the former Immigration and Naturalization
Service (``INS'') provided, in 1997, when it adopted the current
procedures in 8 CFR 235.3(b)(2)(i). At the time, INS explained that
adopting these procedures would ``ensure that bona fide asylum
claimants are given every opportunity to assert their claim[s],'' and
that it was including the requirement that immigration officers must
provide advisals about the credible fear process and ask questions
about fear as ``safeguards'' to ``protect potential asylum claimants.''
See 62 FR at 10318-19. INS further explained that these procedures
would ``not unnecessarily burden[] the inspections process or
encourag[e] spurious asylum claims.'' Id. at 10318. While such
procedures have remained in place since 1997, this fact alone is not an
indication that they are required by the statute, and DHS maintains
discretion to update the procedures in a manner consistent with the
statute. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (holding that an agency changing an established rule need not
justify the change with a more detailed justification than that
supporting the original so long as it can show ``good reasons'' for the
new policy). Given the extraordinary circumstances currently facing the
Departments, DHS has determined it is reasonable to change the
procedures here.
When the existing regulations were adopted in 1997, the situation
at the border was different. In 1998 (the first full year that
statistics concerning the expedited removal process were available),
approximately 80,000 noncitizens were processed for expedited
removal.\200\ In that same year, AOs conducted fewer than 3,000
credible fear interviews \201\ and IJ reviews numbered around 100.\202\
Additionally, at that time, expedited removal was applied only to
``arriving aliens,'' noncitizens processed at a POE, not noncitizens
encountered between POEs.\203\ Expedited removal was not extended to
certain noncitizens encountered after entering between POEs until 2004.
See Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11,
2004) (extending expedited removal to noncitizens encountered within
100 air miles of the border and within 14 days of entry). At that time,
USBP apprehended approximately 1.1 million noncitizens between POEs
annually.\204\ The numbers have changed significantly since that time.
In FY 2023, USBP apprehended more than 2 million noncitizens between
POEs along the SWB.\205\ In February 2024, USBP processed more than
33,000 individuals for expedited removal,\206\ and USBP processed more
than 28,000 in March 2024.\207\ Since May 2023, USCIS has completed
about 3,300 credible fear interviews per week of individuals
encountered at and between SWB POEs,\208\ and in FY 2023, IJs reviewed
over 34,000 credible fear decisions.\209\ These high levels of
encounters and credible fear referrals impose a significant burden on
the expedited removal process and have strained DHS and EOIR resources,
substantially impairing the Departments' ability to deliver timely
decisions and timely consequences. At a processing time of
approximately 2 hours per person, USBP agents spent approximately
56,000 hours--the equivalent of approximately 2,333 calendar days--
processing the approximately 28,000 expedited removal cases in March
2024 under the current process. High numbers, such as those giving rise
to the Proclamation and this rule, increase the likelihood that USBP
facilities will become quickly overcrowded.\210\ This type of crowding
in USBP facilities creates health and safety concerns for noncitizens
and Government personnel.\211\
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\200\ See INS, 1998 Statistical Yearbook of the Immigration and
Naturalization Service 203 (Nov. 1998), https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1998.pdf.
\201\ See id. at 91.
\202\ EOIR, Statistical Yearbook 2000, at D1 (Jan. 2001),
https://www.justice.gov/sites/default/files/eoir/legacy/2001/05/09/SYB2000Final.pdf (reporting that EOIR received 90 credible fear
reviews in FY 1998).
\203\ See 62 FR at 10318-19; compare INA 235(b)(1)(A)(i), 8
U.S.C. 1225(b)(1)(A)(i) (applying expedited removal to noncitizens
arriving at ports of entry), with INA 235(b)(1)(A)(iii), 8 U.S.C.
1225(b)(1)(A)(iii) (permitting the application to designated
noncitizens).
\204\ CBP, United States Border Patrol Nationwide Encounters
Fiscal Year 1925-2020, https://www.cbp.gov/sites/default/files/assets/documents/2021-Aug/U.S.%20Border%20Patrol%20Total%20Apprehensions%20%28FY%201925%20-%20FY%202020%29%20%28508%29.pdf (last accessed May 27, 2024).
\205\ CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last
modified May 15, 2024).
\206\ OHSS analysis of data downloaded from UIP on April 2,
2024.
\207\ OHSS analysis of data downloaded from UIP on April 2,
2024.
\208\ OHSS analysis of data downloaded from UIP on April 2,
2024.
\209\ See EOIR, Adjudication Statistics: Credible Fear and
Reasonable Fear Review Decisions (Oct. 12, 2023), https://www.justice.gov/d9/pages/attachments/2018/10/26/7_credible_fear_review_and_reasonable_fear_review_decisions.pdf.
\210\ See Decl. of Matthew J. Hudak ]] 11, 17, Florida v.
Mayorkas, Case No. 3:22 cv 9962 (N.D. Fla. May 12, 2023) (Dkt. 13-
1).
\211\ Id.
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Additionally, compared to 1997, today's high levels of migration
impose a severe strain on the credible fear process. AOs and IJs must
devote substantial resources to credible fear interviews and
reviews.\212\ Despite the strengthened consequences in place at the SWB
through the Circumvention of Lawful Pathways rule and the complementary
measures that have led to record returns and removals, encounter levels
and credible fear referrals are exceeding the capacity of
[[Page 48743]]
the expedited removal process.\213\ Therefore, DHS has determined that
a different approach is needed here. The manifestation standard in the
new rule is designed to reasonably help meet these challenges during
emergency border circumstances. It is intended to help immigration
officers process noncitizens more expeditiously, while still affording
opportunities for those seeking protection to do so.
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\212\ USCIS closed or adjudicated an estimated 135,000 credible
fear interviews resulting from SWB encounters in FY 2023, up from an
average of 52,000 from 2010 to 2019 and an average of 5,400 from
2005 to 2009. OHSS analysis of March 2024 OHSS Persist Dataset and
Enforcement Lifecycle December 31, 2023. See OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (reflecting ever increasing
numbers of credible fear interview screenings at the ``SW Border
Credible Fear Screenings Referred to USCIS by citizenship'' tab);
see also 88 FR at 31314, 31326, 31381.
\213\ See Decl. of Blas Nu[ntilde]ez-Neto ]] 9-10, E. Bay
Sanctuary Covenant v. Biden, No. 18 cv 6810 (N.D. Cal. June 16,
2023) (Dkt. 176-2); Decl. of Matthew J. Hudak ]] 10-12, Florida v.
Mayorkas, No. 3:22 cv 9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1);
Decl. of Enrique M. Lucero ] 7, Innovation Law Lab v. Wolf, No. 19-
15716 (9th Cir. Mar. 3, 2020) (Dkt. 95-3).
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DHS acknowledges that, by implementing a manifestation standard in
the circumstances outlined in this rule, it is temporarily eliminating
the requirement to provide individualized advisals and ask affirmative
questions via Forms I-867A and B. DHS has determined that, in light of
the circumstances giving rise to the Proclamation and this rule, it is
critical to have a system in place that more effectively and
efficiently identifies those who may have a fear of return or indicate
an intention to seek asylum. DHS is making the decision to use the
manifestation standard consistent with the statute, as described above,
and for the reasons outlined below. At bottom, based on DHS's long
experience inspecting and interviewing individuals, DHS has determined
that a manifestation approach is the most appropriate way to address
emergency border circumstances while still sufficiently affording the
ability to seek protection. Specifically, DHS makes this determination
based on its significant experience relating to the inspection of
individuals seeking entry and admission into the United States. DHS
immigration officers have expertise observing and inspecting
individuals, as they consistently encounter and inspect large numbers
of people every day. In FY 2019, prior to COVID-19, for example, the
approximately 28,000 officers of CBP's Office of Field Operations \214\
processed more than 1.1 million people at POEs every day.\215\ USBP's
20,000 agents \216\ encountered more than 2 million people on the SWB
in FY 2023.\217\
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\214\ See CBP, About CBP: Leadership & Organization, Executive
Assistant Commissioners' Offices, https://www.cbp.gov/about/leadership-organization/executive-assistant-commissioners-offices
(last updated Jan. 30, 2024).
\215\ See CBP, On a Typical Day in 2019, CBP . . . , https://www.cbp.gov/newsroom/stats/typical-day-fy2019 (last modified May 11,
2022).
\216\ See CBP, About CBP: Leadership & Organization, Executive
Assistant Commissioners' Offices, https://www.cbp.gov/about/leadership-organization/executive-assistant-commissioners-offices
(last updated Apr. 19, 2024).
\217\ See CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last
modified May 15, 2024).
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In addition, DHS, including through its predecessor agencies, has
been implementing the expedited removal provisions since 1997. It
therefore has nearly 30 years of experience completing the Form I-867A
advisals and asking the questions on Form I-867B.\218\ Based on this
experience, it is DHS's determination that, when individuals are asked
affirmative questions, such as those on Form I-867B, individuals are
more likely to respond in the affirmative, even if they do not in fact
have a fear of return or intention of seeking asylum. Moreover, based
on this experience, DHS concludes that providing noncitizens with
specific advisals on fear claims--particularly given the emergency
context of this rule and because few if any other advisals are
provided--would be suggestive and prompt many individuals to respond in
the affirmative even if they do not have any actual fear or intention
to seek asylum. For this reason, as well, DHS has made the
determination, based on its experience and expertise inspecting
noncitizens, to temporarily adjust its approach to individualized
advisals and questions about fear.
---------------------------------------------------------------------------
\218\ See 62 FR at 10312, 10318-19.
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As part of this approach, DHS is temporarily forgoing asking the
fear questions on Form I-867B with respect to noncitizens who (1) are
described in Sec. 208.13(g), (2) are not described in section 3(b) of
the Proclamation, and (3) are processed for expedited removal. DHS
anticipates that this approach will likely lead to a higher proportion
of those referred having colorable claims for protection. Based on the
expertise of DHS in administering Form I-867B, it has determined that
affirmative questions are suggestive and account for part of the high
rates of referrals and screen-ins that do not ultimately result in a
grant of asylum or protection.\219\ DHS believes that those noncitizens
who indicate a fear of return on their own, in the absence of
suggestive questions, are more likely to be urgently seeking
protection. Indeed, it is DHS's experience and assessment that asking
questions is likely to lead individuals to answer yes, even if they do
not actually have a fear of persecution or torture.\220\ DHS
acknowledges that there are mixed opinions on this point and that this
may not be the case for all individuals, such that questioning may be
helpful in order for some individuals to feel comfortable articulating
a fear.\221\ DHS recognizes
[[Page 48744]]
that the manifestation standard, as with any other screening standard,
could result in some noncitizens with meritorious claims not being
referred to a credible fear interview. However, in light of the
emergency border circumstances facing the Departments and addressed by
the Proclamation and this rule, DHS believes the standard is
appropriate and necessary. During emergency border circumstances, it is
critical for the Departments to devote their processing and screening
resources to those urgently seeking protection while quickly removing
those who are not. DHS believes that the manifestation standard, rather
than affirmative questioning, better achieves this balance in emergency
border circumstances.
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\219\ From 2014 through 2019, of total SWB encounters with
positive fear determinations, only 18 percent of EOIR case
completions ultimately resulted in a grant of protection or relief.
OHSS Enforcement Lifecycle December 31, 2023.
\220\ This is also reflected in the behavioral science concept
of ``acquiescence,'' in which individuals tend to ``consistently
agree to questionnaire items, irrespective of item directionality.''
Shane Costello & John Roodenburg, Acquiescence Response Bias--
Yeasaying and Higher Education, 32 Australian Ed. & Dev. Pysch. 105,
105 (2015). Studies have shown that this bias is higher amongst
those with lower education levels and from countries that score
higher on scales of corruption or collectivism. See, e.g., Beatrice
Rammstedt, Daniel Danner & Michael Bosnjak, Acquiescence Response
Styles: A Multilevel Model Explaining Individual-Level and Country-
Level Differences, 107 Personality & Individual Differences 190
(2017); Seth J. Hill & Margaret E. Roberts, Acquiescence Bias
Inflates Estimates of Conspiratorial Beliefs and Political
Misperceptions, 31 Pol. Analysis 575 (2023).
\221\ DHS acknowledges that some studies of the expedited
removal process concluded that the Form I-867A information and the
Form I-867B questions are important protections, and that failure to
read the advisals led to lower referrals for credible fear
interviews. See, e.g., Allen Keller et al., Study on Asylum Seekers
in Expedited Removal as Authorized by Section 605 of the
International Religious Freedom Act of 1998: Evaluation of Credible
Fear Referral in Expedited Removal at Ports of Entry in the United
States 16-18 (2005), https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/evalCredibleFear.pdf (``USCIRF
Report'') (finding that noncitizens who are read the information in
Form I-867A are seven times more likely to be referred for a
credible fear interview and ``the likelihood of referral for a
Credible Fear interview was roughly doubled for each fear question
asked''); see also U.S. Gov't Accountability Off., Opportunities
Exist to Improve the Expedited Removal Process, No. GAO/GGD-00-176
(Sept. 2000). DHS acknowledges that one study concluded that there
was ``little evidence'' that the advisals and fear questions
prompted noncitizens to make fear claims, but rather most of the
noncitizens whose cases were studied ``spontaneously expressed fear
of returning to their home country.'' See USCIRF Report at 21. The
same study noted that three quarters of those had been read the
advisals on Form I-867A. See id. Given the small sample size (n=73)
and the report's uncertain conclusion, this report does not
alleviate CBP's long held ``concerns that [noncitizens] may be
`prompted' to express fears to officers by the I-867B fear
questions.'' Id. As in 2005, at the time of the report, DHS
continues to have such concerns, and DHS further believes that the
individualized advisals on Form I-867A raise similar ``prompting''
concerns. And, even to the extent that the study concluded
otherwise, DHS notes that, under the manifestation standard outlined
in the rule, noncitizens continue to have the ability to
affirmatively manifest a fear. Thus, considering the current
situation at the border that gives rise to the Proclamation and this
rule and the need to allocate limited resources to those urgently
seeking protection, DHS believes that, notwithstanding the study's
finding, the approach taken in this rule provides an appropriate
standard for the emergency border circumstances at issue. As noted,
CBP will be providing signs and videos advising, in a general
matter, that individuals may express a fear of return. Accordingly,
DHS has fully considered and weighed the contrary evidence and has
concluded that the rule adopts the appropriate approach to help meet
the challenge when emergency border circumstances are present.
---------------------------------------------------------------------------
Additionally, DHS is eliminating the requirement that officers and
agents read the individualized advisals on Form I-867A. DHS plans to
replace these advisals with a generalized notice--for all individuals
in CBP facilities--of the ability to raise a claim of fear of
persecution or torture. DHS is making this change based on its
experience suggesting that, like with the Form I-867B questions,
individualized Form I-867A advisals would be suggestive and would
likely lead many individuals to claim a fear of return when they
otherwise would not, particularly given the emergency context of this
rule and because there are few if any other advisals provided. Based on
its experience, DHS determines that receiving these advisals on their
own is also suggestive.\222\ Thus, in the context of inspecting
individuals who (1) are described in Sec. 208.13(g), (2) are not
described in section 3(b) of the Proclamation, and (3) are processed
for expedited removal, DHS has determined not to require the provision
of such suggestive advisals. DHS acknowledges that, like with the Form
I-867B questions, there are studies that show that such advisals make
it more likely that a noncitizen will indicate a fear of return.\223\
However, based on DHS's experience, the nature of the emergency border
circumstances facing the Departments, and the statutory requirements,
DHS has determined that the approach taken here--eliminating the
requirement to provide individualized advisals but providing signage
and videos--is appropriate.\224\
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\222\ This determination is based, in part, on CBP's experience
that the language in specific, individualized advisals often serves
as a prompt for noncitizens to express a fear while in CBP custody.
This is, in part, because CBP understands that TCOs coach
noncitizens and advise them to listen for certain words in the
language of particular advisals as a prompt to express a fear. While
it is possible that TCOs will provide noncitizens information about
how to manifest fear, even in the absence of affirmative advisals,
CBP believes that, at least at the outset of the process,
individuals without such a fear or intent to seek asylum are less
likely to remember the information a TCO provided in the absence of
individualized advisals. Additionally, CBP believes that individuals
who do have a fear of return or intend to seek asylum will generally
make such a claim even in the absence of such advisals.
\223\ See, e.g., USCIRF Report at 16-18.
\224\ DHS considered whether to provide a short, individualized
advisal to inform noncitizens of their ability to seek asylum, in
addition to these signs and videos. But DHS determined that such a
short, individualized advisal would be unlikely to convey
information more effectively than the signs and videos that CBP
already intends to use as a general notification, and that even a
short advisal would take undue time to administer. Moreover, CBP
assesses that the signs and videos providing general notification of
the ability to seek asylum are less suggestive than short,
individualized advisals would be.
