Application of Certain Mandatory Bars in Fear Screenings, 103370-103414 [2024-29617]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103370-103414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29617]



[[Page 103369]]

Vol. 89

Wednesday,

No. 243

December 18, 2024

Part V





 Department of Homeland Security





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8 CFR Part 208





 Application of Certain Mandatory Bars in Fear Screenings; Final Rule

Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 / 
Rules and Regulations

[[Page 103370]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2776-24; DHS Docket No. USCIS-2024-0005]
RIN 1615-AC91


Application of Certain Mandatory Bars in Fear Screenings

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS or Department) is 
amending its regulations to allow asylum officers (AOs) to consider the 
potential applicability of certain bars to asylum and statutory 
withholding of removal during credible fear and reasonable fear 
screenings, including credible fear screenings where the Circumvention 
of Lawful Pathways or Securing the Border rules apply. The rule is 
intended to enhance operational flexibility and help DHS more swiftly 
remove certain noncitizens who are barred from asylum and statutory 
withholding of removal.

DATES: This final rule is effective January 17, 2025.

FOR FURTHER INFORMATION CONTACT: 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).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Legal Authority
III. Provisions of the Final Rule
IV. Response to Public Comments on the Proposed Rule
    A. Summary of Comments on the Proposed Rule
    B. General Feedback on the Proposed Rule
    1. General Support for the Proposed Rule
    C. Legal Authority and Background
    1. DHS Legal Authority
    2. DHS's Justification, Background, and Statements on the Need 
for the Rule
    3. Other/General Comments on Legal Authority and Background
    D. Proposed Application of Mandatory Bars
    1. Noncitizens in Credible Fear Screenings (8 CFR 208.30)
    2. Noncitizens Subject to Circumvention of Lawful Pathways 
Presumption of Ineligibility, Statutory Withholding Screen (8 CFR 
208.33)
    3. Inclusion of Specific Bars (e.g., Particularly Serious Crimes 
Bar, Security Bar)
    4. Exclusion of Specific Bars (e.g., ``Firm Resettlement Bar,'' 
INA Secs. 208(a)(2), (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2), 
(b)(2)(A)(vi))
    5. Exclusion of CAT Screenings (Withholding of Removal) (8 CFR 
208.30(e)(3), 208.33(b)(2)(i))
    6. Other/General Comments on the Application of Bars
    7. Screening Procedures, AO Determinations, Immigration Judge 
Review of Negative Fear Determinations (e.g., Discretionary vs. 
Requirement, Guidance, Cases Where Bars Are Outcome-Determinative)
    8. Burden of Proof
    9. Other General/Mixed Feedback and Suggested Alternatives
    E. Other Issues Relating to the Rule
    1. Coordination With DOJ in the Rulemaking
    2. Security Bars and Processing Rulemaking
    3. Out of Scope Comments
    F. Statutory and Regulatory Requirements
    1. Administrative Procedure Act
    2. Regulatory Impact Analysis Impacts and Benefits (E.O. 12866 
and E.O. 13563)
    3. Paperwork Reduction Act (e.g., Comments on Forms and Burden 
Estimates)
    4. Other/General Comments on Statutory and Regulatory 
Requirements (e.g., Unfunded Mandates Reform Act, Federalism, Civil 
Justice Reform, Family Assessment, Indian Tribal Governments, 
Protection of Children from Environmental Health and Safety Risks, 
National Environmental Policy Act)
    5. Out of Scope
V. Statutory and Regulatory Requirements
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Regulatory Flexibility Act (RFA)
    C. Unfunded Mandates Reform Act of 1995 (UMRA)
    D. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Family Assessment
    H. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    I. Executive Order 13045 (Protection of Children From 
Environmental Health Risks and Safety Risks)
    J. National Environmental Policy Act (NEPA)
    K. Paperwork Reduction Act (PRA)

I. Background

A. Mandatory Bars NPRM

    On May 13, 2024, DHS issued a notice of proposed rulemaking (NPRM) 
that proposed to allow AOs to consider the potential applicability of 
certain bars to asylum and statutory withholding of removal during 
certain credible and reasonable fear screenings. Application of Certain 
Mandatory Bars in Fear Screenings, 89 FR 41347 (May 13, 2024). 
Following careful consideration of public comments received, the 
Department has not made substantive modifications to the regulatory 
text proposed in the NPRM, 89 FR 41347 (May 13, 2024), but has made 
clarifying amendments. The rationale and the reasoning provided in the 
proposed rule preamble remain valid, except where a new or supplemental 
rationale is reflected in this Final Rule.

B. Securing the Border

    After DHS issued the NPRM, on June 3, 2024, the President signed 
Presidential Proclamation 10773, Securing the Border, 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 were unduly strained, the entry into the United States of 
certain categories of noncitizens was detrimental to the interests of 
the United States, and suspending and limiting the entry of such 
noncitizens. 89 FR 48487, 48487-91 (June 7, 2024) (``June 3 
Proclamation''). The June 3 Proclamation directed DHS and DOJ to 
promptly consider issuing any 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.'' 89 FR at 48491 (sec. 3(d)).
    DHS and DOJ subsequently published an Interim Final Rule (IFR) on 
June 7, 2024, during the comment period of this rule, to implement the 
policies and objectives of the June 3 Proclamation. 89 FR 48710 (June 
7, 2024) (Securing the Border IFR). The Securing the Border IFR 
effectuated three key changes to the process for those noncitizens who 
are encountered at the southern border during the emergency border 
circumstances giving rise to the suspension and limitation on entry 
under the June 3 Proclamation: (1) adding a limitation on asylum 
eligibility; (2) rather than asking specific questions of every 
noncitizen encountered and processed for expedited removal, providing 
general notice regarding the process for seeking asylum and related 
protection and referring 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; and (3) for those found not to have a credible fear 
of persecution for

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asylum purposes because of the IFR's limitation on asylum eligibility, 
screening for statutory withholding of removal and CAT protection under 
a ``reasonable probability'' standard. Id. at 48718. In the credible 
fear screening context, if there is not a significant possibility that 
the noncitizen could demonstrate that the limitation on asylum 
eligibility does not apply to them or could demonstrate by a 
preponderance of the evidence that they are eligible for an exception 
to the limitation (i.e., there is not a significant possibility that 
the noncitizen could establish eligibility for asylum), the AO will 
enter a negative credible fear determination with respect to the 
noncitizen's asylum claim. 8 CFR 208.35(b)(1). The AO then screens the 
noncitizen for statutory withholding of removal and protection under 
CAT by determining whether there is a reasonable probability the 
noncitizen would face persecution or torture in the country (or 
countries) of removal. 8 CFR 208.35(b)(2). The reasonable probability 
standard is defined as ``substantially more than a `reasonable 
possibility' but somewhat less than more likely than not.'' 8 CFR 
208.35(b)(2)(i).
    On September 27, 2024, the President issued a proclamation amending 
the June 3 Proclamation. 89 FR 80351 (Oct. 2, 2024) (September 27 
Proclamation). The September 27 Proclamation amended the calculations 
for when the suspension and limitation on entry established in the June 
3 Proclamation would be discontinued, continued, or reactivated. Id. On 
October 7, 2024, the Departments published a final rule responding to 
public comments on the IFR and implementing changes that parallel those 
made in the September 27 Proclamation. Securing the Border Final Rule, 
89 FR 81156 (Oct. 7, 2024) (Securing the Border final rule).\1\
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    \1\ This rule refers generally to the ``Securing the Border 
rule'' when it is not necessary to specify between the Securing the 
Border IFR or Securing the Border final rule.
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II. Legal Authority

    The Secretary of Homeland Security's (Secretary) authority for this 
rule is found in various provisions of the Immigration and Nationality 
Act (INA), 8 U.S.C. 1101 et seq., as amended by the Homeland Security 
Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, as amended. The 
INA 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 the President or other agencies. INA sec. 103(a)(1), 8 
U.S.C. 1103(a)(1). The INA also authorizes the Secretary to establish 
regulations and take other actions ``necessary for carrying out'' the 
Secretary's authority to administer and enforce the immigration laws. 
INA secs. 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); see also 6 
U.S.C. 202 (authorities of the Secretary), 271(a)(3) (conferring 
authority on U.S. Citizenship and Immigration Services (USCIS) Director 
to establish ``policies for performing [immigration adjudication] 
functions'').
    Under the INA, DHS has authority to adjudicate asylum applications 
and to conduct credible fear interviews, make credible fear 
determinations in the context of expedited removal, and to establish 
procedures for further consideration of asylum applications after an 
individual is found to have a credible fear. INA sec. 103(a)(1), 
(a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA sec. 208(b)(1)(A), (d)(1), 
(d)(5)(B), 8 U.S.C. 1158(b)(1)(A), (d)(1), (d)(5)(B); INA sec. 
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 the Commissioner of Immigration and 
Naturalization's functions relating to adjudication of asylum and 
refugee applications to the Director of the Bureau of Citizenship and 
Immigration Services, now USCIS); 6 U.S.C. 557 (providing that 
references to any officer from whom functions are transferred under the 
HSA are to be understood as referring to the Secretary of Homeland 
Security). Within DHS, the Secretary has delegated some of those 
authorities to the Director of USCIS. USCIS AOs conduct credible fear 
interviews, make credible fear determinations, and determine whether a 
noncitizen's \2\ asylum application should be granted, all of which are 
subject to review by a supervisory AO. See DHS, Delegation to the 
Bureau of Citizenship and Immigration Services, No. 0150.1 (June 5, 
2003); 8 CFR 208.2(a), 208.9, 208.14(b), 208.30(b), (e)(6)(i), (e)(8).
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    \2\ For purposes of this preamble, DHS uses the term 
``noncitizen'' to be synonymous with the term ``alien'' as it is 
used in the INA. See INA sec. 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 INA also authorizes the Secretary and Attorney General to 
publish regulatory amendments governing their respective roles 
regarding inspection and admission, detention and removal, withholding 
of removal, and deferral of removal. See INA secs. 235, 236, 241, 8 
U.S.C. 1225, 1226, 1231.
    The United States is a party to the 1967 Protocol Relating to the 
Status of Refugees, January 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the 
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33 of 
the Refugee Convention 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.'' Id.
    Congress has implemented U.S. non-refoulement obligations under the 
1967 Protocol through the INA, as amended by the Refugee Act of 1980, 
Public Law 96-212, 94 Stat. 102, extending the form of protection from 
removal now known as statutory withholding of removal. See INA sec. 
241(b)(3), 8 U.S.C. 1231(b)(3) (formerly 8 U.S.C. 1253(h) (1952)); see 
also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 174-77 (1993) 
(describing the history of the statutory withholding provision and the 
Refugee Act amendments). 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), which provides that a noncitizen may not be 
removed to a country where their life or freedom would be threatened 
because of one of the protected grounds listed in Article 33 of the 
Refugee Convention. See INA sec. 241(b)(3), 8 U.S.C. 1231(b)(3), 8 CFR 
208.16, 1208.16; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 429-30 
(1987) (discussing the statutory precursor to section 241(b)(3) of the 
INA--former section 243(h), 8 U.S.C. 1253(h) (1952)); INS v. Stevic, 
467 U.S. 407, 414-22 (1984) (same). 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 sec. 103(a)(1) and (3), (g)(1) and (2), 8 U.S.C. 1103(a)(1) and 
(3), (g)(1) and (2).
    DHS and DOJ also have authority to implement U.S. obligations under 
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, December 10, 1984, S. Treaty Doc. 
No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 
20, 1994) (CAT). The Foreign Affairs Reform and Restructuring Act of 
1998 (FARRA) provides the Secretary with the authority to ``prescribe 
regulations to implement the obligations of the United

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States under Article 3 of the [CAT], subject to any reservations, 
understandings, declarations, and provisos contained in the United 
States Senate resolution of ratification of the Convention.'' Public 
Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 
1231 note). DHS and DOJ have implemented U.S. obligations under Article 
3 of the CAT in their respective immigration regulations, consistent 
with FARRA. See, e.g., 8 CFR 208.16(c) through 208.18, 1208.16(c) 
through 1208.18; 64 FR 8478 (Feb. 19, 1999) (``Regulations Concerning 
the Convention Against Torture''), as corrected by 64 FR 13881 (Mar. 
23, 1999).
    Overall, this rule is authorized because Congress has conferred 
upon the Secretary express rulemaking power to create certain 
procedures for screening for and adjudicating asylum claims. INA sec. 
103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA sec. 208(b)(1)(A), 
(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B); INA 
sec. 235(b)(1), 8 U.S.C. 1225(b)(1).