---------------------------------------------------------------------------
Indeed, DHS notes that the manifestation standard has been used in
other urgent and challenging situations to identify noncitizens with
fear claims. This standard has long been used by the United States
Coast Guard, a DHS component, to determine whether an at-sea protection
screening interview is required for migrants interdicted at sea.\225\
This standard was also adopted by the United States Government to
screen family units during the pendency of the Title 42 public health
Order, when the Government was similarly dealing with urgent, exigent
circumstances--the global pandemic--while still allowing noncitizens an
opportunity to seek protection.\226\
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\225\ U.S. State Dep't, Bureau of Population, Refugees, and
Migration, Fact Sheet: U.S. Commemorations Pledges (June 24, 2013),
https://2009-2017.state.gov/j/prm/releases/factsheets/2013/211074.htm (notifying the public that U.S. Coast Guard personnel
were provided updated training ``on identifying manifestations of
fear by interdicted migrants'').
\226\ See Huisha-Huisha v. Mayorkas, 27 F.4th 718, 732-33 (D.C.
Cir. 2022); CBP, Office of Field Operations, Processing of
Noncitizens Manifesting Fear of Expulsion Under Title 42 (May 21,
2022); USBP, Guidance Regarding Family Units Moving Forward Under
Title 42 (May 21, 2022).
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DHS believes that the manifestation standard is reasonably designed
to identify meritorious claims even if a noncitizen does not expressly
articulate a fear of return. Manifestations may be verbal, non-verbal,
or physical.\227\ A manifestation of fear may present with non-verbal
or physical cues, through behaviors such as shaking, crying, fleeing,
or changes in tone of voice, or through physical injuries consistent
with abuse.\228\ An individual who may not be comfortable answering a
question about whether they have a fear of return may nevertheless
manifest that fear through an unconscious behavior, which can be
observed by the inspecting immigration officer, and the individual may
then be referred for a fear screening. DHS acknowledges that, in some
cases, these behaviors may reflect circumstances other than a fear of
return--for instance, a noncitizen who has just arrived at the border
may be physically tired, cold, hungry, and disoriented, which may
present similarly to manifestation of fear. In such cases, DHS
immigration officers will use their expertise and training to determine
whether the noncitizen is manifesting a fear. If there is any doubt,
however, immigration officers will be instructed to err on the side of
caution and refer the noncitizen to an AO for a credible fear
interview.
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\227\ See U.S. State Dep't, Bureau of Population, Refugees, and
Migration, Fact Sheet: U.S. Commemorations Pledges (June 24, 2013),
https://2009-2017.state.gov/j/prm/releases/factsheets/2013/211074.htm (noting implementation of training that ``demonstrates
different ways a migrant might express a verbal or non-verbal
manifestation of fear'').
\228\ Id.
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Moreover, DHS will provide immigration officers with information on
how to apply the standard, which will build on their existing training
and experience. Indeed, as noted above, CBP immigration officers (both
USBP agents and CBP officers) have extensive experience interviewing
and observing individuals. As a result of their experience and
training, they have skills and expertise in interacting with
individuals and observing human behavior and in determining appropriate
follow up steps with regards to any behaviors or indicators of concern.
For instance, upon encountering a group of individuals who purport to
be a family, USBP agents will observe the individuals to determine
whether they evidence typical familial behavior or whether there are
any concerns about the validity of the asserted familial relationship
or the safety of any children in the group. Agents and officers are
also trained on identifying potential trafficking victims or victims of
crimes and are trained on appropriate follow up action. Additionally,
agents and officers frequently encounter individuals who may be
vulnerable, including those in physical or medical distress or in need
of humanitarian care, as well as those who may be seeking protection in
the United States. Agents and officers can similarly use such skills
and experiences to identify any manifestations of fear. Agents and
officers will also receive information on how to apply the
manifestation standard, including that manifestation may occur
verbally, non-verbally, or physically. DHS believes that this
experience, coupled with guidance, will help agents and officers
effectively
[[Page 48745]]
identify noncitizens with potential fear or asylum claims under a
manifestation approach. Therefore, DHS believes that this rule remains
consistent with the need to ``safeguard[]'' the rights of asylum
seekers. See 62 FR at 10319. Because an immigration officer's
observation of whether a noncitizen manifests a fear--rather than a
noncitizen's answers to affirmative questions regarding asylum--will
lead to a referral to an AO for a fear screening, this standard may
result in a greater proportion of those referred to an AO being
individuals with meritorious claims.
Additionally, the manifestation standard in the rule will enable
DHS to streamline the process, allowing it to process noncitizens in a
more expeditious manner during the emergency border circumstances
identified in the Proclamation and this rule. In particular, DHS
anticipates that omitting the requirement to complete Form I-867A and
I-867B will save about 20 to 30 minutes per noncitizen, providing DHS
with--based on the number of cases in March 2024--approximately 14,000
extra personnel hours per month.\229\ This increased efficiency is
critical for processing noncitizens in an expeditious way, and thus
will better ensure that, given the immense challenges of irregular
migration at the southern border, DHS's limited resources are used most
effectively while still affording opportunities for noncitizens to seek
asylum or protection. Indeed, this is particularly critical in the
emergency border circumstances described in the Proclamation and the
rule. As discussed above, given the number of noncitizens and the time
it takes to process them during periods of heightened encounters,
expediting the process is critical for avoiding overcrowding and
ensuring safe conditions for those in custody.\230\
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\229\ At a time savings of 30 minutes per noncitizen, multiplied
by 28,466 noncitizens processed for expedited removal in March 2024,
see OHSS analysis of data downloaded from UIP on April 2, 2024, DHS
would save approximately 14,000 hours per month.
\230\ See Decl. of Matthew J. Hudak ]] 7, 17-22, Florida v.
Mayorkas, No. 3:22-cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-1).
---------------------------------------------------------------------------
For all of these reasons, DHS believes that the ``manifestation of
fear'' standard, as explained in the rule, will enable immigration
officers to effectively identify noncitizens who require credible fear
interviews while streamlining the process. During the emergency
circumstances described in the Proclamation and the rule, it is
important for immigration officers to expeditiously process and swiftly
apply consequences to noncitizens while still affording access to
protection. Here, the Departments are currently facing such emergency
circumstances, as explained above in Sections III.B.1 and 2 of this
preamble. DHS believes that the approach taken in the rule is the most
appropriate one in light of the situation at the southern border, as
explained in this rule and as discussed in the Proclamation, balancing
the need to protect those who may wish to seek protection in the United
States against an urgent need to use DHS resources effectively.
c. Raising the Standard for Protection Screening
Under this rule, if the AO determines that, in light of the
limitation on asylum eligibility under 8 CFR 208.35(a), there is not a
significant possibility that the noncitizen could establish eligibility
for asylum, see INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the AO
will enter a negative credible fear determination with respect to the
noncitizen's asylum claim. See 8 CFR 208.35(b)(1)(i). The AO will then
assess whether the noncitizen has established a reasonable probability
of persecution (meaning a reasonable probability of being persecuted
because of their race, religion, nationality, membership in a
particular social group, or political opinion) or torture, with respect
to the designated country or countries of removal identified pursuant
to section 241(b)(2) of the INA, 8 U.S.C. 1231(b)(2).\231\ See 8 CFR
208.35(b)(2)(i). Likewise, when reviewing a negative credible fear
determination, where the IJ concludes that there is not a significant
possibility that the noncitizen could establish eligibility for asylum
in light of the limitation on asylum eligibility, the IJ will assess
whether the noncitizen has established a reasonable probability of
persecution because of a protected ground or torture. See 8 CFR
1208.35(b)(2)(ii).
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\231\ As noted above, DHS is also concurrently soliciting
comment on the Application of Certain Mandatory Bars Notice of
Proposed Rulemaking, which proposes that certain mandatory bars be
considered at the screening stage under a reasonable possibility
standard.
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The Departments have some discretion to articulate the screening
standard for claims for statutory withholding of removal and protection
under the CAT. As the Departments observed previously, ``Congress
clearly expressed its intent that the `significant possibility'
standard be used to screen for asylum eligibility but did not express
any clear intent as to which standard should apply to other
applications.'' 88 FR at 11742. In addition, ``the legislative history
regarding the credible fear screening process references only asylum.''
Id. at 11743. By contrast, section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), and FARRA section 2242 are silent as to what screening
procedures are to be employed, while the INA elsewhere confers broad
discretionary authority to establish rules and procedures for
implementing those provisions, see, e.g., INA 103(a)(3), (g)(2), 8
U.S.C. 1103(a)(3), (g)(2).
Moreover, in past rules applying a ``reasonable possibility''
screening standard to claims for statutory withholding of removal or
CAT protection, the Departments have noted that such a screening
standard is used ``in other contexts where noncitizens would also be
ineligible for asylum.'' 88 FR at 11743 (citing 8 CFR 208.31(c), (e));
see also, e.g., Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, 85 FR 36264, 36270 (June 15,
2020) (referencing ``the established framework for considering whether
to grant statutory withholding of removal or CAT protection in the
reasonable fear context''). Under the Circumvention of Lawful Pathways
rule, ``[i]f a noncitizen is subject to the lawful pathways condition
on eligibility for asylum and not excepted and cannot rebut the
presumption of the condition's applicability, there would not be a
significant possibility that the noncitizen could establish eligibility
for asylum.'' 88 FR at 11742. For those noncitizens, the Departments
implemented a ``reasonable possibility of persecution or torture''
screening standard for statutory withholding of removal and protection
under the CAT. See 8 CFR 208.33(b)(2)(ii), 1208.33(b)(2)(ii). The
Departments similarly believe that those who enter across the southern
border during the emergency border circumstances identified in the
Proclamation and this rule and who are not described in section 3(b) of
the Proclamation, do not establish an enumerated exception, and are
unable to establish a significant possibility of eligibility for asylum
should be screened for protection under a higher screening standard.
The Departments' experience with the Circumvention of Lawful
Pathways rule has validated the Departments' choice to use an elevated
screening standard to narrowly focus limited resources on those who are
likely to be persecuted or tortured and to remove those who are
unlikely to establish eligibility for statutory withholding of removal
or CAT protection. Under that rule, which
[[Page 48746]]
uses a ``reasonable possibility of persecution or torture'' screening
standard for statutory withholding of removal and CAT protection
claims, the Departments have processed record numbers of noncitizens
through expedited removal and have seen a significant decrease in the
rate at which noncitizens receive positive credible fear
determinations, showing greater operational efficiencies.\232\ Between
May 12, 2023, and March 31, 2024, USCIS completed more than 152,000
credible fear interviews resulting from SWB expedited removal cases--
this is more than twice as many interviews during the span of ten and a
half months than the 75,000 interviews resulting from SWB encounters
that USCIS averaged each year from FY 2014 to FY 2019.\233\ Between May
12, 2023, and March 31, 2024, 52 percent (approximately 57,000) of
those who were subject to the rule's presumption were able to establish
a credible fear of persecution or torture under the ``reasonable
possibility'' standard,\234\ compared to an 83 percent credible fear
screen-in rate in the pre-pandemic period of 2014 to 2019.\235\ From
2014 through 2019, of SWB expedited removal cases with positive fear
determinations, less than 25 percent of EOIR case completions
ultimately resulted in a grant of protection or relief.\236\
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\232\ Decl. of Blas Nu[ntilde]ez-Neto ] 7, M.A. v. Mayorkas, No.
1:23-cv-01843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1). The screen-in rate
refers to the percentage of cases with a positive fear determination
calculated by dividing the number of cases that receive a positive
fear determination by the total number of determinations made (i.e.,
positive and negative fear determinations). See id. ] 7 n.2.
\233\ Pre-May 12, 2023, data from OHSS Enforcement Lifecycle
Dataset December 31, 2023; post-May 11, 2023, data from OHSS
analysis of data downloaded from UIP on April 2, 2024.
\234\ OHSS analysis of data downloaded from UIP on April 2,
2024. At this time, data on EOIR's grant rate under the
Circumvention of Lawful Pathways rule is not available because only
a small number of cases processed under that rule have been
completed. From May 12 through November 30, 2023 (the most recent
data for which fully linked records are available), a total of
61,000 SWB expedited removal cases have been referred to EOIR for
section 240 removal proceedings, including 1,400 with case
completions (2.2 percent). In addition, cases that are already
completed are a biased sample of all future completions because in
years since FY 2014, the median processing time for cases resulting
in relief or other protection from removal has been, on average,
about six times longer than the median processing time for cases
resulting in removal orders, so reporting on the small data set of
already completed cases would yield a relief rate that is
artificially low. OHSS analysis of OHSS Enforcement Lifecycle
Dataset December 31, 2023 and OHSS analysis of EOIR data as of
January 31, 2024.
\235\ OHSS Enforcement Lifecycle Dataset as of December 31,
2023.
\236\ OHSS Enforcement Lifecycle Dataset as of December 31,
2023.
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Screening under the ``reasonable possibility'' standard has allowed
the Departments to screen out and swiftly remove additional noncitizens
whose claims are unlikely to succeed at the merits stage. Although
fewer noncitizens are screened in under the ``reasonable possibility''
standard applied in the context of the Circumvention of Lawful Pathways
rule, that screen-in rate remains significantly higher than the grant
rate for ultimate merits adjudication for SWB expedited removal cases
that existed prior to the rule.\237\ Under the emergency border
circumstances described in the Proclamation and this rule, the
Departments' limited resources must be focused on processing those who
are most likely to be persecuted or tortured if removed, and overall
border security and immigration systems efficiencies outweigh any
challenges related to training on a new screening standard and a
possible marginal increase in interview length resulting from the
application of a new standard in screening interviews. Likewise, the
benefits of this rule, which is consistent with all statutory and
regulatory requirements and the United States' international law
obligations, outweigh any potential marginal increase in the likelihood
that a meritorious case would fail under the raised screening standard.
Swiftly removing noncitizens without meritorious claims is critical to
deterring noncitizens from seeking entry under the belief that they
will be released and able to remain in the United States for a
significant period. See, e.g., 88 FR at 31324 (discussing the success
of the CHNV parole processes as being in part due to imposing
consequences for failing to use a lawful pathway, namely swift
removal); 88 FR at 11713 (noting that in the 60 days immediately
following DHS's resumption of routine repatriation flights to Guatemala
and Honduras, average daily encounters fell by 38 percent for Guatemala
and 42 percent for Honduras).\238\
---------------------------------------------------------------------------
\237\ DHS OHSS Enforcement Lifecycle Dataset as of December 31,
2023.
\238\ See also, e.g., Muzaffar Chishti et al., At the Breaking
Point: Rethinking the U.S. Immigration Court System, Migration Pol'y
Inst., at 11 (2023), https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf (``In the case
of noncitizens crossing or arriving at the U.S.-Mexico border
without authorization to enter, years-long delays create incentives
to file frivolous asylum claims that further perpetuate delays for
those eligible for protection, undermining the integrity of the
asylum system and border enforcement.''); Doris Meissner, Faye
Hipsman, & T. Alexander Aleinikoff, The U.S. Asylum System in
Crisis: Charting a Way Forward, Migration Pol'y Inst., at 9 (2018),
https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf (``Incentives to misuse the
asylum system may also be reemerging. For example, over the past
five years, the number of employment authorization documents (EADs)
approved for individuals with pending asylum cases that have passed
the 180-day mark increased from 55,000 in FY 2012 to 270,000 in FY
2016, and further to 278,000 in just the first six months of FY
2017. This high and growing level of EAD grants may suggest that, as
processing times have grown, so too have incentives to file claims
as a means of obtaining work authorization and protection from
deportation, without a sound underlying claim to humanitarian
protection.'').
---------------------------------------------------------------------------
To allow for swift removals in the case of those noncitizens who
the Departments are confident are unlikely to meet their ultimate
burden to establish eligibility for statutory withholding of removal or
protection under the CAT, the Departments have decided to raise the
screening standard to ``reasonable probability of persecution or
torture'' during the emergency border circumstances described in the
Proclamation and this rule. The Departments define this ``reasonable
probability'' standard as ``substantially more than a reasonable
possibility, but somewhat less than more likely than not.'' 8 CFR
208.35(b)(2)(i), 1208.35(b)(2)(ii). Under this standard, a noncitizen
would be screened in if they provide credible testimony \239\ and set
forth a credible claim with sufficient specificity for an AO or IJ to
be persuaded that there is a reasonable probability that the noncitizen
would be persecuted or tortured so as to qualify for statutory
withholding of removal or CAT protection in an ultimate merits
adjudication.
---------------------------------------------------------------------------
\239\ Credible testimony alone is sufficient in a credible fear
screening, and AOs are trained to ask questions to elicit testimony
to assist the noncitizen in meeting their burden with testimony
alone. Although testimony alone could certainly meet the burden, it
is not required that the burden be met solely through testimony. And
even though corroborating evidence is not required, AOs will
consider any additional evidence the noncitizen presents.
Additionally, AOs are trained to conduct interviews of individuals
with persecution or non-persecution-related injuries, traumas, or
conditions that may impact their ability to provide testimony for
themselves.