III. Provisions of the Final Rule and Revisions From the NPRM

    The rule amends provisions at 8 CFR 208.30(e), 208.31, and 
208.33(b) that effectuate the following changes to the credible fear 
and reasonable fear screening procedures:
     The rule provides AOs the discretion to consider mandatory 
bars to asylum under INA sec. 208(b)(2)(A)(i)-(v), 8 U.S.C. 
1158(b)(2)(A)(i)-(v) or to statutory withholding of removal under INA 
sec. 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B) (mandatory bars) in credible 
fear screenings if the AO finds the noncitizen is able to establish a 
credible fear of persecution but not a credible fear of torture.
     The rule provides that when the mandatory bars are 
considered, the AO will find a noncitizen to have a credible fear of 
persecution if there is a significant possibility that the noncitizen 
can establish eligibility for asylum or withholding of removal, 
including the AO's determination that no bar applies or will be applied 
by the AO in that case.
     The rule allows AOs to enter a negative credible fear 
finding with regard to the noncitizen's eligibility for asylum or 
withholding of removal under INA sec. 208, 8 U.S.C. 1158, INA sec. 
241(b)(3), 8 U.S.C. 1231(b)(3), or 8 CFR 208.16(c) if the AO determines 
there is not a significant possibility the noncitizen would be able to 
establish by a preponderance of the evidence that the mandatory bars do 
not apply.
     The rule provides AOs the discretion to consider mandatory 
bars when conducting credible fear screenings under the additional 
procedures in 8 CFR 208.33(b)(2).
     The rule provides that DHS will issue a Form I-862, Notice 
to Appear, if an AO conducting a credible fear screening under the 
additional procedures in 8 CFR 208.33(b)(2) determines that the 
noncitizen established a reasonable possibility of persecution with 
respect to the identified country or countries of removal and, to the 
extent bars were considered, that there is a reasonable possibility 
that none of the mandatory bars apply, or if the noncitizen established 
a reasonable possibility of torture.
     The rule provides that an AO will enter a negative 
credible fear determination when conducting a credible fear screening 
under the additional procedures in 8 CFR 208.33(b)(2) if the AO 
determines that the noncitizen failed to show a reasonable possibility 
that a mandatory bar does not apply and was unable to demonstrate a 
reasonable possibility of torture.
     The rule provides AOs the discretion to consider mandatory 
bars to statutory withholding of removal under INA sec. 241(b)(3)(B), 8 
U.S.C. 1231(b)(3)(B), in reasonable fear screenings.
     The rule provides that, if an AO considers the mandatory 
bars to statutory withholding of removal under INA sec. 241(b)(3)(B), 8 
U.S.C. 1231(b)(3)(B), a noncitizen will be found to have a reasonable 
fear of persecution if there is a reasonable possibility that the 
noncitizen would be persecuted on account of their race, religion, 
nationality, membership in a particular social group or political 
opinion, and the noncitizen has established a reasonable possibility 
that no bar applies.\3\
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    \3\ As described in the NPRM, this rule makes a non-substantive 
change to 8 CFR 208.31(g) and replaces the last sentence of 8 CFR 
208.31(g) and paragraphs (g)(1)-(2). 89 FR at 41355 n.39. Because 
those provisions describe the procedures for immigration judge 
review of an AO's reasonable fear finding and are duplicative with 
the corresponding provision governing immigration court procedures 
at 8 CFR 1208.31(g), they are not needed in the DHS regulations in 
chapter I of title 8 of the CFR. Accordingly, this rule replaces 
those provisions in 8 CFR 208.31(g) with a short statement that 
informs the reader that the immigration judge review procedures are 
set forth at 8 CFR 1208.31(g).
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    This Final Rule makes the following clarifying edits to the 
regulatory text proposed in the NPRM:
     The rule adds the phrase ``in a proceeding on the merits'' 
to 8 CFR 208.30(e)(5)(ii)(A) and (B) to clarify how AOs will apply in 
credible fear screenings the ``significant possibility'' standard with 
respect to mandatory bars to asylum and statutory withholding of 
removal, that is, by determining whether there is a significant 
possibility that, in a proceeding on the merits, the noncitizen would 
be able to establish by a preponderance of the evidence that such 
bar(s) do not apply.
     The rule removes the phrase ``persecution or'' from the 
last sentence of 8 CFR 208.31(c) to clarify that the sentence concerns 
``reasonable fear of torture'' only, as ``reasonable fear of 
persecution'' is defined earlier in the paragraph.

IV. Response to Public Comments on the Proposed Rule

A. Summary of Comments on the Proposed Rule

    In response to the proposed rule, DHS received 4,293 comments 
during the 30-day public comment period. Approximately 3,864 of the 
comments were letters submitted through mass mailing campaigns, and 297 
comments were unique submissions. Primarily, individuals and anonymous 
entities submitted comments, as did multiple advocacy groups and legal 
services providers. Other commenters included attorneys, religious and 
community organizations, elected officials, and research and 
educational institutions, among others.
    Comments received during the 30-day comment period are organized by 
topic below. DHS reviewed the public comments received in response to 
the proposed rule and addresses relevant comments in this Final Rule, 
grouped by subject area. DHS does not address comments seeking changes 
in U.S. laws, regulations, or agency policies that are unrelated to the 
changes made by this rule. This Final Rule does not resolve issues that 
are outside the scope of this rulemaking. A brief summary of comments 
DHS deemed to be out of scope or unrelated to this rulemaking, making a 
substantive response unnecessary, is provided at the end of the 
section. Comments may be reviewed at https://www.regulations.gov, 
docket number USCIS-2024-0005.
    Following careful consideration of public comments received, DHS in 
this Final Rule has not made substantive modifications to the 
regulatory text proposed in the NPRM but has made clarifying edits as 
described in Part III above. The rationale for the proposed rule and 
the reasoning provided in the background section of that rule remain 
valid with respect to the regulatory

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amendments made by this Final Rule, except where a new or supplemental 
rationale is reflected in this Final Rule.

B. General Feedback on the Proposed Rule

1. General Support for the Proposed Rule
a. Positive or Minimal Impacts on Noncitizens and Their Support Systems
    Comment: A commenter said that the proposed rule would not increase 
the risk of erroneous denials, stating that most of the people 
requesting asylum are economic migrants.
    Response: DHS appreciates the commenter's support for the rule and 
agrees that the rule will not increase the risk of erroneous 
determinations. DHS believes the rule will result in AOs issuing 
negative fear determinations in certain cases where there is evidence 
that a mandatory bar applies to a noncitizen, there is a lack of 
evidence that the bar should not be applied (e.g., due to an exception 
to the bar or the application of an exemption to the bar, such as an 
exemption applied pursuant to INA sec. 212(d)(3)(B)(i), 8 U.S.C. 
1182(d)(3)(B)(i)) and the noncitizen is not otherwise able to establish 
a positive fear of torture at the applicable standard. The rule will 
provide the Department greater flexibility to quickly screen out 
noncitizens with non-meritorious protection claims and swiftly remove 
noncitizens who present a national security or public safety concern. 
The Department does not otherwise rely on the commenter's assertion--
that most people requesting asylum are economic migrants--as a 
justification for the rule.
b. Positive Impacts on Immigration System and Government Operations and 
Resources
    Comment: Some commenters expressed support for the proposed rule 
and were concerned about abuse of the asylum system. These commenters 
expressed concern about fraudulent asylum claims and high levels of 
unlawful entry. These commenters also believe that noncitizens are 
exploiting the immigration processes and that application of the 
mandatory bars at the screening stage will eliminate removal delays. 
One commenter stated that AOs are capable of assessing mandatory bars 
at the credible fear stage and that AOs are well-trained in asylum law. 
One comment supported the proposed rule, agreeing that it will help 
avoid unnecessary detention of noncitizens and enhance public safety.
    Response: DHS appreciates the commenters' support for the rule. DHS 
believes it is appropriate to authorize additional procedures by which 
to deliver swift decisions on non-meritorious claims and consequences 
for irregular migration,\4\ rather than allowing ineligible individuals 
to further tax limited resources. DHS agrees that AOs are highly 
capable of assessing mandatory bars at the credible fear screening 
stage, as well as the reasonable fear screening stage, based on their 
specialized training in asylum law, including in applying mandatory 
bars.\5\
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    \4\ In this preamble, ``irregular migration'' refers to the 
movement of people into another country without authorization.
    \5\ See, e.g., USCIS, ``RAIO Directorate--Officer Training: 
Mandatory Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer 
Training: Definition of Persecution and Eligibility Based on Past 
Persecution'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer 
Training: Nexus and the Protected Grounds'' (Apr. 24, 2024); USCIS, 
``RAIO Directorate--Officer Training: Well-Founded Fear'' (Apr. 24, 
2024).
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    DHS agrees with the commenter that the rule will help avoid 
unnecessary detention and enhance public safety by prioritizing the 
speedy removal of noncitizens who may pose security threats. 
Noncitizens who may have otherwise remained in detention throughout the 
immigration court process for a full adjudication on the merits of 
their claim, despite the existence of easily verifiable evidence 
showing that they would be subject to a mandatory bar, will be quickly 
removed, thereby conserving the government's detention capacity.
2. General Opposition to the Proposed Rule
a. Conflicts With Humanitarian Values
    Comment: Numerous commenters expressed concerns that the rule 
conflicts with humanitarian values. These commenters asserted that U.S. 
immigration policy should embody the values of compassion and 
humanitarianism and affirm the right to asylum and that the rule does 
not do so. These commenters stated that the rule would violate the 
international and universal right to safety and asylum. These 
commenters also stated that the rule is immoral and contrary to U.S. 
values, as they believe it would return asylum seekers to countries 
without meaningful protection and where they would still be in harm's 
way. These commenters believe the rule would contradict the United 
States' long-standing history of welcoming immigrants and supporting 
the international asylum system. Several commenters believe the 
proposed rule would have negative impacts on asylum seekers who are at 
risk of persecution in their home countries and have experienced 
hardships to reach the border. Another commenter stated that the 
proposed rule undermines the current asylum system and could send 
noncitizens with legitimate asylum claims back to danger. A few 
commenters said that the right to seek asylum is crucial to the safety 
and justice of all people, and that the immigration system should be 
more welcoming instead of limiting asylum access. Other commenters 
remarked that the asylum system needs to be reformed to make it fair 
and just because denying asylum could endanger those who are seeking 
safety. Another commenter stated that people do not willingly leave 
their homes and family to seek asylum. Some commenters believe that 
U.S. policies have created the conditions in other countries that force 
individuals to flee from their homes. Some commenters believe that 
deterrence policies and detention of noncitizens seeking asylum is 
immoral and that the rule is based on racism and xenophobia. One 
commenter believes the rule would serve more as a barrier to asylum 
than as a measure to protect U.S. national security.
    Response: DHS disagrees with these commenters' claims concerning 
the rule. This rule focuses on enhancing DHS's ability to swiftly 
remove noncitizens who are ineligible for asylum and statutory 
withholding of removal and are enforcement priorities: those who 
present a threat to national security or public safety, while 
maintaining DHS's authority to create and implement safe, orderly, and 
humane migration pathways. As explained in the NPRM, the population to 
which this rule will apply is likely to be relatively small, as 
informed by the number of cases identified as potentially implicating 
mandatory bars that are flagged by USCIS during screenings.\6\ The U.S. 
government has implemented, and will continue to implement, a number of 
measures designed to enhance and expand lawful pathways and processes 
for noncitizens seeking to enter the United States, including to seek 
asylum. Examples of lawful pathways include: the Uniting for Ukraine 
process, which allows Ukrainian nationals to receive humanitarian 
parole into the United States, enabling them to travel by air to the 
United States and be resettled; \7\ the multilateral Safe Mobility 
initiative, currently operating in Colombia, Costa Rica, Ecuador, and 
Guatemala, which

[[Page 103374]]

provides access to information and education about other lawful 
pathways to the United States and partner countries, local integration, 
and, for eligible individuals, expedited refugee processing to the 
United States; \8\ the new processes for up to 30,000 Cuban, Haitian, 
Nicaraguan, and Venezuelan (CHNV) nationals per month to apply for 
advance authorization to seek parole into the United States, enabling 
them to travel by air to the United States; \9\ and country-specific 
family reunification parole processes for certain nationals of 
Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, and Honduras 
who have U.S. citizen relatives in the United States.\10\ DHS and its 
interagency partners have also increased H-2B nonimmigrant visa 
availability \11\ and refugee processing for countries within the 
Western Hemisphere.\12\ Noncitizens who do not avail themselves of 
these pathways can schedule an appointment through the Customs and 
Border Protection (CBP) One app, a scheduling tool used by noncitizens 
to present themselves at a southwest land border port of entry (POE) 
\13\ The use of the CBP One app for scheduling has contributed to U.S. 
Customs and Border Protection's efforts to expand its southwest border 
POE migrant processing capacity well beyond the 2010-2016 daily POE 
average,\14\ resulting in increased access for noncitizens to POEs.
---------------------------------------------------------------------------