---------------------------------------------------------------------------
The Departments view the difference between the ``reasonable
possibility'' standard and the new ``reasonable probability'' standard
as being that the new standard requires a greater specificity of the
claim in the noncitizen's testimony before the AO or the IJ. In
particular, although claims based on general fears of return may at
times be found to meet the ``reasonable possibility'' standard where
evidence in the record of country conditions
[[Page 48747]]
indicates instances of persecution or torture within the country, such
claims are less likely to be sufficient under the ``reasonable
probability'' standard when the noncitizen cannot provide greater
detail in their statements and information as to the basis for their
individual claim.
The Departments frequently see such general claims of fear that
lack specificity at both the screening and merits stage. However,
generalized fear of persecution is ultimately not sufficient to
establish a claim. See Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir.
2023) (``[A]dverse country conditions are not sufficient evidence of
past persecution, for the obvious reason that `[t]o establish past
persecution, an applicant must show that he as individually targeted on
account of a protected ground rather than simply the victim of
generalized violence.' '' (quoting Hussain v. Rosen, 985 F.3d 634, 646
(9th Cir. 2012))); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996)
(stating that to establish past persecution, ``[i]t is not sufficient
to show [the applicant] was merely subject to the general dangers
attending a civil war or domestic unrest''); Al Fara v. Gonzales, 404
F.3d 733, 740 (3d Cir. 2005) (``[G]enerally harsh conditions shared by
many other persons do not amount to persecution. . . . [H]arm resulting
from country-wide civil strife is not persecution on account of an
enumerated statutory factor.'' (quotation marks omitted)); see also
Debab v. INS, 163 F.3d 21, 27 (1st Cir. 1998) (citing cases).
Moreover, to establish ultimate eligibility for CAT protection, the
noncitizen must demonstrate an individualized risk of torture--not a
general possibility of it. See Escobar-Hernandez v. Barr, 940 F.3d
1358, 1362 (10th Cir. 2019) (``[P]ervasive violence in an applicant's
country generally is insufficient to demonstrate the applicant is more
likely than not to be tortured upon returning there.''); Bernard v.
Sessions, 881 F.3d 1042, 1047 (7th Cir. 2018) (``Evidence of
generalized violence is not enough; the IJ must conclude that there is
a substantial risk that the petitioner will be targeted
specifically.''); Lorzano-Zuniga v. Lynch, 832 F.3d 822, 830-31 (7th
Cir. 2016) (``[G]eneralized violence or danger within a country is not
sufficient to make a claim that it is more likely than not that a
petitioner would be tortured upon return to his home country.'');
Alvizures-Gomes v. Lynch, 830 F.3d 49, 55 (1st Cir. 2016) (country
reports demonstrating overall corruption and ineffectiveness of
Guatemalan authorities ``do not relieve [the applicant] of the
obligation to point to specific evidence indicating that he,
personally, faces a risk of torture because of these alleged
shortcomings''); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010) (``Petitioners' generalized evidence of violence and crime in
Mexico is not particular to Petitioners and is insufficient to meet
th[e] standard [for eligibility for CAT protection].'').
Under the ``reasonable possibility'' standard, a noncitizen
presenting a claim based on general civil strife is sometimes found to
pass the screening stage even where they provide only general testimony
about their fear of harm. For example, a noncitizen may meet the
``reasonable possibility'' standard where he expresses a fear of being
killed by the government upon his return to his native country, United
States Government reports indicate the country may engage in human
rights abuses, and the noncitizen has been involved in anti-government
political activism for years, even absent specific information as to an
individualized threat against the noncitizen or any other individuals
who have been threatened or harmed. But to meet the ``reasonable
probability'' standard, the noncitizen would either need to explain
with some specificity why he thinks he, in particular, is likely to be
harmed, or the record would have to reflect some specific information
regarding the treatment of anti-government political activists
similarly situated to the applicant. Such claims are assessed on a
case-by-case basis. As an example, however, were the noncitizen to
credibly state that he knew, and to provide details about, people who
are similarly situated to him who have been killed, harmed, or credibly
threatened, that testimony may be sufficient to meet the ``reasonable
probability'' standard because it provides more specificity as to why
the noncitizen believes he would be harmed. The Departments believe
that the ``reasonable probability'' standard, by requiring additional
specificity, will better identify claims that are likely to be
meritorious in a full adjudication while screening out those whose
claims are not likely to prevail.\240\
---------------------------------------------------------------------------
\240\ Although the Departments believe the standard will better
identify claims that are likely to be meritorious, for now the
Departments do not seek to apply the ``reasonable probability''
standard outside the context of this rule--that is, to those who do
not establish a significant possibility of eligibility for asylum
because of the limitation on asylum eligibility or, if the
limitation is rendered inoperative by court order, to those who are
ineligible for asylum under the Circumvention of Lawful Pathways
rule, see 8 CFR 208.35(b)(2)(i) and (3), 1208.35(b)(2)(iii) and
(4)--because in this rule the Departments are addressing emergency
border circumstances rather than regulating to change the status
quo. The Departments may consider such changes in future rulemaking.
---------------------------------------------------------------------------
The Departments are confident that AOs and IJs can apply this
heightened standard effectively to identify those who are likely to
have viable claims on the merits while mitigating the possibility that
those with a viable claim would be screened out. The level of
specificity and certainty that the ``reasonable probability'' standard
requires remains lower than the ultimate merits standard, and AOs and
IJs have the training and experience necessary to elicit the
information required to determine whether a case is sufficiently
specific to meet the ``reasonable probability'' standard.\241\ This is
particularly the case because, in implementing such training, USCIS
expects to adapt existing training, including on the ultimate merits
standard, to prepare AOs on the ``reasonable probability'' screening
standard, since the way evidence is evaluated remains the same, save
for the degree of specificity required. AOs especially have significant
training in non-adversarial interview techniques and are required to
elicit testimony from the noncitizen--in effect, to help the noncitizen
meet their burden through testimony alone.\242\ If upon such
questioning a noncitizen is unable to provide specific facts that lead
the AO or IJ to believe that the noncitizen would be able to meet their
burden with more opportunity to prepare, such claims are unlikely to
prevail at the merits stage.
---------------------------------------------------------------------------
\241\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Dec. 20, 2019); EOIR, Fact Sheet: Immigration
Judge Training (June 2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline.
\242\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Introduction to the Non-Adversarial Interview (Dec. 20, 2019). As
described in a previous rule, AOs have experience in ``country
conditions and legal issues, as well as nonadversarial interviewing
techniques,'' and they have ``ready access to country conditions
experts.'' Procedures for Credible Fear Screening and Consideration
of Asylum, Withholding of Removal, and CAT Protection Claims by
Asylum Officers, 86 FR 46906, 46918 (Aug. 20, 2021).
---------------------------------------------------------------------------
Moreover, this heightened screening standard targets information--
specificity based on the noncitizen's own knowledge--that should
generally be available at the screening stage. A noncitizen at the
screening stage generally would have information regarding their fear
of harm, such as whom they are afraid of and why, and an AO will elicit
information regarding the claim that either is sufficiently specific to
satisfy the heightened screening standard or is not. Credible
[[Page 48748]]
testimony alone can satisfy the noncitizen's burden and is sometimes
the only available evidence of persecution or torture. See, e.g.,
Matter of Mogharrabi, 19 I&N Dec. 439, 443 (BIA 1987). In most cases,
noncitizens would have such information at the screening stage, and the
Departments expect--and logic suggests--that such information could be
shared through testimony. Instances of past harm or those that inform a
future fear of return that caused a noncitizen to seek protection
generally occur before entry and would not be expected to develop after
the fact of entry or after the screening stage. Hence, the Departments
believe that this standard will screen out claims that are likely to
fail at the merits stage and poses only a minimal risk of screening out
claims that could ultimately succeed. For example, if a noncitizen does
not know who harmed or would harm them or why, in the Departments'
experience, AOs and IJs will often be able to determine--depending on
the facts of the case--that it is unlikely that the noncitizen will be
able to provide answers to those critical questions at the merits
stage.
In addition, AOs and IJs also receive training in, and have
substantial experience weighing, country conditions, which will further
help them assess whether and under what circumstances the lack of
specificity in a noncitizen's testimony indicates that they have little
prospect of meeting their ultimate burden.\243\ For example, it may be
the case that where a noncitizen expresses only generalized fear of
harm based on their ethnicity, but country conditions confirm serious,
ongoing harm in the form of widespread, systematic persecutory acts by
government institutions targeting individuals who are similarly
situated to the noncitizen, adjudicators will rely on that information
to deem the ``reasonable probability'' standard satisfied.
---------------------------------------------------------------------------
\243\ USCIS, RAIO Directorate--Officer Training: Decision Making
(Dec. 20, 2019); USCIS, RAIO Directorate--Officer Training:
Interviewing--Eliciting Testimony (Dec. 20, 2019); USCIS, RAIO
Directorate--Officer Training: Interviewing--Introduction to the
Non-Adversarial Interview (Dec. 20, 2019); 86 FR at 46918. IJs
``receive extensive training upon entry on duty, annual training,
and periodic training on specialized topics as necessary.''
Procedures for Credible Fear Screening and Consideration of Asylum,
Withholding of Removal, and CAT Protection Claims by Asylum
Officers, 87 FR 18078, 18170 (Mar. 29, 2022); see also EOIR, Fact
Sheet: Immigration Judge Training (June 2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline. Moreover, IJs are
required to maintain professional competence in the law, U.S. Dep't
of Justice, Ethics and Professionalism Guide for Immigration Judges
Sec. IV (Jan. 26, 2011), https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf, which necessarily includes
the elements required to establish eligibility for relief or
entitlement to protection from removal, id. Consistent with their
role in adjudicating asylum and related protection applications, IJs
have long been able to take administrative notice of commonly known
facts, including country conditions evidence. See 8 CFR 208.12
(1997) (stating that the adjudicator may rely on information from a
variety of sources ranging from the Department of State to credible
international organizations or academic institutions); 8 CFR
208.1(a) (1997) (stating this part shall apply to all applicants for
asylum whether before an AO or an IJ). Federal Government country
conditions reports, such as the U.S. Department of State country
conditions reports, are longstanding, credible sources of
information to which IJs often look. See, e.g., Sowe v. Mukasey, 538
F.3d 1281, 1285 (9th Cir. 2008) (``U.S. Department of State country
reports are the most appropriate and perhaps the best resource for
information on political situations in foreign nations.'' (quotation
marks omitted)); Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d
315, 341 (2d Cir. 2006) (Department of State country reports are
``usually the best available source of information on country
conditions'' (quotation marks omitted)).
---------------------------------------------------------------------------
AOs, supervisory AOs, and IJs receive training and have experience
applying asylum, statutory withholding of removal, and CAT protection
screening standards and in applying and reviewing decisions related to
the ultimate asylum (for USCIS and EOIR) and statutory withholding of
removal and CAT protection (for EOIR) merits standards, so they are
well-suited to be able to identify in a screening whether the
information the noncitizen has provided is sufficiently specific to
lead them to believe that the noncitizen may be able to establish
eligibility at the merits stage.\244\ Moreover, all credible fear
determinations must be concurred upon by a supervisory AO before they
become final to ensure quality and consistency and will be subject to
de novo IJ review if requested by the noncitizen. See 8 CFR
235.3(b)(7), 235.15(b)(2)(i)(B), 1208.35(b).
---------------------------------------------------------------------------
\244\ See USCIS, RAIO Directorate--Officer Training: Note Taking
(Feb. 12, 2024); USCIS, RAIO Directorate--Officer Training:
Interviewing--Survivors of Torture and Other Severe Trauma (Nov. 2,
2023); USCIS, RAIO Directorate--Officer Training: Children's Claims
(Dec. 20, 2020); USCIS, RAIO Directorate--Officer Training:
Interviewing--Introduction to the Non-Adversarial Interview (Dec.
20, 2019); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Dec. 20, 2019); USCIS, RAIO Directorate--
Officer Training: Cross-Cultural Communication and Other Factors
That May Impede Communication at an Interview (Dec. 20, 2019);
USCIS, RAIO Directorate--Officer Training: Detecting Possible
Victims of Trafficking (Dec. 20, 2019); USCIS, RAIO Directorate--
Officer Training: Interviewing--Working With an Interpreter (Dec.
20, 2019); EOIR, Fact Sheet: Immigration Judge Training (June 2022),
https://www.justice.gov/eoir/page/file/1513996/dl?inline.
---------------------------------------------------------------------------
Although AOs, supervisory AOs, and IJs will have to be trained on
applying the new ``reasonable probability of persecution or torture''
standard, the standard as explained above is not a significant
departure from the types of analyses AOs, supervisory AOs, and IJs
conduct on a daily basis. Rather, it is a matter of degree--to meet the
``reasonable probability of persecution or torture'' standard, the
noncitizen must present more specificity than is required to meet the
``reasonable possibility of persecution or torture'' standard, but not
so much as to establish ultimate eligibility for protection. Indeed, to
meet the ultimate standard, noncitizens may still be required to
provide more evidence--whether testimonial or documentary.
The Departments do not believe that applying the ``reasonable
probability of persecution or torture'' standard will increase the time
required for credible fear interviews by any great margin. AOs
generally ask similar questions to elicit information from noncitizens
during screening interviews regardless of the standard they will apply
to the information elicited. The difference will be whether the
information provided as a result of those questions reaches the
required level of specificity. That said, there may be cases where an
AO believes that the noncitizen may be able to meet the ``reasonable
probability of persecution or torture'' standard after answering a few
additional questions. But even if there is a marginal increase in the
length of some interviews, the Departments believe that the interest in
swift removal of those unlikely to establish eligibility for protection
during emergency border circumstances outweighs the risk of some
interviews taking longer.\245\ This is because a higher standard will
be more likely to create a deterrent: Those less likely to establish
eligibility for statutory withholding of removal or CAT protection will
be swiftly removed rather than being released and waiting years for a
hearing, or in some cases, absconding and remaining in the United
States unlawfully. And this deterrent effect could lead to lower
encounter levels as noncitizens and smugglers realize that the process
is functioning
[[Page 48749]]
more effectively.\246\ Screening out those unlikely to establish
eligibility for protection has the added benefit of saving United
States Government resources overall because fewer noncitizens who are
unlikely to establish eligibility for protection will be placed into
section 240 removal proceedings before EOIR, which as of the end of
December 2023 had a backlog of more than 2.7 million cases.\247\
---------------------------------------------------------------------------
\245\ In Section III.B.3.b of this preamble, the Departments
conclude that there is a need to streamline immigration officers'
processing of noncitizens through expedited removal while the
Proclamation's suspension and limitation on entry is in effect. That
reasoning is not inconsistent with the reasoning here. Because AOs
interview only a subset of noncitizens processed through expedited
removal, the Departments believe at most a portion of those
noncitizens' credible fear interviews may be longer, and, as noted,
any marginal increase in the time it takes to conduct some
interviews is outweighed by improving deterrence and avoiding
erroneous screen-ins, which result in noncitizens being added to the
backlog of immigration cases and being released into and remaining
in the United States for a significant period of time.
\246\ See Muzaffar Chishti et al., At the Breaking Point:
Rethinking the U.S. Immigration Court System, Migration Pol'y Inst.,
at 11 (2023), https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf (``In the case of
noncitizens crossing or arriving at the U.S.-Mexico border without
authorization to enter, years-long delays create incentives to file
frivolous asylum claims that further perpetuate delays for those
eligible for protection, undermining the integrity of the asylum
system and border enforcement.''); Doris Meissner, Faye Hipsman, &
T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting
a Way Forward, Migration Pol'y Inst., at 9 (2018), https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf (``Incentives to misuse the asylum
system may also be reemerging. For example, over the past five
years, the number of employment authorization documents (EADs)
approved for individuals with pending asylum cases that have passed
the 180-day mark increased from 55,000 in FY 2012 to 270,000 in FY
2016, and further to 278,000 in just the first six months of FY
2017. This high and growing level of EAD grants may suggest that, as
processing times have grown, so too have incentives to file claims
as a means of obtaining work authorization and protection from
deportation, without a sound underlying claim to humanitarian
protection.'').
\247\ See EOIR, Adjudication Statistics: Pending Cases, New
Cases, and Total Completions (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline.