    \6\ 89 FR 41347, 41351-52 (May 13, 2024).
    \7\ See U.S. Citizenship and Immigration Services, Uniting for 
Ukraine, https://www.uscis.gov/ukraine (last visited Sept. 25, 
2024).
    \8\ U.S. Dep't of State, Safe Mobility Initiative, https://www.state.gov/refugeeadmissions/safe-mobility-initiative (last 
visited Aug. 23, 2024); The White House, Fact Sheet: Biden-Harris 
Administration on World Refugee Day Celebrates a Rebuilt U.S. 
Refugee Admissions Program, June 20, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/ (last visited 
Aug. 29, 2024).
    \9\ See U.S. Citizenship and Immigration Services, Processes for 
Cubans, Haitians, Nicaraguans, and Venezuelans, https://www.uscis.gov/CHNV (last visited Sept. 25, 2024).
    \10\ See generally U.S. Citizenship and Immigration Services, 
Family Reunification Parole Processes, https://www.uscis.gov/FRP 
(last visited Aug. 23, 2024).
    \11\ See, e.g., 88 FR 80394 (Nov. 17, 2023) (authorizing up to 
64,716 additional H-2B nonimmigrant visas for Fiscal year 2024).
    \12\ See Memorandum on Presidential Determination on Refugee 
Admission for Fiscal Year 2024, Presidential Determination No. 2023-
13 (Sept. 29, 2023) (providing for the admission of 35,000-50,000 
refugees from the Latin America/Caribbean region to the United 
States during Fiscal Year (FY) 2024); Memorandum on Presidential 
Determination on Refugee Admission for Fiscal Year 2025, 
Presidential Determination No. 2024-13 (Sept. 30, 2024) (providing 
for the admission of 35,000-50,000 refugees from the Latin America/
Caribbean region to the United States during FY 2025).
    \13\ See CBP, ``CBP OneTM Mobile Application,'' 
https://www.cbp.gov/about/mobile-apps-directory/cbpone (last visited 
Aug. 14, 2024).
    \14\ See CBP STAT Division, ``U.S. Customs and Border Protection 
(CBP) Enforcement Encounters--Southwest Border (SBO), Office of 
Field Operations (OFO) Daily Average'' (internal data report, 
retrieved Apr. 13, 2023).
---------------------------------------------------------------------------

b. Due Process Concerns
    Comment: Many commenters expressed general due process concerns. 
Commenters stated that individual due process protections are critical 
and that, under the proposed rule, DHS would undermine or abandon due 
process in order to expedite the asylum process. Commenters stated that 
to alleviate due process concerns, the Department should refrain from 
implementing the rule.
    Response: The Department disagrees with these commenters' claims 
concerning due process. This rule does not affect the provisions that 
address who DHS may refer for a credible fear screening or reasonable 
fear screening. See INA sec. 235(b)(1)(A)(ii), 8 U.S.C. 
1225(b)(1)(A)(ii), 8 CFR 235.3(b)(4), 8 CFR 235.15(b)(4), 208.30(b), 
and 208.31(b). This rule does not impinge noncitizens' statutory right 
to representation in the credible and reasonable fear processes. See, 
e.g., 8 CFR 208.30(d)(4),8 CFR 208.31(c), 8 CFR 235.15(b)(4)(i)(B). 
Additionally, noncitizens in credible fear may continue to consult with 
persons of their choosing. 8 CFR 208.30(d)(4); 8 CFR 
235.15(b)(4)(i)(B). Further, the rule does not alter the preexisting 
rights or opportunities for noncitizens in credible or reasonable fear 
proceedings to seek immigration judge review of negative credible fear 
or reasonable fear determinations. See 8 CFR 208.30(g)(1), 208.31(g), 
208.33(b)(2), 208.35(b)(2) 1003.42, 1208.31(g), 1208.33(b). 
Accordingly, the rule preserves noncitizens' process rights as provided 
in the INA. See DHS v. Thuraissigiam, 591 U.S. 103, 140 (2022) 
(reaffirming that noncitizens who arrive at U.S. ports of entry or are 
encountered shortly after unlawfully crossing the U.S. border and are 
placed in expedited removal proceedings, including those in the 
credible fear screening process, have ``only those rights regarding 
admission that Congress has provided by statute'').
    Comment: Many commenters expressed concerns regarding access to 
legal counsel under the proposed rule. Commenters voiced concerns that 
the rule would inhibit access to legal counsel. Commenters noted that 
the credible fear process occurs shortly after individuals reach the 
United States, and they lack access to an attorney or have experienced 
trauma. Commenters also noted that individuals in the asylum process 
need sufficient time to find legal counsel and that as a result of the 
proposed rule, individuals would not be able to pass the initial 
credible fear screening and would be removed before even being able to 
secure legal representation. Some commenters pointed to the low 
representation rates of detained asylum seekers stemming from the 
reliance on telephone access from remote detention facilities to obtain 
counsel and the rapid timelines associated with screening 
determinations. Commenters believe that attempts to provide legal 
representation to detained individuals in screenings have been 
compromised or obstructed. A commenter said that it is hard to 
establish a credible fear of persecution and some noncitizens are not 
prepared to address the nuances asked of them in screenings; thus, they 
need lawyers to help them understand the law. Several commenters 
remarked on the particular need for access to counsel if AOs were to 
consider mandatory bars because challenging the applicability of a bar 
would be difficult without an attorney. A commenter stated that every 
noncitizen whose case is flagged with a possible mandatory bar should 
be notified of their right to counsel and allowed time to secure an 
attorney, and contrasted the reported difficulty of securing an 
attorney during the expedited removal process with the relative ease of 
doing so in section 240 removal proceedings.
    Response: The Department disagrees with the commenters' claims that 
this rule inhibits access to counsel. As an initial matter, because 
this rule does not alter procedures governing consultation or 
representation, commenters' concerns regarding those issues are outside 
the scope of this rulemaking. Procedures regarding consultation and 
representation are governed by other DHS regulations, guidance, and 
policies. See 8 CFR 235.3(b)(4)(ii); 208.30(d)(4), 8 CFR 208.31(c).
    This rule does not amend the pre-existing rights of noncitizens 
regarding their rights to representation during fear screenings. 
Specifically, during credible fear screenings, the INA provides that a 
noncitizen ``may consult with a person or persons of the [noncitizen]'s 
choosing prior to the interview or any review thereof, according to 
regulations prescribed by the Attorney General,'' provided that 
``[s]uch consultation shall be at no expense to the Government and 
shall not unreasonably delay the process.'' INA 235(b)(1)(B)(iv), 8 
U.S.C. 1225(b)(1)(B)(iv). This statutory right to consult does not 
attach until a noncitizen becomes eligible for a

[[Page 103375]]

credible fear interview, and it does not guarantee an absolute right to 
retain counsel. See id. The credible fear review regulations further 
provide that a noncitizen ``may consult with a person or persons of the 
[noncitizen's] choosing prior to the interview or any review thereof,'' 
``[s]uch consultation shall be at no expense to the Government and 
shall not unreasonably delay the process,'' and that the person(s) with 
whom the noncitizen consulted ``may be present at the interview and may 
be permitted, in the discretion of the asylum officer, to present a 
statement at the end of the interview.'' 8 CFR 208.30(d)(4). During the 
reasonable fear screening process, individuals may be represented by an 
attorney or an accredited representative at no cost to the government.
    Individuals who may be subject to a mandatory bar will have the 
opportunity to show that the bar does not apply during the screening 
interview. Credible fear and reasonable fear screening determinations 
are based on non-adversarial interviews that occur in an expedited 
manner, such that the scope of representation is necessarily limited 
when compared to a lengthy adversarial hearing before EOIR. In addition 
to substantive training on applying mandatory bars, AOs receive 
training and have practical experience conducting non-adversarial 
interviews, eliciting testimony, working with interpreters, cross-
cultural communication, and working with vulnerable populations.\15\ 
AOs regularly assess the mandatory bars in affirmative asylum 
adjudications and asylum merits interviews (AMIs); therefore, it is not 
unusual for AOs to consider these issues. Accordingly, AOs are well-
suited in a screening interview to develop the record regarding a 
potential mandatory bar and to ensure the noncitizen has an opportunity 
to provide evidence as to why a given bar does not apply at the 
appropriate standard of proof. Moreover, all credible fear and 
reasonable fear determinations are reviewed by a supervisory AO for 
procedural and substantive accuracy and completeness before becoming 
final.\16\ DHS also believes that the non-adversarial nature of 
credible fear and reasonable fear screenings, in contrast with 
adversarial section 240 removal proceedings, sufficiently mitigates the 
commenters' concerns about the more compressed timeframe noncitizens 
have to secure an attorney during the expedited removal process, and 
challenges of accessing counsel in detention.
---------------------------------------------------------------------------

    \15\ See USCIS, RAIO Directorate--Officer Training: Mandatory 
Bars (May 9, 2013); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Apr. 24, 2024); USCIS, RAIO Directorate--
Officer Training: Interviewing--Working with an Interpreter (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Cross-Cultural 
Communication and Other Factors That May Impede Communication at an 
Interview (Apr. 24, 2024); USCIS, RAIO Directorate--Officer 
Training: Interviewing Survivors of Torture and Other Severe Trauma 
(Apr. 24, 2024).
    \16\ See 8 CFR 208.30(e)(8); see also Memorandum for the Record, 
from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations 
Directorate, USCIS, Re: Asylum Division Training, Staffing, 
Capacity, and Credible Fear Procedures (Sept. 26, 2024).
---------------------------------------------------------------------------

    Finally, DHS disagrees that the consideration of mandatory bars is 
categorically more complex than the consideration of the full array of 
issues that are currently presented in screening cases on a routine 
basis. For example, determining whether a noncitizen's testimony is 
credible, whether harm experienced or feared was or would be inflicted 
on account of a protected ground, or whether torture feared would be 
inflicted with the consent or acquiescence of a person acting in an 
official capacity are all potentially complex issues that AOs regularly 
consider and analyze in fear screenings. As such, and in view of AOs' 
training and experience previously described, the Department does not 
agree that a noncitizen's ability to obtain counsel for such an 
interview presents new or greater concerns than those presented by a 
screening interview where mandatory bars are not considered.
    Comment: A commenter expressed concern that AOs would rely on 
evidence such as Interpol Red Notices issued by authoritarian regimes 
as a basis for considering the applicability of bars.
    Response: The Department has implemented measures to combat the 
impact of abusive or unwarranted INTERPOL notices separate and apart 
from this rule. For example, DHS has issued internal guidance on the 
appropriate handling of INTERPOL notices that are suspected of having 
been issued by a country for the purpose of persecuting an individual 
or otherwise appear to be prohibited or noncompliant.
    Comment: A few commenters expressed concern regarding the ability 
to collect and present evidence during credible fear screenings. The 
commenters stated that the inability to compile evidence would 
adversely impact noncitizens, as they would not be able to gather 
evidence disputing the application of a bar. Commenters stated that 
consideration of the bars to asylum and statutory withholding of 
removal in credible fear or reasonable fear interviews does not afford 
an asylum seeker the opportunity to present the extensive evidence 
needed to rebut a finding that one of the asylum bars applies. 
Commenters stated that the expedited removal process does not afford 
sufficient opportunity for noncitizens to gather the evidence needed to 
demonstrate a bar does not apply to them and that the rule would 
require noncitizens to understand highly complex bars to eligibility 
that newly arriving people cannot be expected to understand. Commenters 
asserted that often, the evidence these bars apply comes from 
unverified or difficult-to-verify sources. Several commenters opposed 
the proposed rule on the basis that detained noncitizens in expedited 
removal proceedings would have difficulty discussing or adequately 
defending themselves against the application of mandatory bars because 
of the effect of trauma resulting from past harm or their journey to 
the United States, hunger, and linguistic or cultural barriers.
    Response: The Department disagrees that this rule would negatively 
impact noncitizens in this manner. AOs have a duty to elicit all 
relevant and useful information on a fear claim. See, e.g., 8 CFR 
208.30(d). Credible testimony alone may be the basis of a positive fear 
determination without the need for any corroborative documentary 
evidence. Where an AO exercises discretion to consider a mandatory bar 
in a fear screening, the AO will provide the noncitizen with an 
opportunity to present evidence that the bar does not apply, and 
credible testimony alone may be sufficient evidence to make that 
showing. As noted above, AOs have training and experience in the 
substantive application of mandatory bars and in non-adversarial 
interviewing and eliciting testimony and are therefore well-positioned 
to develop and evaluate the record in such cases, including weighing 
the reliability and probative value of available evidence.\17\ Further, 
all credible fear and reasonable fear determinations undergo 
supervisory review prior to service.
---------------------------------------------------------------------------

    \17\ See USCIS, RAIO Directorate--Officer Training: Mandatory 
Bars (May 9, 2013); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Apr. 24, 2024).
---------------------------------------------------------------------------

    Noncitizens undergoing fear screenings where a bar is considered 
would be able to demonstrate that the bar does not apply at the 
relevant standard. For example, in credible fear under 8 CFR 208.30, a 
noncitizen must

[[Page 103376]]

demonstrate that there is a significant possibility that they could 
establish that the bar does not apply by a preponderance of evidence at 
a future proceeding. Similarly, noncitizens would need to establish a 
reasonable possibility that the bar does not apply in credible fear 
screenings under 8 CFR 208.33, or in reasonable fear screenings under 8 
CFR 208.31, and noncitizens need to establish a reasonable probability 
that the bar does not apply in credible fear screenings conducted under 
8 CFR 208.35. The screening standards themselves ensure a fair process 
in that the noncitizen need only meet the significant possibility, 
reasonable possibility, or reasonable probability standard in order to 
pass through the screening process. These standards, which are either 
lower or the same as the standards that apply in full adjudications of 
asylum and statutory withholding of removal requests, do not require 
the presentation of the same extent of evidence that would be needed in 
a full merits hearing or interview. Furthermore, this rule does not 
create a complicated process requiring full evidence gathering and 
determinations to be made on possible bars to eligibility. Rather, AOs 
will only consider a bar in those cases where there is easily 
verifiable (as opposed to unverified or difficult-to-verify) evidence 
available to the AO that, in their discretion, warrants an inquiry into 
a bar, and the AO can consider that bar efficiently at the screening 
stage. AOs are trained to elicit all relevant testimony in a non-
adversarial manner \18\ to ensure noncitizens have a fair opportunity 
to provide any evidence necessary to evaluate their claim, which under 
this rule may include the applicability of any bars or the availability 
of any exceptions or exemptions.
---------------------------------------------------------------------------

    \18\ See USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony'' (Dec. 20, 2019).
---------------------------------------------------------------------------

    DHS rejects the notion that it is categorically more difficult for 
a noncitizen to discuss issues surrounding mandatory bars than it is to 
discuss other issues that are already the subject of screening 
interviews. AOs are trained to work with noncitizens who are 
experiencing the effects of trauma and to communicate across cultural 
and linguistic barriers.\19\ AOs routinely interview noncitizens in 
protection screening interviews on matters that many find challenging 
to discuss, including torture, sexual assault, familial violence, and 
the deaths of family members.
---------------------------------------------------------------------------

    \19\ See USCIS, ``RAIO Directorate--Officer Training: Cross-
Cultural Communication and Other Factors That May Impede 
Communication at an Interview'' (Apr. 24, 2024); USCIS, ``RAIO 
Directorate--Officer Training: Interviewing Survivors of Torture and 
Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------