---------------------------------------------------------------------------
In developing this rule, the Departments considered the possibility
that the application of different screening standards to ``the same or
a closely related set of facts'' might result in inefficiencies. See 87
FR at 18091; see also 88 FR at 11746. The Departments note, however,
that under this rule, that is unlikely to be the case. The facts
relevant to whether a noncitizen is subject to the rule's limitation on
asylum eligibility will only rarely be relevant to the inquiry into
whether the noncitizen has a fear of persecution or torture. For
example, whether the noncitizen faced an acute medical emergency that
excepts them from the rule under 8 CFR 208.35(a)(2)(i)(A) or
1208.35(a)(2)(i)(A) will not likely be relevant to whether the
noncitizen has a fear of persecution or torture in their designated
country of removal and so only the ``reasonable probability'' standard
will be applied to the facts relevant to their persecution or torture
claim. And where a noncitizen meets such an exception, they will
continue to be eligible to pursue asylum in addition to any claim of
persecution or torture, and those claims will all be considered only
under the ``significant possibility'' standard. Similarly, whether a
noncitizen faced an imminent and extreme threat to life and safety that
excepts them from the rule under 8 CFR 208.35(a)(2)(i)(B) or
1208.35(a)(2)(i)(B) will involve an evaluation of the discrete set of
circumstances at the time of the noncitizen's arrival at the border,
and will not likely be relevant to whether the noncitizen has a fear of
persecution or torture in their designated country of removal. The
question of an imminent threat relates to the situation immediately
prior to the noncitizen's entry into the United States, rather than
necessarily any fear of persecution or torture. Thus, the Departments
do not believe there will generally be a need to apply multiple
standards to the same set of facts.
d. The Scope of This Rule
The Departments have decided to tie the application of this IFR,
including the limitation on asylum eligibility, to emergency border
circumstances. The suspension and limitation on entry applies beginning
at 12:01 a.m. eastern time on June 5, 2024. The suspension and
limitation on entry will be discontinued 14 calendar days after the
Secretary makes a factual determination that there has been a 7-
consecutive-calendar-day average of less than 1,500 encounters, as
defined by the Proclamation, but excluding noncitizens determined to be
inadmissible at a SWB POE. If encounters increase again (including
during the 14-calendar-day period), the suspension and limitation will
apply again (or continue to apply, as applicable) after the Secretary
makes a factual determination that there has been a 7-consecutive-
calendar-day average of more than 2,500 encounters, as defined by the
Proclamation, but excluding noncitizens determined to be inadmissible
at a SWB POE. These thresholds are consistent with those set forth in
sections 2(a) and (b) of the Proclamation.\248\ In order to maximize
the consequences for those who cross unlawfully or without
authorization, DHS endeavors to deliver consequences swiftly to the
highest proportion of individuals who fail to establish a legal basis
to remain the United States. This includes, subject to available
resources, referring the maximum number of eligible individuals
possible into expedited removal to quickly adjudicate their claims.
However, as described below, DHS has been limited in its ability to do
so as a result of capacity and resource constraints. The number of
people who can be processed for expedited removal is dependent on the
Departments' resources and can be impacted by several factors,
including limited detention beds and holding capacity; \249\ the
presence or absence of sufficient AOs to conduct credible fear
interviews for all those who claim a fear or indicate an intent to
apply for asylum; the availability of IJs to review negative fear
findings; and the ability to repatriate individuals ordered removed in
a timely manner--an option that is not always available because, among
other things, it relies on independent decisions made by foreign
governments.
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\248\ The 14-day waiting period prior to a discontinuation
provides time for the Departments to complete processing of
noncitizens encountered during emergency border circumstances and to
confirm that a downward trend in encounters is sustained. The
absence of a similar waiting period prior to a reactivation reflects
the operational exigencies in a circumstance in which there has been
a 7-consecutive-calendar-day average of more than 2,500 encounters
and is necessary to avoid a surge to the border in advance of a
reactivation. As the Departments have explained, the preliminary
data pulled from DHS's operational systems have not undergone a full
validation process. See supra note 5. But a rapid policy and
operational response to emergency border circumstances requires
relying on this more recent data when making factual determinations
consistent with sections 2(a) and 2(b) of the Proclamation. Hence,
the data used to make these factual determinations may differ
somewhat from the more definitive numbers that ultimately emerge
from DHS's full validation process.
\249\ See, e.g., Consolidated Appropriations Act, 2024, Public
Law 118-47, 138 Stat. 460, 598 (2024). The joint explanatory
statement states that the bill provides ``$5,082,218,000 for
Enforcement and Removal Operations (ERO)'' and ``$355,700,000 for
41,500 beds for the full fiscal year and inflationary adjustments to
support current detention facility operations.'' 170 Cong. Rec.
H1807, H1812 (daily ed. Mar. 22, 2024).
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Sustained high encounter rates threaten to overwhelm the
Departments' ability to effectively process, detain, and remove the
migrants encountered, as appropriate, in a timely manner. See 88 FR at
31316. The President has determined that the suspension and limitation
on entry is necessary to manage encounter levels. The Departments have
determined that emergency border circumstances described in the
Proclamation and this rule necessitate this rule's limitation on asylum
eligibility and changes to the referral process and screening standard
because, in such circumstances, DHS lacks the capacity to deliver
timely consequences, and absent this rule, must resort to large-scale
releases of noncitizens pending section 240 removal proceedings, which
leads to significant harms and threatens to incentivize further
migration by individuals who recognize the
[[Page 48750]]
limitations on the ability to deliver timely consequences.\250\
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\250\ See Section III.B.2 of this preamble. The Departments
acknowledge that, despite the protections preserved by the rule and
the available exceptions, the provisions adopted by this rule will
result in the denial of some asylum claims that otherwise may have
been granted and, as with all screening mechanisms, there is some
risk that a case that might otherwise warrant protection might not
proceed to a merits adjudication. However, in light of the emergency
circumstances facing the Departments and addressed in the
Proclamation and this rule, the Departments believe these measures
are appropriate and necessary. And given the Departments' experience
with asylum and protection screenings and adjudications, the
Departments believe the rule's provisions will produce accurate
outcomes, although the Departments believe the rule continues to be
justified even if that expectation turns out to be misplaced in
close cases.
---------------------------------------------------------------------------
DHS simply lacks sufficient resources to detain and conduct
credible fear interviews for the number of noncitizens arriving each
day who claim a fear of return when processed through expedited
removal. This mismatch in available resources and encounters creates
stress on the border and immigration systems and forces DHS to rely on
processing pathways outside of expedited removal--limiting DHS's
ability to swiftly deliver consequences on individuals who do not have
a legal basis to remain in the United States.\251\ The Departments have
determined that the 1,500-encounter threshold is a reasonable proxy for
when the border security and immigration system is no longer over
capacity and the measures adopted in this rule are not necessary to
deal with such circumstances.
---------------------------------------------------------------------------
\251\ See CBP, Custody and Transfer Statistics (May 15, 2024),
https://www.cbp.gov/newsroom/stats/custody-and-transfer-statistics
(detailing the number of individuals processed for expedited removal
compared to another processing disposition, including section 240
proceedings).
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At the outset, it is important to put the threshold in context.
From FY 2000 through FY 2008, USBP encounters between POEs averaged
approximately 3,000 per day, routinely including monthly averages over
3,500 for a few months most springs.\252\ The vast majority (94
percent) of individuals encountered by USBP during this period were
Mexican nationals, and very few of those who were processed for
expedited removal claimed a fear of return or an intent to seek asylum
during that process--fewer than one percent of all CBP SWB
encounters.\253\ As a result, DHS and its predecessor agency were able
to swiftly remove or voluntarily return the vast majority of those
encountered at the SWB using comparatively few resources. See 88 FR at
11708, 11716.
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\252\ OHSS analysis of March 2024 OHSS Persist Dataset. Total
CBP encounters (at and between POEs) also averaged approximately
3,000 per day from FY 2004 to FY 2008; data on encounters at POEs
are not available prior to FY 2004.
\253\ OHSS analysis of March 2024 OHSS Persist Dataset.
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From FY 2009 through FY 2020, USBP encounters between POEs declined
substantially from these historical highs, averaging approximately
1,200 per day, and daily USBP encounters between the POEs averaged less
than 3,500 per day in all but one month of that 12-year period--May
2019 when USBP encounters peaked at 4,300 during that year's
surge.\254\ Within that 12-year stretch, there were only four months
(from March through June 2019) with average encounters between the POEs
even above 2,500 per day.\255\ In fact, for the 15 years prior to March
2021, DHS did not experience a single month with more than 5,000 total
average daily encounters.\256\ However, during that time, the
demographics of these encounters changed significantly, with nationals
from the northern Central American countries steadily increasing as a
proportion of encounters, becoming a majority of individuals
encountered between POEs for the first time in history in 2017--a trend
that continued until 2020. Starting in 2014, families and UCs increased
as a proportion of USBP encounters as well, reaching a high of 65
percent of encounters in 2019.\257\ Finally, and as described in
greater detail in Section III.B.1 of this preamble, from 2021 to 2023,
there was a historic surge in migration from other countries in the
Western Hemisphere and from Eastern Hemisphere countries, which, for
the first time ever, accounted for more than half of the encounters at
the border in 2023--with Mexican nationals accounting for just 29
percent of encounters, an all-time low.\258\
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\254\ OHSS analysis of March 2024 OHSS Persist Dataset. Total
CBP encounters (at and between POEs) averaged approximately 1,500
per day during this period. For most of this period (from FY 2009
through FY 2018), the share of encounters processed for expedited
removal and the share of those processed through expedited removal
making fear claims generally increased, so that during FY 2018, 41
percent of SWB encounters were processed for expedited removal and
45 percent of those processed for expedited removal made fear
claims, yielding an all-time high of 18 percent of all encounters
making fear claims. OHSS analysis of March 2024 OHSS Persist
Dataset. Data on the exact number of SWB encounters processed for
expedited removal who made fear claims is not available for years
prior to FY 2013, but OHSS estimates that the vast majority (84
percent) of all fear claims made in prior years were made by SWB
encounters. Even if 100 percent of fear claims made before FY 2013
were made by SWB encounters, FY 2018 would represent the all-time
highest percentage of all encounters making fear claims.
\255\ OHSS analysis of March 2024 OHSS Persist Dataset. Total
CBP encounters (at and between POEs) also averaged approximately
2,700 per day and 2,600 per day in February and July 2019,
respectively.
\256\ OHSS analysis of March 2024 OHSS Persist Dataset.
\257\ OHSS analysis of March 2024 OHSS Persist Dataset. Northern
Central Americans accounted for 54 percent of encounters between
POEs in 2017. Northern Central Americans' proportion of encounters
between POEs continued to increase until it reached 71 percent of
USBP encounters in 2019 but dropped at the onset of the pandemic, in
2020, to less than 26 percent. See also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border Encounters by
Citizenship'').
\258\ OHSS analysis of OIS Yearbook of Immigration Statistics
1980-1999 and OHSS analysis of March 2024 OHSS Persist Dataset. See
also OHSS, Immigration Enforcement and Legal Processes Monthly
Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW
Border Encounters by Citizenship''). Nationality breakouts of border
encounters are not available prior to 1980, but Mexicans accounted
for 97 percent of encounters for all of 1980 through 1999 and never
accounted for less than 96 percent in any fiscal year during that
period.
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The change in the nationalities and demographics being encountered
at the border has coincided with a dramatic increase in the number of
individuals who claim fear when they are processed at the border.
Between 2005 and 2015, the proportion of noncitizens encountered by CBP
and processed for expedited removal who claimed fear ranged from 5
percent at the low end to 26 percent at the high end.\259\ Driven by
the changing demographics at the border, both the percentage of those
processed for expedited removal as well as the percentage of those
processed for expedited removal who claimed a fear of return or an
intent to seek asylum generally increased during this time frame.\260\
This, in turn, has resulted in a steep increase in the number of
credible fear interviews that USCIS is required to conduct.\261\
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\259\ OHSS analysis of March 2024 OHSS Persist Dataset.
\260\ The percentage of those processed via expedited removal
fell again in 2019 due to resource constraints. OHSS analysis of
March 2024 OHSS Persist Dataset.
\261\ The share of noncitizens encountered by CBP at and between
POEs who were processed through expedited removal increased from 6
percent in FY 2005 to between 39 and 47 percent each year from FY
2012 to FY 2018, but then dropped in FY 2019 because DHS was unable
to scale up expedited removal processing in proportion to the
substantial increase in USBP encounters. OHSS analysis of March 2024
OHSS Persist Dataset.
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In 2023, a record 59 percent of encounters at and between POEs on
the SWB that were processed for expedited removal resulted in fear
claims. From 2016 to 2023, the percentage of SWB encounters processed
for expedited removal who claimed a fear dipped below 41 percent just
once, in FY 2020, the first year of the COVID-19
[[Page 48751]]
pandemic.\262\ The global COVID-19 pandemic briefly interrupted this
trend, which has continued after the lifting of the Title 42 public
health Order in May 2023. Between May 12, 2023, and the end of March
2024, DHS processed a record number of individuals through expedited
removal as it sought to maximize the consequences at the border, and 54
percent of noncitizens processed for expedited removal indicated a fear
of persecution or intent to seek asylum.\263\ As part of DHS's
comprehensive effort to impose strengthened consequences at the border
after the lifting of the Title 42 public health Order, USCIS reassigned
a significant number of AOs to conduct credible fear interviews, which
resulted in USCIS completing a record number of such interviews. In
fact, USCIS conducted more interviews from SWB encounters during the
span of ten and a half months after the lifting of the Title 42 public
health Order than in any full fiscal year prior to 2023, and twice as
many as the annual average from FY 2010 to FY 2019.\264\
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\262\ OHSS analysis of March 2024 OHSS Persist Dataset.
\263\ OHSS analysis of data downloaded from CBP UIP on April 2,
2024.
\264\ OHSS analysis of data downloaded from CBP UIP on April 2,
2024. Data on the exact number of SWB encounters processed for
expedited removal who made fear claims is only available since FY
2013; for the years prior to FY 2013 there was no full fiscal year
in which the total number of USCIS fear claims was equal to the
number of fear claims completed for SWB encounters processed for
expedited removal between May 12, 2023, and March 31, 2024.
---------------------------------------------------------------------------
As DHS transitioned from the enforcement of the Title 42 public
health Order at the border to full use of its title 8 authorities after
May 11, 2023, DHS's capacity constraints--and the impact of those
constraints on DHS's ability to impose consequences on noncitizens who
cross unlawfully or without authorization--have come increasingly into
focus. Given these real resource constraints, DHS has had to make hard
choices about whom it can prioritize for detention or refer into
expedited removal.\265\ As a result of a lack of sufficient holding
spaces, detention beds, and AOs, DHS has only been able to refer
certain noncitizens into expedited removal--which, as detailed above,
is the most efficient tool available under title 8 authorities to
impose swift consequences for irregular migration. This means that DHS
cannot impose consequences swiftly or predictably on most people
encountered at the border, feeding the narrative pushed by smugglers
that irregular migrants will be able to stay in the United States.\266\
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\265\ ICE, Fiscal Year 2023 ICE Annual Report 17-18 (Dec. 29,
2023), https://www.ice.gov/doclib/eoy/iceAnnualReportFY2023.pdf.
\266\ March 2024 OHSS Persist Dataset.
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The expedited removal process requires the outlay of significant
Government resources. When a noncitizen in expedited removal indicates
an intention to seek asylum or a fear of persecution, rather than being
swiftly removed, they are referred to an AO for a credible fear
interview and may seek review of any negative screening by an IJ--all
of which takes time and Government resources. As described in further
detail above, DHS has made significant process enhancements to reduce
the overall time it takes for individuals to proceed through this
process. However, the availability of sufficient numbers of AOs to
conduct credible fear interviews is critical to DHS's ability to
quickly adjudicate fear claims and deliver consequences to those who do
not have a credible fear of persecution or torture.
As described above, Congress has failed to provide the additional
resources requested for USCIS that would have increased the number of
AOs that are available to conduct credible fear interviews for SWB
cases. This reality, combined with increases in encounters at the
border, and increases in the proportion of noncitizens processed for
expedited removal who claim fear of return, means that DHS cannot
impose consequences swiftly or predictably on most people whom DHS
encounters. Due to its resource constraints, the majority of
individuals USBP encountered since May 11, 2023, were ultimately placed
in section 240 removal proceedings,\267\ undercutting the effectiveness
of the previous measures that have been implemented. This reality
contributes to the vicious cycle described above in which increasing
numbers of releases lead to increased migration, fueled by the
narrative, pushed by smugglers, that migrants who are encountered at
the border will be allowed to remain and work in the United States for
long periods of time.
---------------------------------------------------------------------------
\267\ OHSS analysis of March 2024 OHSS Persist Dataset.
---------------------------------------------------------------------------
As a result of the changes to the nationalities and demographics
being encountered at the border, and the associated increase in the
rate of claiming fear by individuals encountered, the amount of
resources required to deliver consequences quickly through referrals
into expedited removal for the vast majority of individuals who claimed
a fear in 2000 (when DHS's predecessor agency averaged 3,000 to 7,000
daily encounters between POEs) or in 2010 (when DHS averaged 1,000 to
2,000 daily encounters between POEs) was far lower than the amount of
resources required to manage the same number of encounters today.\268\
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\268\ March 2024 OHSS Persist Dataset. The most notable change
has been the rising share of non-Mexican nationals as a share of
encounters, with Mexican nationals accounting for 98 percent of USBP
encounters in FY 2000 and 89 percent in 2010. OHSS Persist Database
March 31, 2024; see also OHSS, Immigration Enforcement and Legal
Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last
updated May 10, 2024) (``CBP SW Border Encounters by Citizenship''
and ``CBP SW Border Encounters by Family Status'').