    The permissive nature of the rule is also well-tailored to a 
situation where the noncitizen is unable to testify in depth due to the 
effects of trauma, or a situation where the noncitizen may be better 
able to provide evidence that a mandatory bar does not apply to them in 
a full hearing. As explained in the proposed rule, AOs should only 
apply a mandatory bar in a screening interview where there is ``easily 
verifiable information'' that the bar may apply, and even then, to only 
do so if the inquiry can be done efficiently. 89 FR at 41354. Should 
the AO determine that the issue would be better considered at a later 
stage, they retain the discretion under this proposed rule to decline 
to consider mandatory bars during the screening determination.
    Comment: Many commenters expressed concerns regarding the 
application of mandatory bars by AOs and officer discretion, 
emphasizing that the application of the bars is complex, and asserting 
that immigration judges--not AOs--should evaluate the complex legal 
issues associated with the application of the mandatory bars. Several 
commenters noted that bars to asylum and statutory withholding of 
removal can involve complex factual and legal inquiries, with some 
pointing out that DHS itself, in a prior rulemaking removing bars from 
consideration in credible fear screenings, concluded that such a 
``fact-intensive inquiry requiring complex legal analysis [] would be 
more appropriate in a full adjudication before an asylum officer or in 
section 240 proceedings with the availability of judicial review than 
in credible fear screenings.'' 87 FR 18078, 18093 (Mar. 29, 2022) 
(``Asylum Processing IFR''). Commenters argued that DHS's 
representation that AOs would consider bars only in those cases where 
there is easily verifiable evidence available to the AO that in their 
discretion warrants an inquiry into a bar and where the AO is confident 
that they can consider that bar efficiently is insufficient given the 
complexity of this area of the law.
    Commenters stated that the bars could be applied incorrectly, 
arbitrarily, or unfairly, endangering individuals. Commenters also 
stated that the application of bars may be based on evidence from 
foreign entities, which U.S. immigration officials cannot independently 
verify and which may be inaccurate. Commenters stated that noncitizens 
in credible and reasonable fear processes should be subject to the same 
rules and that individuals are entitled to a transparent, humane 
process. Commenters also stated that AOs could be more likely to issue 
negative determinations of credible fear as a result of the proposed 
rule, especially if they do not listen to a noncitizen fully or fairly.
    A few commenters discussed officer bias or misconduct during the 
screening process. Commenters stated that, according to a complaint 
filed with the DHS Office for Civil Rights and Civil Liberties, AOs 
scheduled credible fear interviews without notifying the attorney of 
the interview; incorrectly applied standards when evaluating claims; 
used adversarial interview techniques on individuals; subjected 
noncitizens to interviews in languages in which they are not fluent; 
and failed to provide noncitizens with appropriate language 
interpreters. Commenters stated that there would be no mechanisms for 
upholding accountability under the proposed rule. Other commenters 
stated that the proposed rule would yield an asylum process that is 
less consistent and transparent, in part because of the discretion with 
which AOs would ask questions, and the lack of consistency and 
transparency would thwart efforts to monitor the process.
    A commenter asserted that the rule would confuse the role of AOs 
during the screening process with that of a final adjudicator. 
According to the commenter, although the proposed rule may purport to 
avoid adverse outcomes by making the application of the bars at the 
fear screening stage discretionary instead of mandatory, the 
distinction would be negligible.
    Response: The Department disagrees with the claim that only 
immigration judges, not both immigration judges and AOs, should 
evaluate or apply the mandatory bars. DHS also rejects the notion that 
the consideration of mandatory bars is categorically more complex than 
the consideration of the full array of issues that AOs address on a 
routine basis. AOs regularly assess the mandatory bars in affirmative 
asylum adjudications and asylum merits interviews (AMIs); therefore, it 
is not unusual for AOs to consider these issues.\20\
---------------------------------------------------------------------------

    \20\ As noted in the NPRM, see 89 FR at 41353 n.30, DHS has long 
applied in the expedited removal process the ``safe-third-country'' 
bar to eligibility to apply for asylum at INA 208(a)(2)(A), 8 U.S.C. 
1158(a)(2)(A). See 8 CFR 208.30(e)(6).
---------------------------------------------------------------------------

    The Department also rejects the assertion that the rule should not 
be implemented due to potential officer bias or misconduct in the 
interview and

[[Page 103377]]

lack of accountability through the process. AOs are capable of 
conducting thorough screening interviews, applying the mandatory bars 
when applicable, and maintaining fairness throughout the process, as is 
required by their role.\21\ AOs are well trained in asylum law, and all 
credible fear and reasonable fear determinations are reviewed by a 
supervisory asylum officer (SAO) for accuracy and legal 
sufficiency.\22\ As explained above, AOs receive training in and have 
experience in non-adversarial interviewing and eliciting testimony, in 
addition to substantive training on applying mandatory bars and 
experience applying mandatory bars in full asylum adjudications.\23\
---------------------------------------------------------------------------

    \21\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory 
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony (Apr. 24, 2024); USCIS, ``RAIO 
Directorate--Officer Training: Interviewing--Working with an 
Interpreter'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer 
Training: Cross-Cultural Communication and Other Factors That May 
Impede Communication at an Interview'' (Apr. 24, 2024).
    \22\ See 8 CFR 208.30(e)(8); see also Memorandum for the Record, 
from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations 
Directorate, USCIS, Re: Asylum Division Training, Staffing, 
Capacity, and Credible Fear Procedures (Sept. 26, 2024).
    \23\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory 
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony (Apr. 24, 2024); USCIS, ``RAIO 
Directorate--Officer Training: Interviewing--Working with an 
Interpreter'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer 
Training: Cross-Cultural Communication and Other Factors That May 
Impede Communication at an Interview'' (Apr. 24, 2024); USCIS, 
``RAIO Directorate--Officer Training: Interviewing Survivors of 
Torture and Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------

    The Department also rejects the claim that this new process will 
confuse the role of the AO with a final adjudicator. At the start of 
the screening interview, the AO will introduce themselves and explain 
the interview process so as to avoid confusion about roles or 
procedures. Noncitizens are also provided with an information sheet on 
the credible or reasonable fear process that explains the purpose and 
nature of the screening interview, including possible outcomes and what 
to expect following the interview. In addition, making a determination 
regarding a mandatory bar, when considered, does not make an AO any 
more or less of a final adjudicator than making a determination 
regarding substantive eligibility, as is currently done and is 
unaffected by this rule.
    Furthermore, the Department disagrees with the claims that, as a 
result of the complexity of analyzing the mandatory bars, AOs may apply 
the bars incorrectly or unfairly. Considering the training and 
experience AOs possess, they are well-suited to exercise discretion to 
apply mandatory bars in the screening context and, where evidence 
related to a mandatory bar is too complex to be fully explored in the 
screening context, to exercise their discretion not to apply the bar in 
the screening determination. AOs will continue to issue positive fear 
determinations where a noncitizen demonstrates a credible or reasonable 
fear at the applicable screening standard, even where there may be 
indicia of a mandatory bar but the available evidence at the screening 
stage as to the bar or any available exception or exemption is limited.
    DHS acknowledges that properly analyzing bars to asylum and 
statutory withholding of removal can involve complicated, extensive 
factfinding and legal analysis. Furthermore, some aspects of this area 
of law remain unsettled, and different courts have come to different 
conclusions on certain legal questions related to these bars. USCIS 
Asylum Officers must follow precedent Board of Immigration Appeals 
(BIA) and Attorney General decisions, except when they have been 
modified or overruled by subsequent decisions of the BIA or the 
Attorney General, or there is a conflicting published opinion on the 
issue by the U.S. Supreme Court or by the U.S. Court of Appeals with 
jurisdiction over the matter.\24\ It is not the case that the 
considerations relating to legal analysis hold true in every case in 
which a mandatory bar arises. For example, a noncitizen who claims to 
fear persecution by the government of Colombia on account of political 
opinion, but who credibly testifies to being a current member of the 
Revolutionary Armed Forces of Colombia--People's Army, would clearly be 
barred from both asylum and withholding of removal pursuant to INA sec. 
208(b)(2)(A)(v), 8 U.S.C. 1158(b)(2)(A)(v) and INA sec. 241(b)(3)(B), 8 
U.S.C. 1231(b)(3)(B), as a current member of a designated foreign 
terrorist organization,\25\ regardless of whether the noncitizen could 
demonstrate they are a refugee or would be persecuted on account of a 
protected ground if returned to Colombia. DHS disagrees that AOs should 
be categorically foreclosed from determining there is no significant 
possibility or reasonable possibility such an individual could 
establish eligibility for these forms of relief or protection in a full 
merits hearing. This rule allows, but does not require, an AO 
encountering such a scenario to consider the applicable bar in a fear 
screening and to enter a negative determination with regard to the 
noncitizen's eligibility for asylum or statutory withholding of 
removal, preventing the noncitizen from entering a potentially years-
long immigration court process in pursuit of relief for which they are 
ineligible and allowing DHS and EOIR resources that would have been 
expended on such processes to be conserved for potentially meritorious 
cases.
---------------------------------------------------------------------------

    \24\ See 8 CFR 103.10(b), 1003.1(g); see also USCIS, ``RAIO 
Directorate--Officer Training: Reading and Using Case Law'' 14 
(April 24, 2024).
    \25\ See INA secs. 212(a)(3)(B)(i)(V), 237(a)(4)(B), 8 U.S.C. 
1182(a)(3)(B)(i)(V), 1227(a)(4)(B); see also 86 FR 68294 (Dec. 1, 
2021).
---------------------------------------------------------------------------

    Comment: Many commenters expressed concerns with AOs considering 
mandatory bars during the fear screening stage, instead of immigration 
judges during section 240 removal proceedings. Commenters stated that 
applying mandatory bars at the credible fear screening stage would 
preclude individuals from a full hearing that would provide them the 
opportunity to prepare their cases, present witnesses and evidence, and 
allow a court to determine the true nature of foreign convictions, 
which are often a part of the persecution that the noncitizen 
experienced in their home country for voicing dissent against an 
authoritarian government. Commenters stated these decisions should be 
made by immigration judges and that individuals should be able to 
appear before an immigration judge or have a fair hearing, be it at the 
onset of seeking status in the United States or when trying to overturn 
an order of removal. Commenters asserted that eliminating hearings at 
an earlier stage would deny noncitizens who have strong or pressing 
cases and that the proposed rule would increase negative determinations 
in credible fear and expedited removals.
    Several commenters additionally discussed the accuracy of negative 
credible fear determinations, stating that negative credible fear 
determinations are often dismissed or reversed after review by an 
immigration judge. A commenter referenced multiple examples when courts 
have questioned the reliability and value afforded to credible fear 
interviews, reasoning that rulings or removal orders have been 
overturned in part because of unreliable information elicited during 
the interviews. According to the commenter, the proposed rule would 
restrict asylum by placing even greater value on screenings that are 
already

[[Page 103378]]

unreliable, and the bars would be applied without the safeguards 
afforded by section 240 removal proceedings. The commenter further 
stated that both the Biden and Trump administrations have distanced 
credible fear interviews from the low screening standard framed by 
Congress.
    Response: The Department disagrees with the claim that the 
mandatory bars should only be considered during section 240 removal 
proceedings before an immigration judge. As discussed above, AOs 
receive training in and have experience in non-adversarial interviewing 
and eliciting testimony, in addition to substantive training on 
applying mandatory bars and experience applying mandatory bars in full 
asylum adjudications.\26\
---------------------------------------------------------------------------

    \26\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory 
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony (Apr. 24, 2024); USCIS, ``RAIO 
Directorate--Officer Training: Interviewing--Working with an 
Interpreter'' (Apr. 24, 2024); USCIS, ``RAIO Directorate--Officer 
Training: Cross-Cultural Communication and Other Factors That May 
Impede Communication at an Interview'' (Apr. 24, 2024); USCIS, 
``RAIO Directorate--Officer Training: Interviewing Survivors of 
Torture and Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------

    In addition, the Department disagrees that applying the bars 
earlier would preclude noncitizens from fully presenting their case 
compared to if the bars were only applied in a subsequent section 240 
removal proceeding. Where evidence related to a mandatory bar is too 
complex to be fully explored in the screening context or where there is 
additional evidence that the noncitizen may not be subject to the bar 
because of an exception or exemption, AOs may exercise their discretion 
not to apply the mandatory bar in the screening determination. In those 
cases, if the noncitizen establishes a fear of persecution or torture 
at the applicable standard, the AO will issue a positive determination 
so that the bar may be further explored by the immigration judge. Where 
there is evidence available to the AO that triggers an inquiry into an 
applicable mandatory bar, and the AO determines that they can address 
that bar efficiently at the credible fear or reasonable fear interview, 
then the AO will give the noncitizen the opportunity to establish, at 
the relevant standard, that the bar would not apply. The Department 
believes this discretion will ensure that application of the mandatory 
bars in fear screenings only occurs in cases where USCIS can 
effectively and accurately apply the bar without creating 
inefficiencies or frustrating the streamlined nature of the screening 
process. This rule will allow AOs to, in their discretion, consider 
bars in the issuance of negative fear determinations only in certain 
cases where there is sufficient, easily verifiable evidence that a bar 
applies to a noncitizen, there is a lack of evidence that no bar 
applies or shall be applied, and the noncitizen is not otherwise able 
to establish a positive fear of torture at the applicable standard.
    Finally, the Department disagrees with comments that question the 
accuracy and reliability of the screening interviews and determinations 
and the claim that this rule will restrict asylum. AOs are trained to 
conduct thorough, fair, and non-adversarial interviews, and AOs play an 
integral role in the credible fear and reasonable fear screening 
process. Regarding immigration judge review of AOs' credible fear or 
reasonable fear determinations, DHS notes that immigration judges have 
the authority to conduct de novo review of negative credible fear and 
reasonable fear determinations. 8 CFR 1003.42; 8 CFR 1208.31(g). 
Otherwise, the procedures for immigration judge decisions vacating 
screening determinations are outside the scope of this rulemaking.
    Comment: Several commenters objected to the proposed rule on the 
basis that the rule would curtail the avenues for review of application 
of the mandatory bars. While the noncitizen would be able to seek 
review of an AO's negative determination by an immigration judge, they 
would not be able to appeal the immigration judge's decision to the 
Board of Immigration Appeals (BIA) or the Federal Court system. 
Commenters also stated the rule forecloses judicial review.
    Commenters wrote that the rule's provisions for immigration judge 
review provide insufficient protections against erroneous negative 
screening determinations and raise due process concerns. One commenter 
indicated immigration judges, who frequently do not cite any law in 
their fear review denials, do not have time to devote to in-depth 
analysis with an additional layer of complexity added to hearings. A 
commenter stated that AOs' credible fear determinations would be 
reversed more frequently if immigration judge review included basic due 
process protections, such as access to counsel. Another stated 
noncitizens might not know that immigration judge review of negative 
fear determination is available unless an AO tells them.
    Response: Negative screening determinations of all types are 
subject to review by an immigration judge. See 8 CFR 208.30(g)(1), 
208.31(g), 208.33(b)(2), 208.35(b)(2). Should an immigration judge make 
a negative credible fear determination, no appeal of that determination 
is available. See 8 CFR 1003.42(f)(2), 8 CFR 1208.31(g)(1). Nothing in 
the proposed rule alters these procedures, although the rule would 
allow AOs to base a negative determination on the application of a 
mandatory bar.
    The comments that the rule forecloses review of negative 
determinations are incorrect, as the regulations establish procedures 
for referring negative determinations for review by an immigration 
judge. Noncitizens are provided written notification of their right to 
request an immigration judge's review of the AO's credible fear 
determination. 8 CFR 235.3(b)(4)(i)(C). Where a noncitizen is issued a 
negative credible fear determination, they are served by asylum office 
staff with one of the following forms: Form I-869, Record of Negative 
Credible Fear Finding and Request for Review by Immigration Judge 
(where the negative credible fear determination is issued pursuant to 
208.30); Form I-869B, Record of Negative Credible Fear and Reasonable 
Possibility Finding and Request for Review by Immigration Judge for 
Noncitizens Subject to the Condition on Asylum Eligibility Pursuant to 
8 CFR 208.33(a); or Form I-869SB, Record of Negative Credible Fear and 
Reasonable Probability Finding and Request for Review by Immigration 
Judge for Noncitizens Subject to the Limitation on Asylum Eligibility 
Pursuant to 8 CFR 208.35(a). In all negative determinations, the form 
is read to the noncitizen aloud at service of the decision in a 
language they understand (via an interpreter if necessary) and includes 
an explanation of the noncitizen's right to request immigration judge 
review of the negative determination, pursuant to 8 CFR 208.30(g)(1), 
208.33(b)(2)(iii), or 208.35(b)(2)(iii).\27\ The noncitizen selects on 
the Form I-869, Form I-869B, or Form I-869SB, whether they request 
immigration judge review of the negative determination and signs the 
form, which also includes the signature of the interpreter, where 
applicable (or where the interpretation was via a USCIS telephonic 
contract interpreter, the interpreter ID number is recorded).\28\

[[Page 103379]]

An immigration officer who refers a noncitizen subject to expedited 
removal to an AO for a credible fear interview will provide the 
noncitizen with a written disclosure describing, among other things, 
the right to request a review by an immigration judge of the AO's 
credible fear determination. 8 CFR 235.3(b)(4)(i).
---------------------------------------------------------------------------

    \27\ See Memorandum for the Record, from Ted Kim, Assoc. Dir., 
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum 
Division Training, Staffing, Capacity, and Credible Fear Procedures 
(Sept. 26, 2024).
    \28\ See Memorandum for the Record, from Ted Kim, Assoc. Dir., 
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum 
Division Training, Staffing, Capacity, and Credible Fear Procedures 
(Sept. 26, 2024).
---------------------------------------------------------------------------

    Where a noncitizen is issued a negative reasonable fear 
determination, they are served by asylum office staff with a Form I-
898, Record of Negative Reasonable Fear Finding and Request for Review 
by Immigration Judge, which is read to them aloud in a language they 
understand (via an interpreter if necessary) and includes an 
explanation of the noncitizen's right to request immigration judge 
review of the negative determination, pursuant to 8 CFR 208.31(f)-(g). 
The noncitizen selects on the Form I-898 whether they request 
immigration judge review and signs the form, which also includes the 
signature of the interpreter, where applicable (or where the 
interpretation was via a USCIS telephonic contract interpreter, the 
interpreter ID number is recorded).\29\
---------------------------------------------------------------------------

    \29\ See USCIS, ``Reasonable Fear Procedures Manual,'' Section 
III, https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf.
---------------------------------------------------------------------------

    DHS disagrees with the commenters stating that the rule's 
provisions for immigration judge review are inadequate to ensure that 
sufficient procedural safeguards are provided or protect against 
erroneous screening determinations. Immigration judges are familiar 
with applying bars to asylum and statutory withholding of removal, as 
well as the applicable standards of proof involved in both fear 
screenings and full merits adjudications of asylum, statutory 
withholding of removal, and protection under the CAT.\30\ As discussed 
above, multiple provisions in title 8 of the Code of Federal 
Regulations provide notice of the right to access counsel.\31\
---------------------------------------------------------------------------

    \30\ See 8 CFR 1208.13(c); 1208.16(b); 1208.16(c);1208.16(d)(2); 
1208.30(c)(2); 1208.30(g)(2); 1208.31(c); and 1208.31(g).
    \31\ See, e.g., 8 CFR 1240.10(a)(1)-(2), 1240.11(c)(1)(iii), 
1240.17(f)(1), 1240.32(a), 1240.48(a).
---------------------------------------------------------------------------

    Furthermore, review of negative credible fear determinations is 
limited under INA sec. 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to the 
review by an immigration judge previously described, so DHS has no 
authority to create additional mechanisms for a noncitizen to appeal a 
credible fear determination made during the expedited removal process 
pursuant to INA sec. 235(b), 8 U.S.C. 1225(b).\32\ DHS acknowledges 
that, before this rule, mandatory bars were only applied during a full 
adjudication of the noncitizen's application for asylum or withholding 
of removal, and any such decision on a bar was subject to review by 
both the BIA and the relevant Federal court. See 8 CFR 1003.1(b)(3), 
INA sec. 242, 8 U.S.C. 1252. Under this rule, however, noncitizens who 
receive negative credible fear determinations solely because of the 
applicability of a bar and who have those determinations affirmed by an 
immigration judge will be removed. However, as discussed elsewhere in 
this preamble, the Department considers the safeguards in place 
sufficient to ensure against erroneous removals, and the benefits of 
allowing DHS and EOIR resources that would have been expended on 
potentially years-long immigration court processes involving 
noncitizens pursuing relief for which they are ineligible to be 
conserved for potentially meritorious cases outweigh the loss to this 
small population of noncitizens of these additional avenues for appeal 
or review.
---------------------------------------------------------------------------

    \32\ INA sec. 242(a)(2)(A), 8 U.S.C. 1252(a)(2)(A).
---------------------------------------------------------------------------

    As mentioned above, DHS rejects the suggestion in these comments 
that determinations based on mandatory bars are categorically more 
complex as a factual or legal matter than other issues routinely 
decided in screening interviews and subject to these same review 
provisions.
    Comment: Commenters stated that noncitizens would be denied 
protections at the border and could be unjustly removed; lack of 
transparency would leave no way to assess whether the process would 
lead to erroneous removals; and an expedited removal process would rush 
individuals through credible fear interviews that unfairly require 
individuals to disclose personal information about fear or trauma to 
officials and without the presence of an attorney. In line with the 
above remarks, a commenter encouraged DHS to retain current due process 
protections to prevent the erroneous return of people to countries 
where their lives would be threatened.
    Response: The Department acknowledges the concern relating to the 
possibility for erroneous removals but assesses the possibility to be 
rare. AOs are trained in asylum law and are well-suited to apply 
mandatory bars in the screening context in their discretion and, where 
evidence related to a mandatory bar is limited or unavailable, or 
analysis would be too complex to be fully explored in the screening 
context, to exercise their discretion not to apply the bar in the 
screening determination. AOs will continue to issue positive fear 
determinations where a noncitizen demonstrates a credible or reasonable 
fear at the applicable screening standard, even where there may be 
indicia of a mandatory bar but the available evidence at the screening 
stage as to the mandatory bar or available exceptions or exemptions is 
limited. Retaining this discretion will safeguard against erroneous 
applications of the mandatory bars. In addition to substantive training 
on analyzing mandatory bars, AOs are trained to conduct non-adversarial 
interviews, to elicit testimony, and to work with interpreters.\33\ The 
Department also rejects the assertion that noncitizens will be unfairly 
required to disclose trauma and will not have access to counsel. AOs 
are trained to work with noncitizens who are experiencing the effects 
of trauma and to communicate across cultural and linguistic 
barriers.\34\ AOs routinely interview noncitizens during protection 
screening interviews involving sensitive matters that many may find 
challenging to discuss, including torture, sexual assault, familial 
violence, and the deaths of family members. Additionally, noncitizens 
in the credible and reasonable fear processes may be represented by an 
attorney at no cost to the government. 8 CFR 208.30(d)(4), 8 CFR 
208.31(c). Finally, noncitizens in credible fear may consult with 
persons of their choosing. 8 CFR 208.30(d)(4).
---------------------------------------------------------------------------

    \33\ See USCIS, ``RAIO Directorate--Officer Training: Cross-
Cultural Communication and Other Factors That May Impede 
Communication at an Interview'' (Apr. 24, 2024); USCIS, ``RAIO 
Directorate--Officer Training: Interviewing Survivors of Torture and 
Other Severe Trauma'' (Apr. 24, 2024).
    \34\ See USCIS, ``RAIO Directorate--Officer Training: Cross-
Cultural Communication and Other Factors That May Impede 
Communication at an Interview'' (Apr. 24, 2024); USCIS, ``RAIO 
Directorate--Officer Training: Interviewing Survivors of Torture and 
Other Severe Trauma'' (Apr. 24, 2024).
---------------------------------------------------------------------------

    By their nature, the application of the mandatory bars may result 
in the possible removal of noncitizens to countries where they fear 
harm. This is consistent with both domestic law and international 
standards identified in section II of this preamble. DHS also notes 
that nothing in the rule would affect protections available to 
noncitizens under regulations implementing U.S. obligations under 
Article 3 of the CAT.
    Comment: Commenters asserted that language access issues in 
general, and particularly for speakers of rare or indigenous languages, 
impede

[[Page 103380]]

noncitizens' ability to demonstrate a bar does not apply to them.
    Response: 8 CFR 208.30(d)(5) requires AOs to provide for the 
assistance of an interpreter in credible fear interviews where the 
noncitizen is unable to effectively proceed in English and the AO is 
unable to proceed competently in a language the noncitizen speaks and 
understands. 8 CFR 208.31(c) imposes the same requirement for 
reasonable fear interviews. Furthermore, USCIS has developed a language 
access plan to ensure that limited English proficient individuals have 
meaningful access to the agency's services and information.\35\ USCIS 
has also issued guidance to AOs on providing language access in 
credible fear interviews.\36\ This guidance provides for situations 
where the AO is unable to communicate with the noncitizen because their 
preferred language is not serviced by an asylum interpreter contract 
and, if applicable, the noncitizen does not agree to proceed with the 
credible fear interview in another language for which the AO confirms 
understanding. In such a situation, the Asylum Office issues a Form I-
862, Notice to Appear (NTA), and refers the noncitizen to removal 
proceedings without making a credible fear determination in such 
situations. DHS is confident these measures are sufficient to ensure 
limited English proficient noncitizens, including speakers of rare and 
indigenous languages, are able to effectively understand the screening 
process and participate in credible fear and reasonable interviews, 
including addressing the applicability of any bars. Furthermore, DHS 
notes that limitations in communicating in English or with an 
interpreter in a language other than the noncitizen's preferred 
language would weigh against an AO exercising discretion to consider 
the bars, since they could limit testimony and impede efficiency.
---------------------------------------------------------------------------

    \35\ See USCIS ``Language Access Plan,'' https://www.dhs.gov/sites/default/files/publications/uscisc-updated-language-access-plan-2020.pdf (last visited Aug. 5, 2024).
    \36\ USCIS, Memorandum from Acting Asylum Division Chief Ashley 
Caudill-Mirillo to Asylum Division Staff: Language Access in 
Credible Fear Screenings (July 6, 2022), https://www.uscis.gov/sites/default/files/document/memos/Language-Access-in-Credible-Fear-Screenings.pdf.
---------------------------------------------------------------------------

c. Impacts on Specific Vulnerable Populations
    Comment: Some commenters expressed opposition to the proposed rule, 
stating that it would increase the odds that people would have to 
return to countries where their political beliefs, sexual orientation 
or gender identity are under threat. A commenter urged the Department 
to not make the process more difficult for women who are fleeing from 
the abuse of a partner. Another commenter said that the proposed rule 
could make it more difficult for those seeking to flee authoritarian 
governments and countries where they face marginalization and 
persecution. A commenter stated that their clients include indigent, 
black, brown, indigenous, and LGBTQI+ (lesbian, gay, bisexual, 
transgender, queer, and intersex) noncitizens who often have no other 
avenue to seek safety than to come to the United States. The commenter 
stated that the rule depends on the discretion of AOs to decide when to 
apply mandatory bars to asylum eligibility during screenings, which 
would disproportionately penalize some noncitizens based on their race, 
nationality, religion, LGBTQI+ identity, or disability status because 
those who have been criminalized for these statuses could be barred 
from asylum.
    Response: The Department disagrees with the commenters' claims 
regarding the Final Rule's impact on particularly vulnerable 
individuals. Under this rule, AOs will have the flexibility in 
screenings to apply mandatory bars that relate to an individual's 
participation in the persecution of others, or national security, 
criminal, or other public safety concerns. The Department does not 
believe that this rule would penalize any of the vulnerable populations 
commenters identified. AOs are trained to elicit testimony in a non-
adversarial and sensitive manner and to work with vulnerable 
populations.\37\ AOs are also trained to apply the mandatory bars and 
analyze available evidence, including the circumstances surrounding 
arrests and criminal records outside the United States, which may, in 
certain instances, demonstrate a pretextual or discriminatory intent by 
a foreign government.\38\ Indeed, AOs regularly analyze mandatory bars, 
including criminal bars, in asylum adjudications and are experienced in 
evaluating context related to arrests, criminal charges, and foreign 
convictions, which, in some circumstances, may be evidence that an 
individual has suffered persecution, rather than evidence of a 
mandatory bar.\39\ Accordingly, considering the training and experience 
AOs possess, they are well-suited to apply mandatory bars in the 
screening context in their discretion and, where evidence related to a 
mandatory bar is too limited or unavailable, or the analysis of the bar 
would be too complex to be fully explored in the screening context, to 
exercise their discretion not to apply the bar in the screening 
determination.
---------------------------------------------------------------------------