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Of course, as noted above, DHS has been experiencing much higher
encounter levels,\269\ and simply does not have the resources it would
need to place into expedited removal the majority of those encountered
by USBP who are amenable to such processing. Similarly, DHS has never
had the resources to detain every individual encountered at the border
through the pendency of their immigration removal proceedings--even
during FY 2009 through FY 2020, when average encounters between POEs on
the SWB were 1,200 a day. Encounters between POEs on the SWB are now
more than triple that level, resulting in overcrowded USBP facilities,
an immigration detention system that has regularly been at capacity,
and an asylum system that has been crippled by enormous backlogs and
cannot deliver timely decisions.\270\ When DHS does not
[[Page 48752]]
have the capacity to process individuals through expedited removal or
detain noncitizens to await their proceedings, releasing individuals
into the interior of the United States is generally the only option
that is left.\271\ The need to release individuals at the border has
increased over time and peaked during surges.
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\269\ Even as compared to the 2,000 to 7,000 daily encounters
between POEs in 2000, the corresponding numbers in the recent past
have been higher. In FY 2023, there were 3,300 to 7,300 such daily
encounters, and from October 2023 through March 2024, the
corresponding numbers are 4,000 to 8,300. March 2024 OHSS Persist
Dataset.
\270\ See OHSS analysis of data downloaded from UIP on April 2,
2024. CBP completed approximately 1.7 million total encounters at
the SWB in FY 2021, 2.4 million in FY 2022, and 2.5 million in FY
2023, with each year exceeding the previous record high of 1.6
million in FY 2000. See OHSS analysis of March 2024 OHSS Persist
Dataset. In December 2023, CBP also completed a single-month record
of 302,000 encounters, almost one and a half times as many as the
highest monthly number recorded prior to 2021 (209,000 in March
2000) based on records available in the OHSS Persist Dataset for FY
2000 to the present. Although some of the increase in encounters is
explained by higher-than-normal numbers of repeat encounters of the
same individual during the period in which noncitizens were expelled
pursuant to the CDC's Title 42 public health Order, OHSS analysis of
the March 2024 OHSS Persist Dataset indicates that unique encounters
were also at record high levels. See also OHSS, Immigration
Enforcement and Legal Processes Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated May 10, 2024) (``CBP SW Border Encounters by
Citizenship'' and ``CBP SW Border Encounters by Family Status'').
CBP held an average of 21,863 noncitizens in custody each day
during December 2023, averaging 104 percent of CBP's daily custody
capacity (21,042) roughly each day for the entire month. OHSS
analysis of data downloaded from UIP on February 14, 2024.
EOIR had a backlog of over 2.7 million cases that were pending
in the immigration courts at the end of the first quarter of FY
2024. See EOIR, Adjudication Statistics: Pending Cases, New Cases,
and Total Completions (Jan. 18, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline; see also Ariel G. Ruiz-Soto et al.,
Shifting Realities at the U.S.-Mexico Border: Immigration
Enforcement and Control in a Fast-Evolving Landscape, Migration
Pol'y Inst., at 1 (Jan. 2024), https://www.migrationpolicy.org/sites/default/files/publications/mpi-contemporary-border-policy-2024_final.pdf (``Insufficiently equipped to respond effectively to
these and likely future changes, U.S. immigration agencies must
perpetually react and shift operations according to their strained
capacity and daily changes in migrant arrivals.''); UNHCR, Global
Trends: Forced Displacement in 2022, at 2, 8-9, 12 (June 14, 2023),
https://www.unhcr.org/global-trends-report-2022 (showing rapid
global increases in forcibly displaced persons and other persons in
need of international protection in 2021 and 2022, and projecting
significant future increases).
\271\ Consistent with the Departments' conclusion in the
Circumvention of Lawful Pathways rule, the Departments believe the
emergency border circumstances described in the Proclamation and
this rule cannot be addressed by relying on the programmatic use of
its contiguous territory return authority at section 235(b)(2)(C) of
the INA, 8 U.S.C. 1225(b)(2)(C), due to resource constraints and
foreign affairs considerations. See 88 FR at 31370; 88 FR at 11731.
---------------------------------------------------------------------------
By contrast, when encounters (excluding UCs from non-contiguous
countries and noncitizens determined to be inadmissible at a SWB POE)
are below 1,500 per day, DHS will be able to refer most individuals it
encounters into expedited removal and deliver a swift consequence to
the majority of individuals it encounters who do not establish a legal
basis to remain in the United States--in the form of a return or
removal. Given limited congressional appropriations and agency funding
levels, DHS has a finite capacity to deliver such consequences at the
border, which is reflected in the number of individuals that can be
processed through expedited removal on any given day. As detailed
above, DHS over the past year has significantly streamlined the
expedited removal process and has set records in terms of individuals
placed in expedited removal by CBP at the SWB and credible fear
interviews conducted by AOs. Given current resources, however, and in
the absence of congressional action, there is a limit on how many
people can be put through the process--and that limit directly informs
the 1,500 threshold.
From May 12, 2023, through March 2024, USBP has referred a daily
average of over 900 individuals encountered at the SWB into the
expedited removal process.\272\ During the same period, about 17
percent of individuals encountered between POEs voluntarily returned to
Mexico, had their removal orders reinstated at the border, or were
subject to administrative removal pursuant to INA 238(b), 8 U.S.C.
1228(b).\273\ This means that, at the 1,500-encounter level and
assuming a similar level of voluntary repatriations and reinstatements,
DHS would be able to refer for expedited removal more than 70 percent
of the individuals who are not quickly repatriated.\274\ As discussed
previously, of those individuals encountered by USBP and placed into
expedited removal from May 12, 2023 to March 31, 2024, 65 percent have
been quickly removable--either because they do not claim a fear, or
because they are found not to have a credible fear and are ordered
removed.\275\ This means that, at 1,500 daily encounters between POEs,
and assuming similar fear claim rates, DHS would be able to quickly
remove the majority of the people it processes at the border on any
given day who have no legal basis to remain in the United States.\276\
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\272\ OHSS analysis of data downloaded from UIP on April 2,
2024.
\273\ Based on comprehensive CBP processing dispositions for
single adults, family units, and UCs from contiguous countries
encountered May 12, 2023 to March 31, 2024; data downloaded from UIP
on April 2, 2024.
\274\ At 1,500 single adult, family unit, and UC from contiguous
countries encounters between POEs per day and with 17 percent of
such encounters voluntarily returning to Mexico or subject to
reinstatement of a removal order or administrative removal, 1,250
encounters would not be subject to rapid repatriation, including
1,240 who would potentially be amenable to expedited removal.
Further, assuming that CBP could process 900 people for expedited
removal, the agency would have the ability to place 72 percent of
people not subject to rapid repatriation and 73 percent of
potentially amenable single adults and family units into expedited
removal. OHSS analysis of data downloaded from UIP on April 2, 2024.
Applying the rule even more broadly based on a lower threshold would
also raise countervailing considerations, see supra note 250, and so
the Departments have struck the balance reflected in the rule.
\275\ OHSS analysis of data downloaded from UIP on April 2,
2024.
\276\ At 1,500 encounters of single adults, family units, and
UCs from contiguous countries per day and assuming similar shares of
encounters accept voluntary return or are subject to reinstatement
of removal or administrative removal, about 250 people would be
repatriated with one of these dispositions. Further, assuming 900
encounters would be processed for expedited removal, and that 65
percent of expedited removal encounters would be quickly removable,
about 590 would be repatriated pursuant to an expedited removal
order or withdrawal, yielding a total of about 830 repatriations
(sums do not add due to rounding), or 56 percent of encounters.
---------------------------------------------------------------------------
Simply put, at 1,500 daily encounters, DHS would be able to swiftly
deliver a consequence to enough individuals to meaningfully impact
migratory decisions and deter unlawful entries. DHS would also be able
to minimize releases of those who are amenable to expedited removal or
transfer them to ICE custody pending immigration proceedings. By
contrast, above 2,500 encounters--the level at which the Proclamation
and the rule would again apply--DHS's ability to impose such
consequences is significantly lower and decreases rapidly as encounters
increase beyond that level. At the 2,500-encounter level and assuming a
similar level of voluntary repatriations and reinstatements described
above, DHS would be able to place just 43 percent of the individuals
who are not quickly repatriated into expedited removal--significantly
less than the 70 percent under the 1,500-encounter threshold.\277\ This
would, in turn, lead to a significant degradation of DHS's ability to
impose consequences at the border for individuals who do not establish
a legal basis to remain in the United States, with DHS only able to
quickly remove or return substantially less than half of the
individuals it encounters.\278\ Moreover, the percentage of people who
can be referred to expedited removal and ultimately be quickly removed
if they do not establish a legal basis to remain decreases rapidly as
encounters increase beyond 2,500 given the baseline constraints
outlined above.
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\277\ At 2,500 single adult, family unit, and UC from contiguous
countries encounters between POEs per day and with 17 percent of
such encounters voluntarily returning to Mexico or subject to
reinstatement of a removal order or administrative removal, 2,080
encounters would not be subject to rapid repatriation. Further,
assuming that CBP could process 900 people for expedited removal,
the agency would have the ability to place 43 percent of people not
subject to rapid repatriation into expedited removal. OHSS analysis
of data downloaded from UIP on April 2, 2024.
\278\ At 2,500 encounters of single adults, family units, and
UCs from contiguous countries per day and assuming similar shares of
encounters accept voluntary return or are subject to reinstatement
of removal or administrative removal, about 420 people would be
repatriated with one of these dispositions. Further, assuming 900
encounters would be processed for expedited removal, and that 65
percent of expedited removal encounters would be quickly removable,
about 590 would be repatriated pursuant to an expedited removal
order or withdrawal, yielding a total of about 1,010 repatriations
(sums do not add due to rounding), or 40 percent of encounters.
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This difficulty in imposing swift consequences on individuals
without a legal basis to remain in the United States during periods of
elevated
[[Page 48753]]
encounters is borne out by both recent experience, which is detailed in
Sections III.B.1 and 2 of this preamble, and by historical data. DHS
historical data also clearly show the dichotomy between the outcomes
for individuals processed at the border at the 1,500- and 2,500-
encounter levels. DHS data show that releases from CBP custody as a
share of encounters have generally been highest during periods of
sustained high-encounter levels, and lowest when encounters have been
at 1,500 or below. For example, from FY 2013 through FY 2019, months
with average daily USBP encounters of fewer than 1,500 per day resulted
in a minimal level of releases due to capacity constraints at the
border.\279\ During the 2013 to 2019 pre-pandemic period, USBP
encounters only exceeded 1,500 per day for a sustained period from
October 2018 to August 2019. During that 7-year stretch, months in
which daily encounters were between 1,500 and 2,500 resulted in an
average of 210 individuals released each day, while months in which
daily encounters exceeded 2,500 resulted in approximately 1,300
releases each day with CBP releasing as many as 46 percent of the
individuals it processed pending section 240 removal proceedings.\280\
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\279\ For FY 2013 to FY 2019, in months with fewer than 1,500
encounters between POEs, USBP released an average of 11 encounters
per day. OHSS analysis of March 2024 OHSS Persist Dataset.
\280\ OHSS analysis of March 2024 OHSS Persist Dataset.
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It is important to note, however, the demographics and
nationalities encountered at the border significantly impact DHS's
ability to impose timely consequences and the number of people who are
ultimately released by CBP pending section 240 removal proceedings.
This is especially true for periods when CBP has encountered more UCs,
family units, or individuals from countries to which it is difficult to
effectuate removals. During the 2013 to 2019 time frame--which forms
the basis for the analysis in the preceding paragraph--the vast
majority of encounters at the border were from Mexico, El Salvador,
Guatemala, and Honduras--countries that are comparatively easy to
return people to.\281\ Today, a much higher proportion of SWB
encounters are from other countries that are comparatively much more
difficult to return people to, including record numbers from the
Eastern Hemisphere.\282\ At the same time, the proportion of encounters
involving family units and UCs, although still high, is lower today
than it was during periods of high numbers of encounters and releases
in FY 2019.\283\ Although shifting demographics affect the Departments'
capacity to deliver timely decisions and timely consequences at varying
levels of encounters, it remains clear that with the challenging
demographics being encountered today, DHS would have the ability to
deliver a timely consequence to the majority of people it processes at
the border when encounters are below 1,500--supporting the decision to
suspend the application of the rule when DHS reaches that level of
encounters over a 7-day average. Likewise, as discussed above, the
Departments have concluded that it is reasonable to apply the rule when
encounter levels rise above a 7-day average of 2,500 due to the sharp
decrease in their ability to swiftly impose meaningful consequences at
the border once encounters exceed that level.
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\281\ OHSS analysis of March 2024 OHSS Persist Dataset.
\282\ OHSS analysis of March 2024 OHSS Persist Dataset.
\283\ UCs and family units accounted for 65 percent of USBP
encounters in FY 2019, compared to 45 percent in FY 2024 through
March. OHSS analysis of March 2024 OHSS Persist Dataset.
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Lastly, it is important to note that using a single threshold--for
example, 1,500 encounters--to activate or deactivate the measures in
this rule would pose significant challenges and not be operationally
viable. Having a single threshold would likely lead to scenarios where
the rule would be regularly activated and deactivated as the 7-day
average rose above and below 1,500, which would have significant
operational impacts for CBP, ICE, and USCIS, and be confusing for
government personnel, migrants, and other key stakeholders. For
example, the Departments will need to notify and provide guidance to
their personnel to apply the provisions of this rule in connection with
each activation and deactivation. These actions represent a burden on
staff time and resources that would have negative operational impacts
if activation or deactivation happened regularly. CBP and ICE will also
face scenarios in which they would have many people in their custody
some of whom would be subject to and others of whom would not be
subject to the provisions of this rule, and CBP and ICE will need to
keep track of which individuals needed to be processed under which
procedures--something that could become extraordinarily complex and
unwieldy if the rule were to be activated and deactivated regularly.
Legal service providers and migrants would similarly face a great deal
of confusion about when the provisions of this rule were in effect
based upon a single threshold of 1,500 encounters to activate or
deactivate the measures in this rule. The burden of tracking,
identifying, and applying different standards that change back and
forth over a matter of days is significantly more complex for USCIS
personnel as they consider protection claims.
For all of these reasons, it is important to ensure that there is a
clear division between the levels at which the rule is deactivated and
when it is activated. And to ensure that stakeholders are aware of when
the rule is deactivated and activated, DHS will notify the public about
Secretarial determinations of the encounter levels described in
sections 2(a) and 2(b) of the Proclamation. As noted above, the 2,500-
encounter level is a good proxy for when DHS's ability to quickly
impose consequences at the border for individuals who do not establish
a legal basis to remain is becoming so degraded that it is likely to
further incentivize additional unlawful crossings. It also has the
benefit of increasing the time that would elapse between deactivations
and activations, allowing DHS to ensure that its personnel are not
having to constantly switch back and forth between different
procedures.\284\
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\284\ The Departments recognize that, due to the rule's
approach, at a given encounter level between 1,500 and 2,500
encounters per day--such as 2,000 encounters a day--whether the rule
applies will be path dependent. If encounters have been above 2,500,
the rule will apply. If encounters have been below 1,500, the rule
will not apply. This is a necessary consequence of providing the
clear division that the Departments have deemed necessary, and the
Departments assess that adopting this approach best balances the
relevant considerations.
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The exclusion of those determined to be inadmissible at a SWB POE
from the 1,500- and 2,500-encounter thresholds is also reasonable in
light of recent policy decisions, processing experience, and
operational needs. Since May 12, 2023, SWB daily POE encounters have
averaged 1,650--largely because DHS has been incentivizing individuals
to present at POEs in a safe, orderly manner.\285\ This number has
stayed relatively constant compared to the number of encounters between
POEs, which have varied widely, from a low of 2,554 on May 21, 2023, to
a high of 10,822 on December 18, 2023.\286\ The predictability in the
number of POE encounters, paired with the processing efficiencies
gained by the widespread use of the CBP One app, improves CBP's
[[Page 48754]]
ability to manage encounters at POEs. The vast majority of noncitizens
who present at a SWB POE have done so after having registered with the
CBP One app.\287\ Because such individuals have registered with the CBP
One app, CBP can process these individuals more efficiently and in a
more orderly way than individuals encountered between POEs.\288\ This
is a critical element of our strategy to encourage the use of safe,
orderly, and lawful pathways, as described above, to incentivize
noncitizens to seek out lawful pathways instead of attempting to cross
into the United States irregularly. CBP officers will determine the
most appropriate processing disposition on a case-by-case basis,
although DHS expects to generally issue such individuals an NTA for
removal proceedings under section 240 of the INA.
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\285\ OHSS analysis of March 2024 OHSS Persist Dataset.
\286\ OHSS analysis of March 2024 OHSS Persist Dataset.
\287\ OHSS analysis of March 2024 OHSS Persist Dataset.
\288\ See, e.g., 88 FR at 11719.
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In short, DHS has assessed that the emergency border circumstances
that are described by the Proclamation and this rule--and that the
President has concluded warrant the step of suspending and limiting
entry--reasonably capture the capacity of the border security and
immigration systems to deliver consequences in a timely manner to
individuals who cross unlawfully or without authorization. Thus, the
Departments have determined to tie the application of the rule's
provisions to the date that the Proclamation takes effect, and to
include a mechanism to temporarily halt the application of the rule's
provisions when encounters between POEs reach 1,500 and to restart the
application of its provisions if they once again rise above 2,500.