    \37\ See USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview'' (Apr. 
24, 2024); USCIS, ``RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony'' (Apr. 24, 2024).
    \38\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory 
Bars'' (May 9, 2013); USCIS, ``RAIO Directorate--Officer Training: 
Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and 
Intersex (LGBTI) Refugee and Asylum Claims'' (Apr. 24, 2024); USCIS, 
``RAIO Directorate--Officer Training: Definition of Persecution and 
Eligibility Based on Past Persecution'' (Apr. 24, 2024).
    \39\ See id.
---------------------------------------------------------------------------

    AOs will continue to issue positive fear determinations where a 
noncitizen demonstrates a credible or reasonable fear at the applicable 
screening standard, even where there may be indicia of a mandatory bar 
but the available evidence at the screening stage as to the bar or 
available exceptions or exemptions is limited. By preserving AO 
discretion in the application of the mandatory bars, the rule will 
protect vulnerable noncitizens who may have complicated evidentiary and 
legal issues involving a mandatory bar.
d. Other/General Negative Impacts on Noncitizens and Their Support 
Systems
    Comment: Many commenters expressed concerns about the hardships 
noncitizens face in their home countries, on the journey to the United 
States, and throughout the immigration process. A commenter stated that 
the proposed rule does not serve long-term migrants who are waiting on 
a resolution for their cases, or new migrants who deserve to be treated 
with fairness. A commenter believes that the number of migrants 
attempting to enter the United States is the ``result of global 
political and climate crises,'' and that solutions should be targeted 
towards those issues. Further, the commenter stated that the proposed 
rule would increase the suffering of noncitizens, while not addressing 
the underlying problems that drive migration. Another commenter 
discussed the need to ensure that noncitizens with similar claims would 
not experience different outcomes based on the constraints of 
government resources. A nonprofit organization opposed the rule because 
it would impose additional burdens on their resources. Finally, several 
commenters expressed the importance of access to asylum for vulnerable 
noncitizens.
    Response: The Department acknowledges the commenters' concerns for 
noncitizens who may be fleeing harm in their home countries or 
otherwise face hardships. To that end, the U.S. government has 
implemented,

[[Page 103381]]

a number of measures designed to enhance and expand lawful pathways and 
processes for noncitizens seeking to enter the United States, including 
to seek asylum or other protection. Examples of lawful pathways 
include: the Uniting for Ukraine process, which allows Ukrainian 
nationals to receive humanitarian parole into the United States, 
enabling them to travel by air to the United States; the Safe Mobility 
initiative; \40\ the new CHNV processes; \41\ and country-specific 
family reunification parole processes.\42\ DHS and its interagency 
partners have also increased H-2B nonimmigrant visa availability \43\ 
and refugee processing for Western Hemisphere countries.\44\ 
Noncitizens who are not eligible for these pathways can schedule an 
appointment to present themselves at a southwest land border port of 
entry through the CBP One app.\45\ The Department agrees with the 
comment that we must address the underlying drivers of migration. For 
example, the U.S. Strategy for Addressing the Root Causes of Migration 
in Central America, directed by the President in Executive Order 14010, 
86 FR 8267 (Feb. 5, 2021), focuses on a coordinated, place-based 
approach to improve the underlying causes that push Central Americans 
to migrate, and it takes into account, as appropriate, the views of 
bilateral, multilateral, and private sector partners, as well as civil 
society.\46\ The strategy includes addressing economic, governance, and 
security challenges through five pillars: (1) addressing economic 
insecurity and inequality; (2) combating corruption and strengthening 
democratic governance; (3) promoting human rights and labor rights; (4) 
countering and preventing violence; and (5) combating sexual and 
gender-based violence.\47\ In March 2024, the White House announced 
that the Administration is on track to meet its commitment in the root 
causes strategy to provide $4 billion to the region over four 
years.\48\
---------------------------------------------------------------------------

    \40\ U.S. Dep't of State, Safe Mobility Initiative, https://www.state.gov/refugeeadmissions/safe-mobility-initiative (last 
visited Aug. 23, 2024); The White House, Fact Sheet: Biden-Harris 
Administration on World Refugee Day Celebrates a Rebuilt U.S. 
Refugee Admissions Program, June 20, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/ (last visited 
Aug. 29, 2024).
    \41\ See U.S. Citizenship and Immigration Services, Processes 
for Cubans, Haitians, Nicaraguans, and Venezuelans, https://www.uscis.gov/CHNV (last visited Sept. 25, 2024).
    \42\ See U.S. Citizenship and Immigration Services, Family 
Reunification Parole Processes, https://www.uscis.gov/FRP (last 
visited Aug. 23, 2024).
    \43\ 88 FR 80394 (Nov. 17, 2023).
    \44\ See Memorandum on Presidential Determination on Refugee 
Admission for Fiscal Year 2024, Presidential Determination No. 2023-
13 (Sept. 29, 2023) (providing for the admission of 35,000-50,000 
refugees from the Latin America/Caribbean region to the United 
States during Fiscal Year (FY) 2024); Memorandum on Presidential 
Determination on Refugee Admission for Fiscal Year 2025, 
Presidential Determination No. 2024-13 (Sept. 30, 2024) (providing 
for the admission of 35,000-50,000 refugees from the Latin America/
Caribbean region to the United States during FY 2025).
    \45\ See CBP, ``CBP OneTM Mobile Application,'' 
https://www.cbp.gov/about/mobile-apps-directory/cbpone (last visited 
Aug. 14, 2024).
    \46\ Nat'l Sec. Council, U.S. Strategy for Addressing the Root 
Causes of Migration in Central America at 4 (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
    \47\ The White House, Fact Sheet: Update on the U.S. Strategy 
for Addressing the Root Causes of Migration in Central America (Mar. 
25, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/25/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-3/.
    \48\ Id.
---------------------------------------------------------------------------

    The Department disagrees with the comment that the rule will 
increase suffering of noncitizens and negatively impact both new and 
long-term noncitizens waiting on case resolutions. Instead, the 
Department believes the rule will increase efficiencies for noncitizens 
and decrease the time noncitizens must wait for a final decision on 
their protection claim, including those who may be in detention. 
Noncitizens who are subject to a bar but would nevertheless receive a 
positive fear determination absent this rule may, under this rule, be 
more swiftly removed instead of being detained throughout their removal 
proceedings, and therefore spend less time in detention. The Department 
is committed to conducting screening interviews with fairness, and AOs 
are trained to review each case on its own merits, even when there are 
similarities between claims.
    DHS acknowledges the comment regarding burden on nonprofit 
resources and has included a description of impacts of the Final Rule 
in Section V.B. of this preamble. This rule does not directly regulate 
any organizations, and consistent with longstanding case law, a 
regulatory flexibility analysis is not required when a rule has only 
indirect effects on small entities, rather than directly regulating 
those entities. See, e.g., Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 
327, 342-43 (D.C. Cir. 1985).
e. Negative or Minimal Impacts on Immigration System and Government 
Operations and Resources
    Comment: Many commenters expressed concerns that considering 
mandatory bars during the fear screening stage would introduce 
complexities, inconsistencies, and inefficiencies in the fear screening 
process, and the asylum system needs fair and comprehensive reform. One 
commenter stated that the proposed rule would make the asylum process 
more complicated for noncitizens and AOs, while also putting 
noncitizens in danger. One commenter expressed concerns that applying 
bars during fear interviews could slow down the fear screening process 
and become arduous for AOs to consider. One commenter expressed 
concerns that AOs may not be able to make these decisions with clarity, 
empathy, or fairness, while also potentially causing officers 
psychological distress.
    In line with the above remarks, a commenter stated that the 
proposed rule would not increase efficiency because a small number of 
people would be impacted, and that given this small numeric impact, the 
Department should weigh the adverse fairness implications that the 
proposed rule would impose on the few cases where the mandatory bars 
are applied. In addition, they wrote that AOs face pressure to make 
findings with limited resources, which would leave doubt that the rule 
would increase efficiency. The same commenter further stated that the 
consideration of the bars, a step not systematically taken in the 
credible fear process, requires extensive factual development and legal 
analysis that would lengthen credible fear and reasonable fear 
interviews, thereby undermining the purported efficiency goals of the 
proposed rule. Citing an interview with a representative for USCIS AOs, 
the commenter raised concerns with the proposed rule's impact on the 
agency's limited time and resources for conducting fear interviews. The 
commenter warned that if the proposed rule were finalized, the 
application of complex mandatory bars at the screening stage would 
drain more time and resources from already strained AOs.
    Response: The Department disagrees with the commenters' concerns 
that consideration of the mandatory bars would be inefficient due to 
time and resource constraints and that AOs would have difficulty making 
decisions with clarity and fairness. As noted by commenters, the 
Department expects only a small percentage of screening cases to be 
impacted by the mandatory bars; therefore, the length of interviews 
would not increase across all credible and reasonable fear interviews. 
The Department also believes that while a small number of people would 
be impacted by this rule, those individuals would be enforcement 
priorities because

[[Page 103382]]

of national security and public safety concerns.\49\ Safeguarding 
national security is one of the Department's highest priorities, and 
this rule will allow the Department to efficiently identify and remove 
noncitizens who are found subject to one of the outlined mandatory bars 
without subjecting them to lengthy proceedings. AOs interview 
noncitizens with complex cases on a regular basis and are trained in 
interviewing noncitizens in credible fear and reasonable fear 
screenings, as well as in interviewing affirmative asylum 
applicants.\50\ AOs are capable of conducting thorough screening 
interviews, applying the mandatory bars when applicable, and 
maintaining fairness throughout the process, as is required by their 
roles.
---------------------------------------------------------------------------

    \49\ Memorandum from Alejandro N. Mayorkas, Sec'y of Homeland 
Security, Guidelines for the Enforcement of Civil Immigration Law 3-
4 (Sept. 30, 2021).
    \50\ See Memorandum for the Record, from Ted Kim, Assoc. Dir., 
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum 
Division Training, Staffing, Capacity, and Credible Fear Procedures 
(Sept. 26, 2024).
---------------------------------------------------------------------------

    Comment: Commenters suggested that DHS look elsewhere to improve 
the immigration system, such as employing and training more immigration 
officers, or focusing on adjudicating pending cases in the backlog 
instead of imposing additional burdens on officers who are performing 
fear screenings. One commenter stated that backlogs at USCIS and the 
Executive Office for Immigration Review (EOIR) would make the 
successful implementation of this rule difficult, and it is unclear 
where the resources would come from to execute the proposed rule 
fairly. A few other commenters stated that resources should be spent 
creating accessible pathways to citizenship and policies that reduce 
poverty and violence in the countries from which noncitizens are 
fleeing.
    Response: The Department continues to expand its workforce to meet 
different priorities and believes that resources can be, and are being, 
allocated to both reducing the backlog and increasing efficiencies in 
the credible and reasonable fear processes.\51\ While the Department 
appreciates the resource allocation suggestions made by some commenters 
and would direct those commenters to E.O. 14010,\52\ which aims to 
address root causes of migration and create a strategy for managing 
migration, and E.O. 14012,\53\ which aims to identify and eliminate 
barriers to immigration access and improve the naturalization process, 
the Department also notes that these suggestions are outside the scope 
of this rule. Finally, the comment suggesting increased immigration 
judge hiring and training is outside the scope of this rule.
---------------------------------------------------------------------------

    \51\ See, e.g., DHS, ``Statement from Secretary Mayorkas on the 
Recognition of DHS Advancement on Partnership for Public Service 
List of `Best Places to Work') (May 20, 2024) (``Secretary Mayorkas 
helped to secure the first increase in Border Patrol staffing in 
over a decade with 300 additional Agents added in Fiscal Year 2023, 
and another 1,400 added in Fiscal Year 2024.''), https://www.dhs.gov/news/2024/05/20/statement-secretary-mayorkas-recognition-dhs-advancement-partnership-public-service (last visited 
Aug. 15, 2024); USCIS, ``Talking Points, Asylum National Engagement; 
March 6, 2024,'' https://www.uscis.gov/sites/default/files/document/outreach-engagements/Asylum-National-Engagement-talking-points-3-6-24.pdf (last visited Aug. 15, 2024).
    \52\ E.O. 14010, 86 FR 8267 (Feb. 5, 2021).
    \53\ E.O. 14012, 86 FR 8277 (Feb. 5, 2021).
---------------------------------------------------------------------------