Because the Departments intend for certain provisions of this rule to
remain in effect in the event a court enjoins or otherwise renders
inoperable the Proclamation, the Departments intend for the Secretary
of Homeland Security to continue to make the factual determinations
regarding the 1,500 and 2,500 thresholds described in this rule and in
sections 2(a) and 2(b) of the Proclamation, even if the Proclamation is
enjoined, in order to provide continuity during emergency border
circumstances. Lastly, the Proclamation may be revoked by the President
upon a determination that it is no longer needed.\289\
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\289\ The Departments have not sought to apply the rule even
after any revocation of the Proclamation by the President, because
the Departments expect that any such revocation would only follow
consultation with the Departments regarding the policy and
operational implications of such an action. Moreover, a decision by
the President would reflect important changed circumstances, and the
Departments would want to take into account those changed
circumstances in assessing the appropriate policy as to the issues
covered by this rule.
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C. Section-by-Section Description of Amendments
1. 8 CFR 208.13 and 1208.13
DHS and DOJ are adding a paragraph (g) to the end of 8 CFR 208.13
and 1208.13, respectively, Establishing asylum eligibility, to explain
when a noncitizen is potentially subject to this IFR's limitation on
asylum eligibility and credible fear screening procedures and how this
limitation and its associated procedures interact with the Lawful
Pathways condition referenced in paragraph (f) of 8 CFR 208.13 and
1208.13. Paragraph (g) refers the reader to the new regulatory
provisions at 8 CFR 208.35 and 1208.35 that establish the limitation on
eligibility for asylum where a noncitizen entered the United States
across the southern border during emergency border circumstances.
2. 8 CFR 208.35
DHS is adding to 8 CFR part 208, Procedures for Asylum and
Withholding of Removal, a new subpart D, Eligibility for Aliens Who
Enter the United States During Emergency Border Circumstances. Within
subpart D, DHS is adding a new Sec. 208.35, Limitation on asylum
eligibility and credible fear procedures for those who enter the United
States during emergency border circumstances. This section sets forth a
new limitation on asylum eligibility and screening procedures related
to the application of such limitation in expedited removal proceedings
and the conduct of credible fear screenings during the emergency border
circumstances. This provision applies notwithstanding any contrary
provision of part 208.
Section 208.35 consists of the following provisions:
Paragraph (a) sets forth the limitation on asylum eligibility.
Under the rule, a noncitizen is ineligible for asylum if the noncitizen
is described in Sec. 208.13(g) and not described in section 3(b) of
the Proclamation. This approach is consistent with the general policy
of the Proclamation and rule and provides important exceptions that
continue to incentivize the use of safe, orderly, and lawful pathways,
such as for those who arrive in the United States at a southwest land
border POE pursuant to a process approved by the Secretary of Homeland
Security.\290\
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\290\ See DHS, Fact Sheet: Department of State and Department of
Homeland Security Announce Additional Sweeping Measures To Humanely
Manage Border through Deterrence, Enforcement, and Diplomacy (May
10, 2023), https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.
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Paragraph (a)(2) contains provisions regarding an exception to the
limitation on asylum eligibility that aligns with the means for
rebutting the presumption of asylum ineligibility in the Circumvention
of Lawful Pathways rule. See 8 CFR 208.33(a)(3)(i), 1208.33(a)(3)(i).
The exception applies if the noncitizen, or the noncitizen's family
member as described in Sec. 208.30(c) with whom the noncitizen is
traveling, demonstrates by a preponderance of the evidence
exceptionally compelling circumstances, including that, at the time of
entry, the noncitizen or a member of the noncitizen's family as
described in Sec. 208.30(c) with whom the noncitizen is traveling:
Faced an acute medical emergency;
Faced an imminent and extreme threat to life or safety,
such as an imminent threat of rape, kidnapping, torture, or murder; or
Satisfied the definition of ``victim of a severe form of
trafficking in persons'' provided in 8 CFR 214.11.
Paragraph (a)(2)(ii) makes clear that where a noncitizen
establishes one of the above, they shall necessarily have established
exceptionally compelling circumstances. This exception for
exceptionally compelling circumstances limits the potential adverse
effects of the limitation on asylum eligibility on certain particularly
vulnerable populations, and family members with whom they are
traveling, without undermining the key policy imperative to
disincentivize irregular migration during a time when encounters are
above certain benchmarks.\291\ Paragraph (a)(2)(iii) deems those who
have established exceptionally compelling circumstances for purposes of
this asylum limitation or who are described in the provisions of the
Proclamation as being excepted from its suspension and limitation on
entry as having established exceptionally compelling circumstances for
purposes of the Lawful Pathways condition. This provision is intended
to simplify administration of this asylum limitation while it and the
Circumvention of
[[Page 48755]]
Lawful Pathways rule are both operative.
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\291\ See, e.g., 88 FR at 31325 (``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.'').
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Paragraph (b) prescribes procedures for considering the limitation
on asylum eligibility during the credible fear screening process and
for applying the ``reasonable probability'' standard in the event the
Proclamation or the limitation on asylum eligibility are rendered
inoperable by court order. Under paragraph (b)(1), the AO will first
determine whether there is a significant possibility that the
noncitizen is eligible for asylum in light of the limitation on asylum
eligibility in paragraph (a). The paragraph sets forth three possible
procedural scenarios depending on the AO's findings. First, where the
AO determines that the noncitizen is subject to the limitation on
asylum eligibility under paragraph (a)--including that there is not a
significant possibility, see INA 235(b)(1)(B)(iii), 8 U.S.C.
1225(b)(1)(B)(iii),\292\ that the noncitizen could establish an
exception under section 3(b) of the Proclamation--and that there is not
a significant possibility that the noncitizen could establish an
exception to the limitation under paragraph (a)(2), the AO will enter a
negative credible fear determination with respect to the noncitizen's
asylum claim and continue to consider the noncitizen for potential
eligibility for statutory withholding of removal and CAT protection
under the procedures in paragraph (b)(2), as described below. See 8 CFR
208.35(b)(1)(i). Second, where the AO determines that the noncitizen is
not subject to this IFR's limitation on asylum eligibility because
there is a significant possibility that the noncitizen could establish
that they are not described in Sec. 208.13(g), the AO will follow the
procedures for credible fear interviews relating to the Lawful Pathways
condition in Sec. 208.33(b). See id. 208.35(b)(1)(ii). This provides
that those noncitizens who are not subject to the Proclamation because
they did not enter during emergency border circumstances are processed
under the provisions governing the Lawful Pathways condition--and under
Sec. 208.33(b)(1)(ii), if the noncitizen is not subject to that
condition, they will be screened for a significant possibility of
eligibility for statutory withholding of removal or CAT protection
consistent with Sec. 208.30.\293\ Third, where the AO determines that
the noncitizen is not subject to this IFR's limitation on asylum
eligibility because there is a significant possibility that the
noncitizen could establish either that they are described in section
3(b) of the Proclamation or exceptionally compelling circumstances
exist under paragraph (a)(2), the AO will conduct the screening
consistent with 8 CFR 208.30. See id. 208.35(b)(1)(iii).
---------------------------------------------------------------------------
\292\ In the Circumvention of Lawful Pathways rule, the
Departments described how AOs would apply the limitation on asylum
eligibility at issue there consistent with the statutory
``significant possibility'' standard. See 88 FR at 31380. That
discussion in the Circumvention of Lawful Pathways rule also applies
to AOs' application of the limitation on asylum eligibility created
by this IFR. As explained above in Section III.B.3.a of this
preamble, AOs will rarely have grounds to reach a different result
from the CBP immigration officers as to the application of the
Proclamation or its exceptions.
\293\ In such cases, consistent with the Circumvention of Lawful
Pathways rule, DHS would also have discretion to refer the
noncitizen to EOIR for section 240 removal proceedings. See Matter
of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011); see also 88 FR at
31348.
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If the AO determines that the noncitizen is subject to paragraph
(a) and cannot establish a significant possibility that they will be
able to establish exceptionally compelling circumstances by a
preponderance of the evidence per paragraph (a)(2), the AO will then
assess whether the noncitizen has established a reasonable probability
of persecution (meaning a reasonable probability of being persecuted
because of their race, religion, nationality, membership in a
particular social group, or political opinion) or torture, with respect
to the designated country or countries of removal identified pursuant
to section 241(b) of the INA, 8 U.S.C. 1231(b). See 8 CFR
208.35(b)(2)(i). As noted above, for purposes of this section,
reasonable probability means substantially more than a reasonable
possibility, but somewhat less than more likely than not, that the
noncitizen would be persecuted because of his or her race, religion,
nationality, membership in a particular social group, or political
opinion, or tortured, with respect to the designated country or
countries of removal. See id.
If the noncitizen establishes a reasonable probability of
persecution or torture with respect to the designated country or
countries of removal, DHS will issue a positive credible fear
determination and follow the procedures in Sec. 208.30(f). See id.
208.35(b)(2)(ii). Under Sec. 208.30(f), USCIS may issue an NTA for
removal proceedings under section 240 of the INA, or, in its
discretion, retain the application for an asylum merits interview
pursuant to Sec. 208.2(a)(1)(ii). Under the regulations governing the
asylum merits interview process, where USCIS exercises its discretion
to retain jurisdiction over an application for asylum of a noncitizen
found to have a credible fear of persecution or torture pursuant to
Sec. 208.30(f), the written record of the positive credible fear
determination is treated as the asylum application. 8 CFR 208.3(a)(2).
Under this IFR, however, noncitizens who are subject to the limitation
on asylum eligibility under 8 CFR 208.35(a), and fail to show a
significant possibility of being able to establish an exception by a
preponderance of the evidence at the credible fear interview, will
receive a negative credible fear determination with respect to their
application for asylum, pursuant to Sec. 208.35(b)(1)(i), but could go
on to receive a positive credible fear determination with respect to a
potential claim for statutory withholding of removal or protection
under the CAT at the reasonable probability of persecution or torture
standard. See id. 208.35(b)(2).
In the event that USCIS were to exercise its discretion to place
such a case into the asylum merits interview process, the credible fear
record in that case would have found the applicant unable to establish
eligibility for asylum under Sec. 208.35(a) and the positive
determination would be based only on a potential statutory withholding
of removal or protection under the CAT claim. USCIS may thus need
supplementary information to constitute an application for asylum, as
the asylum claim may not have been fully explored in the credible fear
record given that the AO determined the applicant would have been
ineligible for asylum based on the rule's limitation on asylum
eligibility. Therefore, Sec. 208.35(b)(2)(ii) allows USCIS to require
a noncitizen who received a negative credible fear determination with
respect to their application for asylum pursuant to Sec.
208.35(b)(1)(i), but whose application is nonetheless retained by USCIS
for asylum merits interview proceedings, to submit an asylum
application to USCIS within 30 days of service of the positive credible
fear determination, to ensure that there is a record of their potential
asylum claim to serve as a substantive asylum application. For purposes
of the filing and receipt date, the date of service of the positive
credible fear determination will continue to serve as the date of
filing pursuant to Sec. 208.3(a)(2); however, if USCIS requires the
submission of an asylum application, the timelines laid out in Sec.
208.9(a)(1) and Sec. 208.9(e)(2) may be delayed up to 15 days,
considering the need to allow extra time for the submission of an
asylum application to USCIS following service of the positive credible
fear determination. See id. 208.35(b)(2)(ii). Under this IFR, if the
applicant does not submit the
[[Page 48756]]
application within the time period required, USCIS will refer the
noncitizen to section 240 removal proceedings before an IJ. USCIS does
not foresee that it would be a prudent use of resources to place such
cases into the asylum merits interview process, considering that USCIS
has a finite number of AOs, and it is more efficient at present to
assign work in a manner that maximizes the number of credible fear
interviews USCIS can conduct at the border. Nevertheless, the IFR
preserves the flexibility for USCIS to exercise its discretion to
potentially place such cases into the asylum merits interview process
(albeit with the potential addition of a supplementary application for
asylum) should available resources and circumstances ever be such that
it would be prudent to place such cases into the asylum merits
interview process.
If the noncitizen fails to establish a reasonable probability of
persecution or torture with respect to all designated countries of
removal, the AO will provide the noncitizen with a written notice of
decision and inquire whether the noncitizen wishes to have an IJ review
the negative credible fear determination. See id. 208.35(b)(2)(iii). If
the noncitizen indicates on the Record of Negative Fear that they
request IJ review of the adverse finding, see id. 208.35(b)(2)(iv), the
AO will serve the noncitizen with a Notice of Referral to Immigration
Judge, see id. 208.35(b)(2)(v). See 88 FR at 11747; 88 FR at 31423. The
record of determination, including copies of the Notice of Referral to
Immigration Judge, the AO's notes, the summary of the material facts,
and other materials upon which the AO based their determination
regarding the applicability of the condition on asylum eligibility
(which, in cases where the limitation on asylum eligibility created by
this IFR applies, includes materials showing the relevant known entry
date), will be provided to the IJ with the negative determination. See
8 CFR 208.35(b)(2)(v). The IJ would then review the case consistent
with Sec. 1208.35, described below.
If, following IJ review, the IJ makes a positive credible fear
determination under Sec. 1208.35(b)(2)(iii) or Sec. 1208.35(b)(4),
the case will proceed under Sec. 1208.30(g)(2)(iv)(B). See id.
208.35(b)(2)(v)(A). The IJ may vacate the Notice and Order of Expedited
Removal and refer the case back to DHS for further proceedings
consistent with 8 CFR 1208.2(a)(1)(ii). See id. 1208.30(g)(2)(iv)(B).
Alternatively, DHS may commence section 240 removal proceedings, during
which time the noncitizen may file an application for asylum, statutory
withholding of removal, and CAT protection in accordance with Sec.
1208.4(b)(3)(i). See id. 1208.30(g)(2)(iv)(B).
If the IJ makes a negative credible fear determination, however,
the case will be returned to DHS for removal of the noncitizen. See id.
208.35(b)(2)(v)(B). Consistent with the purpose of the expedited
removal process and this IFR, there would be no appeal from the IJ's
decision and DHS would not accept requests for reconsideration. See id.
USCIS may, however, in its sole discretion, reconsider a negative
determination. See id.; 88 FR at 11747; 88 FR at 31418-19.
Paragraph (b)(3) applies in the event that the limitation on asylum
eligibility in paragraph (a) is rendered inoperative by court order. In
such circumstance, those who enter during emergency border
circumstances and who are found not to have a significant possibility
of eligibility for asylum because of the Lawful Pathways condition will
be screened for eligibility for statutory withholding of removal and
CAT protection under the ``reasonable probability'' screening standard.
This will ensure continued applicability of that standard during
emergency border circumstances, even absent the rule's limitation on
asylum eligibility. The Departments acknowledge that under this
approach, not all who would have been subject to the higher screening
standard if the limitation remained in force would be subject to it in
the event of an injunction--i.e., those who do not travel through a
country other than their country of citizenship, nationality, or, if
stateless, last habitual residence; those excepted from the Lawful
Pathways condition under the exceptions at 8 CFR 208.33(a)(2)(ii)(A)
and (C); those excepted from the Lawful Pathways condition because they
present at a POE without a pre-scheduled time and place and demonstrate
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; and those who enter across the
maritime borders covered by the Proclamation that are not covered by
the Lawful Pathways condition. The Departments have adopted a somewhat
narrower scope for the standard to avoid a circumstance where AOs and
IJs would be required to analyze both the applicability of the Lawful
Pathways condition and then also whether the noncitizen would otherwise
be subject to the rule's limitation--which could complicate and
increase the time required to conduct credible fear screenings. The
Departments believe the approach adopted strikes the right balance
between the interest in applying the screening standard to those to
whom it would otherwise apply and administrability in the event the
limitation on asylum eligibility is rendered inoperative by court
order. The Departments request comment on whether to expressly expand
this provision to also apply to those who are found not to have a
significant possibility of eligibility for asylum because they are
barred from asylum due to a mandatory bar to asylum eligibility if the
rule Application of Certain Mandatory Bars in Fear Screenings, 89 FR
41347 (May 13, 2024), is finalized.
Paragraph (c) contains a family unity provision that parallels and
serves the same purposes as the DOJ family unity provision in the
Circumvention of Lawful Pathways rule. See 8 CFR 1208.33(c). The
paragraph specifies that a noncitizen who would be eligible for asylum
but for the limitation on eligibility set forth in the IFR, the
condition set forth in the Circumvention of Lawful Pathways rule, or
both, may meet the family unity exception where the other requirements
are met. The expressly permissive, discretionary nature of this
provision, which owes in part to the considerations described earlier
in this section with respect to asylum merits interviews, distinguishes
it from the parallel DOJ provision in the Circumvention of Lawful
Pathways rule and the parallel DOJ provision described in the next
section of this preamble.
Paragraph (d) mirrors 8 CFR 208.33(c) and 1208.33(d) and specifies
the ongoing applicability of the limitation on asylum eligibility by
providing that it shall apply to ``any asylum application'' that is
filed by a covered noncitizen ``regardless of when the application is
filed and adjudicated.'' Id. 208.35(d)(1). The Departments have
excepted from this ongoing application of the limitation on asylum
eligibility certain noncitizens who enter the United States during
emergency border circumstances while under the age of 18 and who later
seek asylum as principal applicants so long as the asylum application
is filed after the period of time described in Sec. 208.13(g) during
which the noncitizen entered. See id. 208.35(d)(2). Commenters on the
Circumvention of Lawful Pathways rule raised concerns about the impact
of that rule on children who arrive as part of a family unit and who
are thus subject to the decision-making of their parents. 88 FR at
31320. The Departments decided to adopt a provision excepting
[[Page 48757]]
such children from that rule in certain circumstances after the two-
year period ends. See 8 CFR 208.33(c)(2), 1208.33(d)(2). The
Departments recognized that children who enter with their families are
generally traveling due to their parents' decision-making. 88 FR at
31320. The Departments believe that these considerations are also
relevant to this rule and have decided to adopt a similar approach as
that adopted in the Circumvention of Lawful Pathways rule.
The Departments considered whether to except family units, or
children who are part of family units, from the limitation on asylum
eligibility entirely. The Departments decline to adopt such an
approach. Excepting all family units that include minor children could
incentivize families who otherwise would not make the dangerous journey
and cross unlawfully to do so. And excepting only the child 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
limitation but their parents could be. Although accompanied children
remain subject to the limitation on asylum eligibility generally, the
Departments have determined that the limitation should not apply to
them in any application for asylum they file after the relevant period,
but only if they apply as a principal (as opposed to a derivative)
applicant.
The Departments also considered applying a specific calendar date
to this provision, similar to the approach taken by the Departments in
the Circumvention of Lawful Pathways rule.\294\ The Departments
determined that such a provision would be challenging to implement
because the Departments have not identified a date certain upon which
emergency border circumstances are expected to discontinue. The
Departments believe that the key purpose of an asylum application
waiting period--protecting against any perceived incentive for family
units to migrate irregularly--is adequately served by a requirement
that the applicable period of emergency border circumstances is no
longer in place at the time of application. For that same reason, the
Departments do not believe it is necessary to make this exception
unavailable during any period of emergency border circumstances;
instead, this exception will be available after the end of the
emergency border circumstance during which the applicant entered.
Because noncitizens will not know in advance when the emergency border
circumstance will end, and when another emergency border circumstance
might occur, the approach adopted in the rule addresses noncitizens'
incentives without restricting this exception more than is necessary.
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\294\ Under that rule, the Lawful Pathways condition does not
apply to certain asylum applications filed after May 11, 2025--two
years after that rule's initial issuance. 8 CFR 208.33(c)(2),
1208.33(d)(2); 88 FR at 31449.
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The Departments believe this approach balances the interest in
ensuring the limitation has an impact on behavior, while at the same
time recognizing the special circumstance of children who enter in a
manner that triggers the limitation, 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
children who filed as a derivative, the Departments would risk
incentivizing families to seek to prolong their proceedings to file
their asylum applications after the end of the circumstances leading to
the suspension and limitation on entry, undermining the Departments'
interest in efficient adjudications. In addition, any family that did
so would be able to avoid the applicability of the limitation entirely,
by virtue of the rule's family unity provision. The Departments have
decided not to include such a broad exception, in light of the urgent
need to gain efficiencies in the expedited removal process and dissuade
entry during the circumstances described in the Proclamation and this
rule.
Finally, DHS is including a severability clause in this provision.
See 8 CFR 208.35(e). If any provision of this section, Sec. 235.15, or
the Proclamation is held to be invalid or unenforceable by its terms,
or as applied to any person or circumstance, DHS intends that the
provision be construed so as to continue to give the maximum effect to
the provision permitted by law, unless such holding is that the
provision is wholly invalid and unenforceable, in which event the
provision should be severed from the remainder of this section and the
holding should not affect the remainder of this section or the
application of the provision to persons not similarly situated or to
dissimilar circumstances. Indeed, in this rule, the Departments have
sought to avoid describing ``emergency border circumstances'' as the
time period during which the Proclamation is in effect, because the
Departments intend for certain provisions of this rule to remain in
effect in the event a court enjoins or otherwise renders inoperable the
Proclamation or this rule's limitation on asylum eligibility. This
approach is consistent with the nature of the rule as an emergency
measure and reflects DHS's determination that the limitation on asylum
eligibility will improve the border security and immigration systems'
capacity to safely process migrants during the circumstances described
in the Proclamation and this rule. For example, even in the absence of
the limitation on asylum eligibility, as expressly set forth in
paragraph (b)(3), the Department intends that the ``reasonable
probability'' standard be used for screening for eligibility for
statutory withholding of removal and CAT protection for those who would
have been subject to the limitation on asylum if they are otherwise
unable to establish a credible fear of persecution for asylum purposes,
including but not limited to because they are subject to the Lawful
Pathways rebuttable presumption. Similarly, even in the absence of the
new provision at 8 CFR 235.15 discussed below, the changes made in
Sec. 208.35 are expected to prove helpful in the emergency
circumstances described by the Proclamation and the rule. See id.
208.35(e).
3. 8 CFR 1208.35
Like DHS's addition to 8 CFR part 208, DOJ is adding to 8 CFR part
1208, Procedures for Asylum and Withholding of Removal, a new subpart
D, Eligibility for Aliens Who Enter the United States During Emergency
Border Circumstances. Within subpart D, DOJ is adding a new Sec.
1208.35, Limitation on asylum eligibility and credible fear procedures
for those who enter the United States during emergency border
circumstances. This section sets forth a new limitation on asylum
eligibility and procedures related to IJ review of credible fear
determinations in expedited removal proceedings during emergency border
circumstances. This provision applies notwithstanding any contrary
provision in EOIR's regulations. Section 1208.35 consists of the
following provisions:
Paragraph (a) mirrors new Sec. 208.35(a), discussed above.
Paragraph (b) provides procedures for credible fear determinations.
Under these procedures, when a noncitizen has requested IJ review of an
AO's negative credible fear determination, the IJ will evaluate the
case de novo, taking into account the credibility of the statements
made by the noncitizen in support of the noncitizen's claim and such
other facts as are known to the IJ. See 8 CFR 1208.35(b)(1). The
paragraph sets forth three possible procedural scenarios depending on
the IJ's determinations. First, where the IJ determines that the
[[Page 48758]]
noncitizen is not subject to this IFR's limitation on asylum
eligibility because there is a significant possibility that the
noncitizen could establish that they are not described in Sec.
1208.13(g), the IJ will follow the procedures for credible fear
interviews relating to the Lawful Pathways condition in Sec.
1208.33(b). See id. 1208.35(b)(2)(i).\295\ This provides that those
noncitizens who did not enter during emergency border circumstances are
processed under the provisions governing the Lawful Pathways
condition--and under Sec. 1208.33(b)(2)(i), if the noncitizen is not
subject to that condition they will be screened for a significant
possibility of eligibility for statutory withholding of removal or CAT
protection consistent with Sec. 208.30. Second, where the IJ
determines that the noncitizen is not subject to this IFR's limitation
on asylum eligibility because there is a significant possibility that
the noncitizen could establish either that they are described in
section 3(b) of the Proclamation or exceptionally compelling
circumstances exist under paragraph (a)(2), the IJ will follow the
procedures in 8 CFR 1208.30. See id. 1208.35(b)(2)(ii). Third, where
the IJ determines that the IFR's limitation on asylum eligibility
applies--including that there is not a significant possibility that the
noncitizen could establish an exception under section 3(b) of the
Proclamation--and that there is not a significant possibility that the
noncitizen could establish an exception under paragraph (a)(2) of the
limitation, the IJ will apply the Circumvention of Lawful Pathways
rule's procedures set forth in Sec. 1208.33(b)(2)(ii), except that the
IJ will apply a ``reasonable probability'' standard to parallel the
standard adopted by DHS. See id. 1208.35(b)(2)(iii).
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\295\ As explained above regarding AOs, the discussion in the
Circumvention of Lawful Pathways rule regarding how AOs would apply
the limitation on asylum eligibility at issue there consistent with
the statutory ``significant possibility'' standard, see 88 FR at
31380, is equally applicable to IJs' application of the limitation
on asylum eligibility created by this IFR. As explained above in
Section III.B.3.a of this preamble, IJs will rarely have grounds to
reach a different result from the CBP immigration officers as to the
application of the Proclamation or its exceptions.
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Paragraph (b)(4), mirrors new Sec. 208.35(b)(3), discussed above.
Paragraph (c) contains a family unity provision that parallels and
serves the same purposes as the family unity provision in the
Circumvention of Lawful Pathways rule. See id. 1208.33(c), 1208.35(c).
The paragraph specifies that a noncitizen who would be eligible for
asylum but for the limitation on eligibility set forth in the IFR, the
condition set forth in the Circumvention of Lawful Pathways rule, or
both, may meet the family unity exception where the other requirements
are met.
Paragraph (d) mirrors new Sec. 208.35(d), discussed above.
Paragraph (e) contains a severability provision that serves a
similar purpose to the provision in Sec. 208.35(e) described above. If
any provision of this section or the Proclamation is held to be invalid
or unenforceable by its terms, or as applied to any person or
circumstance, DOJ intends that the provision be construed so as to
continue to give the maximum effect to the provision permitted by law,
unless such holding is that the provision is wholly invalid and
unenforceable, in which event the provision should be severed from the
remainder of this section and the holding should not affect the
remainder of this section or the application of the provision to
persons not similarly situated or to dissimilar circumstances. This
approach is consistent with the nature of the rule as an emergency
measure and reflects DOJ's determination that the limitation on asylum
eligibility will improve the border security and immigration systems'
capacity to safely process migrants during the circumstances described
in the Proclamation and this rule. For example, as set forth explicitly
in paragraph (b)(4), even in the absence of the limitation on asylum
eligibility, the Department intends that the ``reasonable probability''
standard be used for screening for eligibility for statutory
withholding of removal and CAT protection for those who would have been
subject to the limitation on asylum if they are otherwise unable to
establish a credible fear of persecution for asylum purposes, including
but not limited to because they are subject to the Lawful Pathways
rebuttable presumption. See id. 1208.35(e).
4. 8 CFR 235.15
DHS is adding to 8 CFR part 235, Inspection of Persons Applying for
Admission, a new Sec. 235.15, Inadmissible aliens and expedited
removal during emergency border circumstances. New 8 CFR 235.15 will
further streamline aspects of the expedited removal process by
effectively replacing paragraphs (b)(2)(i) and (b)(4)(i) of 8 CFR 235.3
for those individuals described in Sec. 235.3(b)(1)(i) or (ii) and who
are described in Sec. 208.13(g) but not described in section 3(b) of
the Proclamation. See 8 CFR 235.15. The changes would not affect
implementation of 8 CFR 235.3(b)(4)(ii) or any other portion of 8 CFR
235.3. See id. The changes are as follows.
First, under 8 CFR 235.3(b)(2)(i), the record of proceeding
includes a sworn statement using Form I-867AB, Record of Sworn
Statement in Proceedings under Section 235(b)(1) of the Act. Under the
existing regulations, the examining immigration officer reads (or has
read) to the noncitizen all information contained on Form I-867A.
Following questioning and recording of the noncitizen's statement
regarding identity, alienage, and inadmissibility, the examining
immigration officer records the noncitizen's response to the questions
contained on Form I-867B, and has the noncitizen read (or has read to
the noncitizen) the statement, and the noncitizen signs and initials
each page of the statement and each correction, if any.
DHS is adding a new 8 CFR 235.15(b)(2)(i) to apply to certain
noncitizens instead of this current process during emergency border
circumstances. Under this procedure, Forms I-867A and I-867B will no
longer be mandated in such circumstances. Instead, the immigration
officer shall advise the individual of the charges against them on the
Form I-860 and give him or her an opportunity to respond to those
charges. See 8 CFR 235.15(b)(2)(i)(B). This provision does not require
that the response be done through a sworn statement. See id. Consistent
with current regulations, however, the inspecting officer must obtain
supervisory concurrence of an expedited removal order in accordance
with Sec. 235.3(b)(7). Id. Moreover, consistent with current
regulations, the examining immigration official shall serve the
noncitizen with Form I-860, and the noncitizen shall be required to
sign the form acknowledging receipt. Id. The new 8 CFR 235.15(b)(2)(i)
no longer mandates that the signature occur on the reverse, but
preserves the requirement that the noncitizen be required to sign,
allowing greater flexibility for location of signature blocks on the
document. See id. 235.3(b)(2)(i). The new provision maintains the
requirement that interpretative assistance shall be used if necessary
to communicate with the noncitizen. Id. 235.3(b)(2)(i)(B). The new 8
CFR 235.15(b)(2)(i) also allows for greater flexibility regarding how
DHS records the information that supports the finding that the
noncitizen is inadmissible and subject to expedited removal. This
operational flexibility is consistent with the President's
determination that emergency border circumstances are present such that
the suspension and limitation on entry is warranted.
[[Page 48759]]
Second, under 8 CFR 235.3(b)(4), if a noncitizen subject to the
expedited removal provisions indicates an intention to apply for
asylum, or expresses a fear of persecution or torture, or a fear of
return to his or her country, the inspecting officer does not proceed
further with removal of the noncitizen until the noncitizen has been
referred for an interview by an AO in accordance with 8 CFR 208.30.
Instead of this current process, DHS is adding a new 8 CFR
235.15(b)(4), applicable to those who (1) are described in Sec.
208.13(g), (2) are not described in section 3(b) of the Proclamation,
and (3) are processed for expedited removal. Under this provision the
immigration officer would refer the noncitizen to an AO if the
noncitizen manifests a fear of return or affirmatively expresses an
intention to apply for asylum, or affirmatively expresses a fear of
persecution or torture, or a fear of return to his or her country or
the country of removal.
Third, under 8 CFR 235.3(b)(4)(i), the referring officer provides
the noncitizen with a written disclosure on Form M-444, Information
About Credible Fear Interview, describing (1) the purpose of the
referral and description of the credible fear interview process; (2)
the right to consult with other persons prior to the interview and any
review thereof at no expense to the United States Government; (3) the
right to request a review by an IJ of the AO's credible fear
determination; and (4) the consequences of failure to establish a
credible fear of persecution or torture. New 8 CFR 235.15(b)(4) will
simply require that an immigration officer provide ``a written
disclosure describing the purpose of the referral and the credible fear
interview process; the right to consult with other persons prior to the
interview and any review thereof at no expense to the United States
Government; the right to request a review by an IJ of the AO's credible
fear determination; and the consequences of failure to establish a
credible fear of persecution or torture.'' 8 CFR 235.15(b)(4)(i)(B).
Thus, while maintaining the substance of the information that must be
provided to the noncitizen, the regulation removes the requirement that
it be on a particular form, allowing for greater flexibility in how the
information is distributed.
Finally, DHS is including a severability clause in this provision.
See id. 235.15(g). DHS believes that each of these changes can function
sensibly without the others, given that each change is independently
seeking to provide greater flexibility during a time when the
suspension and limitation on entry is in effect, while still protecting
the important ability of individuals to seek protection from removal.
DHS further believes that even if a court order enjoins or vacates the
Proclamation or provisions other than Sec. 235.15 of this rule, the
provisions in Sec. 235.15 can continue to apply to those described in
Sec. 208.13(g) and not described in section 3(b) of the Proclamation,
even if they cannot be subject to those provisions by operation of such
court order.
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
Under the Administrative Procedure Act (``APA''), agencies must
generally provide ``notice of proposed rule making'' in the Federal
Register and, after such notice, ``give interested persons an
opportunity to participate in the rule making through submission of
written data, views, or arguments.'' 5 U.S.C. 553(b) and (c). The APA
further provides that the required publication or service of a
substantive rule shall be made not less than 30 days before its
effective date, except in certain circumstances. Id. 553(d). Consistent
with the APA, the Departments have not invoked these procedures because
(1) this rule involves a foreign affairs function of the United States
and thus is excepted from such requirements, id. 553(a)(1), and (2) the
Departments have found good cause to proceed with an immediately
effective interim final rule, id. 553(b)(B), 553(d)(3), for the reasons
explained below. At the same time, the Departments seek and welcome
post-promulgation comments on this IFR.
1. Foreign Affairs
This rule is excepted from the APA's notice-and-comment and
delayed-effective-date requirements because it involves a ``foreign
affairs function of the United States.'' 5 U.S.C. 553(a)(1). Courts
have held that this exception applies when the rule in question ``is
clearly and directly involved in a foreign affairs function.'' \296\ In
addition, although the text of the APA does not require an agency
invoking this exception to show that such procedures may result in
``definitely undesirable international consequences,'' some courts have
required such a showing. Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.
2008) (quotation marks omitted).\297\ This rule satisfies both
standards.
---------------------------------------------------------------------------
\296\ E.B. v. U.S. Dep`t of State, 583 F. Supp. 3d 58, 63
(D.D.C. 2022) (cleaned up); see Mast Indus., Inc. v. Regan, 596 F.