    Comment: Several commenters expressed concern that the proposed 
rule could exacerbate the existing inequities in asylum processing, 
which they stated served neither noncitizens nor the U.S. government's 
need to manage the border. One commenter stated that the mandatory bars 
are very complex and that in a screening interview where the noncitizen 
is unlikely to have legal representation, applying those bars will lead 
to inconsistent and erroneous outcomes. Commenters indicated the rule 
leaves excessive discretion to AOs to determine whether to consider 
bars to asylum and withholding of removal in credible fear and 
reasonable fear screenings, which would lead to inconsistent results 
and undermine the efficiency of screenings. Commenters predicted the 
discretion the rule accords to AOs to consider bars in fear screenings 
will lead to discrimination and inequity, including profiling on the 
basis of race, religion, or nationality.
    Response: The Department disagrees with the comment that the rule 
will exacerbate inequities in the asylum system and does not serve 
border management needs. The commenters did not explain what they were 
referring to as existing inequities in asylum processing. The 
Department has outlined its commitment to increase access and equity in 
the immigration process in the DHS Equity Action Plan.\54\ The 
Department also disagrees that the rule does not serve noncitizens or 
the U.S. government's border management needs. The rule will allow DHS 
to quickly screen out certain non-meritorious claims and remove those 
noncitizens who pose a national security or public safety threat more 
expeditiously. This serves both government and noncitizen needs, as it 
safeguards national security while allowing the Department to use 
resources more efficiently. Applying the mandatory bars earlier in the 
process means that the Department can more effectively use its 
resources to adjudicate other cases in a more expedient manner.
---------------------------------------------------------------------------

    \54\ See DHS, ``DHS Equity Action Plan,'' https://www.dhs.gov/publication/equity (last visited Aug. 15, 2024).
---------------------------------------------------------------------------

    The Department disagrees that application of the mandatory bars 
during the screening process will lead to erroneous and inconsistent 
decisions. AOs are trained to analyze and apply the mandatory bars in 
affirmative asylum cases; therefore, they are well-suited to exercise 
discretion to apply mandatory bars in the screening context. If 
evidence related to a mandatory bar is too complex to be fully explored 
in the screening context, the rule will allow AOs to exercise their 
discretion not to apply the bar in the screening determination. In 
those cases, AOs will continue to issue positive fear determinations 
where a noncitizen demonstrates a credible or reasonable fear at the 
applicable screening standard, even where there may be indicia of a 
mandatory bar but the available evidence at the screening stage as to 
the bar or any available exception or exemption is limited.
    DHS disagrees that providing discretion to AOs to consider bars in 
fear screenings will lead to inconsistent or inequitable results. AOs 
already receive standardized training on how to apply the bars to 
asylum in full adjudications. The five bars to statutory withholding of 
removal that could be considered under this rule generally correspond 
to five of the six mandatory bars to asylum. See INA secs. 
208(b)(2)(A)(i)-(v), 241(b)(3)(B)(i)-(iv) and (b)(3)(B), 8 U.S.C. 
1158(b)(2)(A)(i)-(v), 1231(b)(2)(B)(i)-(iv) and (b)(3)(B). Therefore, 
AOs understand the types of evidence that would indicate the potential 
applicability of these bars to both forms of relief. AOs are also 
trained, in cases where there is evidence a bar may apply, to note the 
possible applicability of the bar in the credible fear or reasonable 
fear determination.\55\ Such training helps to ensure consistent 
application of AO discretion in determining whether to consider bars in 
fear screenings.
---------------------------------------------------------------------------

    \55\ See USCIS, RAIO Directorate--Officer Training: Credible 
Fear of Persecution and Torture Determinations (May 9, 2024); USCIS, 
RAIO Directorate--Officer Training: Reasonable Fear of Persecution 
and Torture Determinations (Feb. 13, 2017); see also Credible Fear 
Procedures Manual (CFPM), Section III.E.7; Reasonable Fear 
Procedures Manual (RFPM), Section III.F.
---------------------------------------------------------------------------

    DHS also disagrees that providing AOs discretion to consider bars 
will

[[Page 103383]]

undermine the efficiency of screenings. It is precisely this concern 
for efficiency that, in part, motivates the Department's decision not 
to require AOs to consider bars in every screening conducted, but 
rather permit them to do so in those cases where there is easily 
verifiable evidence available to the AO that, in their discretion, 
warrants an inquiry into a bar, and the AO can consider that bar 
efficiently.
    DHS further disagrees that providing AOs this discretion will lead 
to discrimination and profiling on the basis of race, religion, or 
nationality. Such discrimination is not only unlawful and against USCIS 
policy,\56\ but contrary to the fundamental purpose of fear screenings, 
which exist to ensure the United States does not return eligible 
noncitizens to torture or to persecution on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion. Furthermore, AOs are trained to be neutral decisionmakers,\57\ 
to conduct interviews in a non-adversarial manner, to not let personal 
biases interfere with their work, and to treat each individual who 
appears before them with courtesy, professionalism, and respect.\58\
---------------------------------------------------------------------------

    \56\ See 42 U.S.C. 1983; see also USCIS, ``USCIS Policy 
Manual,'' Vol. 1, Part A, Ch.9, Section (D)(1), https://www.uscis.gov/policy-manual.
    \57\ See USCIS, ``RAIO Directorate--Training Module: Decision 
Making'' (Apr. 4, 2024).
    \58\ See USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024) and USCIS, RAIO Directorate--Training Module: Core Values 
and Guiding Principles for RAIO Employees (Apr. 24, 2024).
---------------------------------------------------------------------------

    Comment: One commenter opposed the rule for doing too little to 
address the high level of border crossings, and address the asylum and 
immigration court pending caseload, describing it as too narrow in 
scope and containing numerous loopholes that would do little to stem 
what they described as the tide of asylum fraud that plagues the 
system.
    Response: The rule is not intended to address high levels of border 
crossings, or primarily, to address backlogs in the immigration system. 
Neither is it intended to address fraud in the asylum system. While the 
Department does expect the rule to conserve some government resources 
that may be used on other cases, it does not expect that the rule will 
substantially decrease the pending caseload at the immigration courts 
or at USCIS.
f. Negative Impacts on the U.S. Economy and Workforce, U.S. Citizens, 
Public Health and Safety
    Comment: Several commenters expressed opposition to the proposed 
rule, stating that it would raise additional barriers to gaining asylum 
during a time when noncitizens could help strengthen the United States 
and increase government tax revenue. A commenter noted that immigrants 
help the economy. Another commenter added that there could be concerns 
with accommodating large numbers of noncitizens, but the pros outweigh 
the cons. Several commenters stated that the U.S. population and 
workforce is projected to decline, so the United States should be 
accepting noncitizens to help fill gaps in the workforce. Some 
commenters stated that noncitizens are often eager to rebuild their 
lives and contribute to their communities. Other commenters noted that 
noncitizens are resourceful, which is why we should welcome them. A 
commenter stated that because of the many hazards that noncitizens have 
faced, they will become strong model citizens.
    Response: The Department agrees that immigrants contribute 
significantly to the U.S. economy and workforce. This rule does not 
curtail access to the immigration system for individuals who are 
eligible for protection or relief from removal. By allowing AOs to 
apply certain mandatory bars in screenings, the Department is working 
to ensure that individuals who will not ultimately be eligible for 
protection or relief from removal are not unnecessarily consuming U.S. 
Government resources during their pursuit of non-meritorious protection 
claims.
g. Other Opposition to the Rule
    Comment: Several commenters remarked that this is the incorrect 
approach to dealing with the asylum system. Further, a commenter said 
that the current immigration policy is costly and traumatizing, 
especially to those who are vulnerable. Another commenter remarked that 
those seeking asylum should not be criminalized, since noncitizens 
seeking asylum are fleeing oppressive environments. A commenter urged 
the Department to withdraw the proposed rule in its entirety to instead 
adopt humane solutions to the humanitarian and operational challenges 
at the border. They offered several alternatives, such as increasing 
capacity at ports of entry; engaging civil society entities to provide 
respite services; improving communication and cooperation between civil 
society, State and local governments, and Federal agencies; ending 
detention and monitoring of asylum seekers; and providing legal 
representation and social services to asylum seekers. A few commenters 
expressed disappointment towards the Biden administration because of 
the restrictiveness of the proposed rule.
    Response: The Department disagrees with the commenters' claims and 
declines to adopt their suggestions, which are beyond the scope of this 
rulemaking in any event. With this rule, the Department is considering 
the application of mandatory bars at an earlier stage in the process. 
Concerning legal representation, the Department notes that during the 
credible and reasonable fear processes, noncitizens may be represented 
by an attorney at no cost to the government. Additionally, noncitizens 
in credible fear may consult with persons of their choosing. 8 CFR 
208.30(d)(4). Noncitizens who are referred to USCIS for a credible fear 
or reasonable fear interview are provided with an information sheet 
related to the applicable screening interview process (e.g., M-444, 
Information About Credible Fear Interview; M-488, Information About 
Reasonable Fear Interview; Information About Credible Fear Interview 
Sheet (for credible fear cases referred to USCIS under the Securing the 
Border rule)), in addition to a list of free or low-cost legal service 
providers. Certain suggestions, including those to increase processing 
capacity at ports of entry, strengthening communication and cooperation 
between civil society, State and local governments, and Federal 
agencies, ending the detention and monitoring of asylum seekers, and 
providing legal and social services to newly arrived asylum seekers, 
are outside the scope of this rule.
    Comment: One commenter opposed the proposed rule stating that a 
future ``more overtly hostile anti-immigrant administration'' could 
abuse the discretion that the rule allows AOs, such as if a future 
administration sought to expand the use of expedited removal across the 
country.
    Response: The Department emphasizes that the NPRM and this rule 
allow AOs to exercise discretion to consider a mandatory bar during a 
fear screening interview. The discretion the rule provides is not 
unbounded. AOs should only expend resources considering mandatory bars 
where there is easily verifiable evidence that a bar may apply and 
where they determine that they can address the issue efficiently in the 
context of a screening interview.
    Under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), 
DHS[thinsp]may remove certain noncitizens without a hearing before an 
immigration judge through expedited removal proceedings. The INA also 
grants the Secretary authority to apply expedited removal procedures

[[Page 103384]]

(by designation) to ``any or all'' noncitizens referred to in the 
statute as ``certain other aliens.'' INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 
1225(b)(1)(A)(iii)(I). A noncitizen is within the class of ``certain 
other aliens'' if the noncitizen ``has not been admitted or paroled 
into the United States, and . . . has not affirmatively shown, to the 
satisfaction of an immigration officer, that the alien has been 
physically present in the United States continuously for the 2-year 
period immediately prior to the date of the determination of 
inadmissibility.'' INA 235(b)(1)(A)(iii)(II), 8 U.S.C. 
1225(b)(1)(A)(iii)(II). Such designation ``shall be in the sole and 
unreviewable discretion'' of the Secretary and ``may be modified at any 
time.'' INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I); 8 CFR 
235.3(b)(1)(ii).
    In case of a hypothetical future policy choice to expand the use of 
expedited removal to additional contexts, DHS emphasizes that 
noncitizens found under this rule to lack a credible fear or reasonable 
fear of persecution due to the application of a mandatory bar would 
ultimately be ineligible for the underlying relief in a merits hearing 
if they were instead placed into immigration court proceedings directly 
through service of a Notice to Appear.
    Moreover, the concerns about future administrations abusing their 
discretion by, for example, expanding expedited removal's use across 
the country, are misplaced. The application of expedited removal is not 
geographically limited by statute. See INA 235(b)(1), 8 U.S.C. 
1225(b)(1). Currently, the regulations implementing expedited removal 
allow for its use if a noncitizen has failed to establish they have 
been continuously present in the United States for at least two years 
prior to their date of inadmissibility, but there is no limit as to its 
nationwide use. 8 CFR 235.3(b)(ii).
    Comment: One commenter faulted the proposed rule for allegedly 
seeking to deter asylum seekers from entering the United States.
    Response: DHS rejects this characterization. The rule is not 
designed to deter noncitizens from seeking asylum. The rule simply is 
intended to provide flexibility to AOs to apply the covered mandatory 
bars where there is easily verifiable evidence so that, when possible, 
noncitizens who would otherwise ultimately be found ineligible for 
relief or protection after a lengthy immigration process may instead 
have their cases handled more efficiently. In addition, this 
flexibility allows DHS to more expeditiously remove some noncitizens 
who pose a threat to the safety or security of the United States. As 
noted above, DHS has established numerous new pathways to facilitate 
the lawful entry of noncitizens into the United States, which enables 
noncitizens to more easily seek asylum or other immigration benefits in 
appropriate cases.
    Comment: One commenter criticized the rule as a reinstatement of 
the ``Asylum Ban'' and characterized it as going against President 
Biden's campaign promises.
    Response: This rule is not equivalent to an ``asylum'' ban or any 
other sort of categorical ban. As discussed elsewhere in this preamble, 
this rule is intended to simply provide AOs with the discretionary 
authority to consider certain statutory bars to asylum and withholding 
of removal during fear screenings when doing so could increase 
efficiency. Individuals subject to these bars are already ineligible 
for asylum or withholding of removal as relevant, but, without the 
rule, the bars are only fully applied at a later stage in a 
noncitizen's immigration proceedings.