Supp. 1567, 1582 (Ct. Int'l. Trade 1984); see also Am. Ass'n of
Exps. & Imps. v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985)
(holding that the exception applies where a rule is ``linked
intimately with the Government's overall political agenda concerning
relations with another country'').
\297\ See, e.g., Rajah, 544 F.3d at 437 (``There are at least
three definitely undesirable international consequences that would
follow from notice and comment rulemaking. First, sensitive foreign
intelligence might be revealed in the course of explaining why some
of a particular nation's citizens are regarded as a threat. Second,
relations with other countries might be impaired if the government
were to conduct and resolve a public debate over why some citizens
of particular countries were a potential danger to our security.
Third, the process would be slow and cumbersome, diminishing our
ability to collect intelligence regarding, and enhance defenses in
anticipation of, a potential attack by foreign terrorists.''); see
also Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980)
(``For the [foreign affairs] exception to apply, the public
rulemaking provisions should provoke definitely undesirable
international consequences.''). But see E.B., 583 F. Supp. 3d at 64-
66 (rejecting the ``provoke definitely undesirable international
consequences'' standard).
---------------------------------------------------------------------------
The United States' border management strategy is predicated on the
belief that migration is a shared responsibility among all countries in
the region--a fact reflected in the intensive and concerted diplomatic
outreach on migration issues that DHS and the Department of State have
made with partners throughout the Western Hemisphere. This strategy
includes the Los Angeles Declaration on Migration and Protection, which
was joined by leaders during the Summit of the Americas on June 10,
2022, and has been endorsed by 22 countries.\298\ Under the umbrella of
this framework, the United States has been working closely with its
foreign partners to manage the unprecedented levels of migration that
countries throughout the region have recently been experiencing,
including on efforts to: expand access to, and increase, lawful
pathways, such as the Safe Mobility Office initiative; \299\ conduct
joint enforcement efforts, such as the Dari[eacute]n Campaign with
Colombia and Panama and the mirrored patrols \300\ with the Government
of Mexico along
[[Page 48760]]
our shared border; \301\ and share information, technical assistance,
and best practices.\302\ The United States and endorsing countries
continue to progress and expand upon our shared commitments made under
this framework.\303\
---------------------------------------------------------------------------
\298\ See Los Angeles Declaration on Migration and Protection,
Endorsing Countries, https://losangelesdeclaration.com/endorsing-countries (last visited May 27, 2024).
\299\ See U.S. Dep't of State, Safe Mobility Initiative, https://www.state.gov/refugee-admissions/safe-mobility-initiative (last
visited May 27, 2024).
\300\ See CBP, Readout: U.S.-Mexico meeting on joint actions to
further enhance border security (Sept. 24, 2023), https://www.cbp.gov/newsroom/national-media-release/readout-us-mexico-meeting-joint-actions-further-enhance-border (noting that CBP
encouraged mirrored patrols); U.S. Dep't of State, Third Meeting of
the U.S.-Mexico High-Level Security Dialogue--Fact Sheet (Oct. 13,
2023), https://www.state.gov/third-meeting-of-the-u-s-mexico-high-level-security-dialogue/ (noting that ``CBP and INM regularly
coordinate enforcement efforts at the border through mirrored
patrols,'' which suggests that those patrols were occurring).
\301\ See DHS, Trilateral Statement (Apr. 11, 2023), https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.
\302\ See, e.g., 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, Exec.
Order 14010, 86 FR 8267, 8270 (Feb. 2, 2021); The White House, Los
Angeles Declaration on Migration and Protection (June 10, 2022),
https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/; The
White House, Fact Sheet: U.S.-Mexico High-Level Security Dialogue
(Oct. 8, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/08/fact-sheet-u-s-mexico-high-level-security-dialogue/; U.S. Dep't of State, Fact Sheet: Third Meeting of the
U.S.-Mexico High-Level Security Dialogue (Oct. 13, 2023), https://www.state.gov/third-meeting-of-the-u-s-mexico-high-level-security-dialogue/.
\303\ See The White House, Fact Sheet: Third Ministerial Meeting
on the Los Angeles Declaration On Migration and Protection in
Guatemala (May 7, 2024),
---------------------------------------------------------------------------
This international coordination has yielded important results. A
number of foreign partners, including Mexico, Panama, and Colombia,
announced significantly enhanced efforts to enforce their borders in
the days leading up to the end of the Title 42 public health
Order.\304\ These governments recognized that the United States was
taking measures to strengthen border enforcement, specifically through
application of the Circumvention of Lawful Pathways rule along with
other complementary measures, and committed to taking their own actions
to address irregular migratory flows in the region.\305\ Additionally,
immediately prior to the transition from DHS processing under the Title
42 public health Order to processing under title 8 authorities, the
Government of Mexico announced that it had independently decided to
accept the return into Mexico of nationals from CHNV countries under
title 8 processes.\306\ However, in the intervening months, Mexico and
other partners' resources have been significantly strained by sustained
high encounter levels, and at different times enforcement by our
partners has been disrupted, leading to surges at our own border.\307\
---------------------------------------------------------------------------
\304\ Kathia Mart[iacute]nez, US, Panama and Colombia Aim to
Stop Darien Gap Migration, AP News (Apr. 11, 2023), https://apnews.com/article/darien-gap-panama-colombia-us-migrants-cf0cd1e9de2119208c9af186e53e09b7; Camilo Montoya-Galvez, Mexico Will
Increase Efforts To Stop U.S.-Bound Migrants as Title 42 Ends, U.S.
Officials Say, CBS News (May 10, 2023), https://www.cbsnews.com/news/title-42-end-border-mexico-efforts-us-bound-migrants/.
\305\ 88 FR at 31444.
\306\ See The White House, Mexico and United States Strengthen
Joint Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/; DHS, Fact Sheet: Data From First Six Months of Parole
Processes for Cubans, Haitians, Nicaraguans, and Venezuelans Shows
that Lawful Pathways Work (July 25, 2023), https://www.dhs.gov/news/2023/07/25/fact-sheet-data-first-six-months-parole-processes-cubans-haitians-nicaraguans-and.
\307\ See Charles G. Ripley III, Crisis Prompts Record
Emigration from Nicaragua, Surpassing Cold War Era, Migration Pol'y
Inst. (Mar. 7, 2023), https://www.migrationpolicy.org/article/record-emigration-nicaragua-crisis; James Fredrick, Mexico Feels
Pressure of Relentless Migration from South America, N.Y. Times
(Sept. 21, 2023) (``Similar scenes are playing out across the
country as Mexico's immigration system strains under a tide of
people desperately trying to go north. The relentless surge has led
to a hodgepodge response in Mexico ranging from shutting down
railways heading north to the busing of people to areas with fewer
migrants.''); Megan Janetsky & Javier C[oacute]rdoba, Central
America scrambles as the international community fails to find
solution to record migration, AP News (Oct. 20, 2023), https://apnews.com/article/costa-rica-migration-darien-gap-biden-420e2d1219d403d7feec6463a6e9cdae (noting the resources pull
migration flows place on certain Central American countries);
Mar[iacute]a Verza, Mexico halts deportations and migrant transfers
citing lack of funds, AP News (Dec. 4, 2023), https://apnews.com/article/mexico-immigration-migrants-venezuela-17615ace23d0677bb443d8386e254fbc (observing that the ``head of
Mexico's immigration agency . . . ordered the suspension of migrant
deportations and transfers due to a lack of funds''); Valerie
Gonzalez & Elliot Spagat, The US sees a drop in illegal border
crossings after Mexico increases enforcement, AP News (Jan. 7,
2024), https://apnews.com/article/mexico-immigration-enforcement-crossings-drop-b67022cf0853dca95a8e0799bb99b68a (noting the
disruption in enforcement that resulted from Mexico's lack of
funding and quoting Andrew Selee, President of the Migration Policy
Institute, as saying that ``[t]he U.S. is able to lean on Mexico for
a short-term enforcement effect at the border, but the long-term
effects are not always clear'').
---------------------------------------------------------------------------
In public messaging, the Government of Mexico linked its decision
to accept return into Mexico of CHNV nationals to the success of the
CHNV parole processes framework under the Title 42 public health
Order,\308\ which combined expansion of lawful pathways and processes
for nationals of these countries with a meaningful consequence
framework, and which reduced irregular border crossings.\309\
Sustaining and, as appropriate, ramping up efforts to improve border
security and stem arrivals to the southern border is a critical element
of the United States' ongoing diplomatic approach to migration
management with partners in the region. This has been a key component
of our diplomacy, as regional partner countries have regularly
encouraged DHS to take steps to address migratory flows, including by
channeling intending migrants into expanded lawful pathways and
processes. For example, following the development of the parole process
for Venezuelans announced in October 2022--an approach that was
subsequently expanded to include processes for Cuban, Haitian, and
Nicaraguan nationals in January 2023--regional partners urged the
United States to continue building on this approach, which imposed
consequences for irregular migration alongside the availability of a
lawful, safe, and orderly process for migrants to travel directly to
the United States.\310\ Following the announcement of the Venezuela
parole process in October 2022 and the subsequent announcement of the
Cuba, Haiti, and Nicaragua parole processes in January 2023, migration
flows through the region and at the U.S.-Mexico border slowed. See 88
FR at 31317 (``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.'').
---------------------------------------------------------------------------
\308\ See Gobierno de M[eacute]xico, M[eacute]xico y Estados
Unidos fortalecen Plan Humanitario Conjunto sobre Migraci[oacute]n
(May 2, 2023), https://www.gob.mx/presidencia/prensa/mexico-y-estados-unidos-fortalecen-plan-humanitario-conjunto-sobre-migracion?state=published (characterizing the effort of the
Government of Mexico as a successful joint initiative and expressing
the Government's commitment to continue to accept migrants back into
Mexico on humanitarian grounds).
\309\ See id. (describing a significant reduction in irregular
migration following the implementation of CHNV parole processes,
which pair an expansion of lawful pathways with consequences for
irregular migration).
\310\ See 88 FR at 31444; The White House, Mexico and United
States Strengthen Joint Humanitarian Plan on Migration (May 2,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
---------------------------------------------------------------------------
The United States has continued to build on this historic expansion
of lawful pathways and processes, which include the humanitarian parole
processes for CHNV nationals; \311\ efforts to expand labor pathways
and dedicate a set number of visas to nationals of countries in the
hemisphere; \312\ the implementation of new Family Reunification Parole
(``FRP'') processes for certain nationals of Colombia, Ecuador, El
Salvador, Guatemala, and Honduras; and the modernization of FRP
processes for certain nationals of Cuba and Haiti.\313\
---------------------------------------------------------------------------
\311\ See USCIS, Processes for Cubans, Haitians, Nicaraguans,
and Venezuelans (Sept. 20, 2023), https://www.uscis.gov/CHNV.
\312\ See DHS & U.S. Dep't of Labor, Temporary Rule--Exercise of
Time-Limited Authority To Increase the Numerical Limitation for FY
2024 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 88 FR 80394 (Nov. 17, 2023).
\313\ DHS, DHS Modernizes Cuban and Haitian Family Reunification
Parole Processes (Aug. 10, 2023), https://www.dhs.gov/news/2023/08/10/dhs-modernizes-cuban-and-haitian-family-reunification-parole-processes.
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[[Page 48761]]
Concurrently, the Governments of Colombia and Panama have made
significant efforts to combat smuggling networks operating on both
sides of the Dari[eacute]n Gap.\314\ The Government of Mexico has
likewise increased enforcement along its southern border and the
transit routes north.\315\ These enforcement campaigns have been
implemented at substantial cost for those governments and, as with
United States Government actions, reflect our shared regional
responsibility to manage migration.\316\
---------------------------------------------------------------------------
\314\ See Kathia Mart[iacute]nez, US, Panama, and Colombia aim
to stop Darien Gap migration, AP News (Apr. 11, 2023), https://apnews.com/article/darien-gap-panama-colombia-us-migrants-cf0cd1e9de2119208c9af186e53e09b7; Juan Zamorano & Christopher
Sherman, Explainer: Panama launches operation against smugglers in
Darien Gap, AP News (June 3, 2023), https://apnews.com/article/panama-colombia-darien-gap-migrants-d0ec93c4d4ddc91f34e31c704b4cf8ae.
\315\ See, e.g., Associated Press, U.S. Border Arrests Decline
Amid Increased Enforcement in Mexico, NPR (Apr. 13, 2024), https://www.npr.org/2024/04/13/1244590706/mexico-border-arrests-fall-march
(``Mexico detained migrants 240,000 times in the first two months of
the year, more than triple from the same period of 2023, sending
many deeper south into the country to discourage them from coming to
the United States. While Mexico hasn't released figures for March,
U.S. officials have said Mexican enforcement is largely responsible
for recent declines.'').
\316\ See, e.g., The White House, Press Release, Mexico and
United States Strengthen Joint Humanitarian Plan on Migration (May
2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
---------------------------------------------------------------------------
Given the particular challenges facing the United States and its
regional partners at this moment, the Departments assess that it is
critical that the United States continue to lead the way in responding
to ever-changing and increasing migratory flows, and that this
regulatory effort and the Presidential Proclamation--and the strong
consequences they will impose at the border--will send an important
message to the region that the United States is prepared to put in
place appropriate measures to prepare for and, if necessary, respond to
ongoing migratory challenges.
In addition to this IFR's clear and direct involvement in foreign
affairs, the Departments believe that conducting a notice-and-comment
process and providing a delayed effective date on this rule likely
would lead to a surge to the border before the Departments could
finalize the rule, which would adversely impact the United States'
foreign policy priorities. Prior to the end of the Title 42 public
health Order, regional partners expressed great concern about the
misperception that the end of the Order would mean an open U.S. border
and result in a surge of irregular migration flowing through their
countries as migrants sought to enter the United States. See 88 FR at
31444. One foreign partner, for example, expressed the strong concern
that the formation of caravans during the spring of 2022 was spurred by
rumors--and the subsequent official announcement--of the anticipated
end of the Title 42 public health Order. See id. This view is
consistent with the views of other regional partner countries that have
repeatedly emphasized the ways in which U.S. policy announcements have
a direct and immediate impact on migratory flows through their
countries. See id. Such effects are precisely the kind of ``definitely
undesirable international consequences'' that the Departments seek to
avoid.
The surge about which many foreign leaders were concerned happened
sooner than expected. In the weeks leading up to the lifting of the
Title 42 public health Order, hemispheric migration spiked. Entries
into the Dari[eacute]n jungle by migrants staged in Colombia began
increasing in the months leading up to May 12, 2023, from a little more
than 24,600 in January 2023, to more than 40,000 in April 2023
immediately before the Order lifted.\317\ And as described more fully
above, total CBP encounters at the SWB increased to then-record levels
in the days immediately preceding May 12, 2023, a situation that was
fueled by noncitizens seeking to enter the United States before new
policies were put into effect, as well as by smuggling organizations
that disseminated misinformation.\318\ The scale of regional migration
in those weeks strained the immigration processes of all the affected
countries, including those of the United States.
---------------------------------------------------------------------------
\317\ See Servicio Nacional de Migraci[oacute]n Panam[aacute],
Estadisicas, Tr[aacute]nsito Irregular por Dari[eacute]n 2023,
https://www.migracion.gob.pa/inicio/estadisticas.
\318\ See Valerie Gonzalez, Migrants rush across US border in
final hours before Title 42 expires, AP News (May 11, 2023), https://apnews.com/article/immigration-border-title-42-mexico-asylum-8c239766c2cb6e257c0220413b8e9cf9 (noting that ``[m]any migrants were
acutely aware of looming policy changes as they searched Thursday
for an opportunity to turn themselves over to U.S. immigration
authorities before the 11:59 EDT deadline . . . [and] [e]ven as
migrants were racing to reach U.S. soil before the rules expire,
Mexican President Andr[eacute]s Manuel L[oacute]pez Obrador said
smugglers were sending a different message . . . [and] offering to
take migrants to the United States and telling them the border was
open starting Thursday'').
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As noted above, the United States saw a similar scale of migration
at the end of 2023. The surge in December 2023 led the United States
Government and the Government of Mexico to hold a series of engagements
at the highest levels--including between the countries' Presidents and
Cabinet Members--to address the shared challenge of migration
confronting both countries.\319\ These conversations included
commitments by both governments to continue to expand efforts to
coordinate enforcement actions on both sides of the border.\320\
January, February, and March are typically slower months, but since
these engagements, and the joint operational actions that resulted,
there has been a decrease in USBP encounters at the border, as
discussed in Section III.B.1 of this preamble.
---------------------------------------------------------------------------
\319\ See supra Section III.B.1 of this preamble.
\320\ See, e.g., White House, Readout of Homeland Security
Advisor Dr. Liz Sherwood-Randall's Trip to Mexico (Feb. 7, 2024),
https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/07/readout-of-homeland-security-advisor-dr-liz-sherwood-randalls-trip-to-mexico/; Amna Nawaz, Mexico's foreign secretary discusses
what her country is doing to ease border crisis, PBS News Hour (Ja