C. Legal Authority and Background

1. DHS Legal Authority
    Comment: Many commenters asserted that the proposed rule is in 
contravention of international and domestic law regarding refugee 
protection and non-refoulement. In support of this assertion, several 
commenters cited the 2003 Office of the U.N. High Commissioner for 
Refugees (UNHCR) Guidelines, which direct that exclusion clauses only 
be considered during regular refugee determinations proceedings and not 
during expedited proceedings. A commenter stated that the proposed 
provisions in the rule will create barriers to asylum and withholding 
of removal for asylum seekers and violates the 1967 Protocol Relating 
to the Status of Refugees.
    Response: DHS disagrees with the assertion that the proposed rule 
is in contravention of applicable law. The INA provides mandatory bars 
to applying for asylum at section 208(a)(2) of the INA, 8 U.S.C. 
1158(a)(2); to asylum eligibility at section 208(b)(2)(A) of the INA, 8 
U.S.C. 1158(b)(2)(A); and to eligibility for withholding of removal at 
section 241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B) (referred to 
collectively as ``mandatory bars''). Further, as explained above, 
Congress has conferred upon the Secretary express rulemaking power to 
create certain procedures for screening for and adjudicating asylum 
claims. INA sec. 103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA 
sec. 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(1)(A), 
(b)(2)(C), (d)(5)(B); INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1).
    There are no bars to deferral of removal under the regulations 
implementing U.S. obligations under Article 3 of the CAT. Prior to 
being granted asylum or statutory withholding of removal in the United 
States, noncitizens are required to show that the mandatory bars do not 
apply to them.
    The relevant statutory provisions are silent as to the 
consideration of the mandatory bars during screening interviews. All 
relevant domestic legal provisions on this topic have taken the form of 
regulatory action. The former Immigration and Naturalization Service 
issued a rule in 2000 precluding, in response to comments, 
consideration of the asylum bars at the credible fear stage.\59\ 
Additional regulatory action on this subject was taken in 2020 and 
2022. See 85 FR 80274, 80278 (Dec. 11, 2020) (``Global Asylum Rule''); 
87 FR at 18221-22. In none of these actions that precluded 
consideration of bars has the government concluded that considering 
mandatory bars at the screening stage would violate statutory 
provisions or other legal requirements. Instead, the basis of these 
rules, when it has been articulated, has focused primarily on 
efficiency of eliciting testimony related to and analyzing the 
mandatory bars at the screening stage. See 87 FR 18078, 18093 (Mar. 29, 
2022). This rule is based on a judgment by DHS that, under certain 
limited circumstances, the consideration of the mandatory bars at the 
screening stage represents an appropriate expenditure of resources.
---------------------------------------------------------------------------

    \59\ See 65 FR 76121, 76129 (Dec. 6, 2000) (``Asylum 
Procedures'') (codifying the statement in 8 CFR 208.30 that a 
noncitizen who appears to be subject to one or more of the mandatory 
bars would nevertheless be referred to section 240 removal 
proceedings for full consideration of their claim and explaining 
that this change was done in response to comments suggesting such a 
referral ``regardless of any apparent statutory ineligibility under 
section 208(a)(2) or 208(b)(2)(A) of the Act'').
---------------------------------------------------------------------------

    DHS notes that while international guidelines represent helpful 
interpretative guidance, they are not binding authority on DHS. As 
such, the 2003 UNHCR guidance \60\ does not carry the force of law. The 
guidance raised by the commenters states that
---------------------------------------------------------------------------

    \60\ UNHCR, ``Guidelines on International Protection No. 5, 
Application of the Exclusion Clauses: Article 1F of the 1951 
Convention relating of the Status of Refugees'' (Sept. 4, 2003), 
https://www.unhcr.org/us/media/guidelines-international-protection-no-5-application-exclusion-clauses-article-1f-1951.

it is essential that rigorous procedural safeguards are built into 
the exclusion determination procedures. Exclusion decisions should 
in principle be dealt with

[[Page 103385]]

in the context of the regular refugee status determination procedure 
and not in either admissibility or accelerated procedures, so that a 
full factual and legal assessment of the case can be made.\61\
---------------------------------------------------------------------------

    \61\ Id.

    We note that the guidance speaks generally (``in principle'') and 
is not a categorical prohibition against considering exclusion 
provisions in a screening interview. DHS screening procedures do 
contain ``rigorous procedural safeguards,'' including 100% supervisory 
review of all decisions \62\ and the right to review of any negative 
decision by an immigration judge.\63\ Additionally, noncitizens in 
screening interviews have the right to consult with an individual of 
their choosing, including counsel, at no cost to the government, the 
right to have a consultant or counsel attend the interview, the right 
to provide evidence in their native language or a language that they 
are comfortable with, and the right to a non-adversarial interview with 
an AO. 8 CFR 208.30(d); 208.31(c).
---------------------------------------------------------------------------

    \62\ USCIS ``Credible Fear Procedures Manual,'' Section III.I, 
https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf; USCIS, ``Reasonable Fear 
Procedures Manual,'' Section III.F.3, https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf.
    \63\ 8 CFR 208.30(g) and 208.31(g).
---------------------------------------------------------------------------

    Furthermore, the rule instructs that the AO should only consider 
any possible mandatory bar when the noncitizen does not establish a 
fear of torture and when there is easily verifiable evidence indicating 
that the noncitizen could be subject to a mandatory bar and, where the 
noncitizen is unable to establish at the relevant standard that the bar 
would not apply. As the standards of proof for screening interviews are 
lower than those applicable at the merits stage, the AO would only 
enter a negative fear determination if the noncitizen were unable to 
demonstrate at the applicable screening standard that a mandatory bar 
does not apply. Furthermore, if there are significant factual or legal 
issues that would necessitate further development at a later stage, AOs 
may exercise discretion to not apply the mandatory bar at the screening 
stage.
    DHS disagrees that the rule will create barriers to asylum and 
withholding of removal for noncitizens with potentially meritorious 
claims. In the current fear screening process, AOs already identify 
possible mandatory bars. The rule simply permits an AO to apply the 
bars at the screening stage when there is evidence that a bar may 
apply, the AO determines that the bar can be addressed efficiently at 
the interview, and the noncitizen is unable to demonstrate at the 
applicable standard of proof that the bar does not apply or that the 
noncitizen qualifies for an exception or exemption to the bar. Further, 
any noncitizen who is subject to one of the mandatory bars that that 
this rule permits AOs to consider at the screening stage would already 
be ineligible for asylum or withholding of removal, as relevant.
    Comment: Several commenters stated that DHS lacks the statutory 
authority to enact the proposed rule as the expedited removal statute 
does not mention mandatory bars to asylum and instructs the agency to 
find a credible fear whenever an asylum seeker demonstrates a 
``significant possibility'' that they ``could'' be eligible for asylum.
    Response: DHS disagrees with the assertion that it lacks the 
authority to enact the proposed rule. The legal authorities for this 
rule are described in section II of this preamble.
    As mentioned earlier, the consideration of mandatory bars in 
screening interviews has been the subject of several prior rulemaking 
actions. Under INA sec. 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the 
term ``credible fear of persecution'' means that there is a 
``significant possibility, taking into account the credibility of the 
statements made by the [noncitizen] in support of the [noncitizen]'s 
claim and such other facts as are known to the [asylum] officer, that 
the [noncitizen] could establish eligibility for asylum under'' INA 
sec. 208, 8 U.S.C. 1158. Section 208(b)(2)(A)(i)-(vi) of the INA 
contains the mandatory bars to asylum and states that the eligibility 
conditions for granting asylum at section 208(b)(1) of the INA, 8 
U.S.C. 1158(b)(1), ``shall not apply'' to a noncitizen if one of the 
mandatory bars is determined to apply. As such, if the noncitizen is 
subject to one of the mandatory bars, they are not eligible for asylum. 
It follows that when considering whether a noncitizen has a significant 
possibility of establishing eligibility for asylum, an AO may consider 
factors that would render the noncitizen ineligible for asylum.
    Comment: Many commenters stated that consideration of the mandatory 
bars at the screening stage is inconsistent with congressional intent 
that the ``significant possibility'' standard be a low threshold to 
avoid the risk that people would erroneously be screened out and 
remarked that making decisions on mandatory bars is too complex to be 
done fairly under the circumstances during screening interviews.
    Response: Nothing in this rule modifies the standard of proof for 
any of the screening interviews that would be affected by the rule. DHS 
believes that the rule is consistent with Congress' intent for 
expedited removal proceedings. In the Asylum Processing NPRM, DHS and 
DOJ explained that Congress created a ``low screening standard'' for 
expedited removal proceedings and stated that it may be inconsistent 
with Congress' intent for the Departments to ``creat[e] a complicated 
screening process that requires full evidence gathering and 
determinations to be made on possible bars to eligibility.'' 86 FR 
46906, 46914 (Aug. 20, 2021).\64\ This rule, however, does not create 
any such process because AOs have the discretion, but are not required, 
to consider a mandatory bar in those cases where there is easily 
verifiable evidence that a bar may apply. If the AO determines that 
they can consider that bar efficiently at the screening stage, the AO 
could then, in their discretion, make a further inquiry into the 
mandatory bar. DHS does not believe Congress' intent that the expedited 
removal process be swift requires reading the statute to forbid the 
application of mandatory bars during fear screenings in all cases, 
particularly where, as here, DHS will apply those bars in a manner that 
would not increase the length of the expedited removal process except 
in those cases in which there is evidence indicating that a mandatory 
bar may apply. Accordingly, this rule is consistent with Congress's 
intent for expedited removal proceedings and DHS and DOJ's prior 
statements regarding that intent.
---------------------------------------------------------------------------

    \64\ See also 87 FR at 18135 (``The Departments agree with these 
commenters that a complicated process requiring full evidence 
gathering and determinations to be made on possible bars to 
eligibility is incompatible with the function of the credible fear 
interview'').
---------------------------------------------------------------------------

    DHS rejects the assertion that the mandatory bars present issues 
that are inherently more complex than other issues that are regularly 
considered in screening interviews. While the Department acknowledges 
that certain issues in the consideration of mandatory bars can present 
complex factual and legal issues, it also believes that other issues 
routinely considered by AOs as part of a credible fear or reasonable 
fear determination, including, for example, the viability of certain 
particular social groups, whether certain types of harm rise to the 
level of persecution, complex issues surrounding the motivation of the 
persecutor, whether the noncitizen has provided credible testimony, and 
whether certain types of feared harm would constitute torture if 
carried out, also involve complex legal and factual determinations.

[[Page 103386]]

    Furthermore, because the rule allows for permissive consideration 
of the mandatory bars, it is well-tailored to address cases that 
present particularly complex legal or factual issues. The NPRM 
explained that AOs should consider mandatory bars only in situations 
where there is easily verifiable information that the bar may apply, 
and even then, to only do so if the inquiry can be done efficiently. If 
applying a mandatory bar would require extensive legal research, or 
would require extensive fact gathering, it would not be appropriate for 
the AO to consider that bar as part of a noncitizen's credible fear or 
reasonable fear interview under this rule.
    Comment: Several commenters stated that the proposed rule conflicts 
with the decision in Pangea Legal Servs. v. Dep't of Homeland Sec., 512 
F. Supp. 3d 966 (N.D. Cal. 2021). Commenters noted that the 
consideration of mandatory bars during credible fear screening was at 
issue, and the court blocked that effort.
    Response: DHS disagrees with commenters on these points. First, 
this rule is distinguishable from the Global Asylum Rule, which was at 
issue in Pangea Legal Servs. and which required the mandatory 
consideration of bars during credible fear screenings. See 85 FR 80274 
(Dec. 11, 2020). This rule is different as it affords discretion to 
consider bars when there is easily verifiable evidence available but 
does not mandate their consideration in any particular case. Moreover, 
the district court in Pangea Legal Servs. did not opine on the merits 
of the substance of the Global Asylum Rule, including its provisions 
regarding the consideration of mandatory bars by AOs. Instead, as noted 
in the proposed rule, the Pangea court concluded that the plaintiffs 
were likely to succeed on the merits of their claim that the Global 
Asylum Rule ``was done without authority of law'' because the court 
found that the DHS official who approved it, then-Acting Secretary Chad 
Wolf, was not properly designated as Acting Secretary. 512 F. Supp. 3d 
at 975.
    Comment: Several commenters objected to the proposed rule by 
pointing to DHS's historical practice, dating back to the 2000 
implementing regulations for expedited removal, of not applying 
mandatory bars in protection screenings. Many commenters pointed to 
DHS's previous rejection of considering mandatory bars in protection 
screening interviews in the Asylum Processing IFR, where DHS stated 
that applying asylum bars in screenings would hurt efficiency by making 
interviews longer while also undermining due process rights of asylum 
seekers. Several commenters objected to the proposed rule as arbitrary, 
capricious, and/or an abuse of discretion not in accordance with the 
law due to DHS's failure to properly explain its change in position 
from the 2022 Asylum Processing IFR despite no change in circumstance 
or law.
    One commenter wrote that while the Department claims the rule is 
narrow and will impact a small number of people, in fact, the rule 
amounts to a significant change to asylum processing. The commenter 
further argued that that while DHS claims that the current credible 
fear process would remain the same, AOs have never been permitted to 
apply bars during the screening process since its creation, and 
accordingly, the rule actually significantly alters the expedited 
removal screening process created by Congress over 25 years ago.
    Response: DHS acknowledges its historical policy choice to not 
consider the mandatory bars in screening interviews. The Department 
notes that the practice established by the 2000 regulations was enacted 
without substantive explanation. See Asylum Procedures, 65 FR at 76129 
(Dec. 6, 2000) (codifying in 8 CFR 208.30 that a noncitizen who appears 
to be subject to one or more of the mandatory bars would nevertheless 
be referred to section 240 removal proceedings for full consideration 
of their claim and explaining that this change was done in response to 
comments suggesting such a referral ``regardless of any apparent 
statutory ineligibility under section 208(a)(2) or 208(b)(2)(A) of the 
Act'').
    DHS recognizes that the inclusion of mandatory bars in credible 
fear screenings has been a focus of several rules since 2020 that have 
made numerous changes in this area, as explained in the NPRM. The 
Global Asylum Rule instructed adjudicators for the first time to apply 
the statutory mandatory bars in INA secs. 208(b)(2)(A) and 241(b)(3), 8 
U.S.C. 1158(b)(2)(A) and 1231(b)(3), during credible fear interviews. 
85 FR at 80390. Subsequently, in 2022, DHS and DOJ rejected the 
consideration of all statutory mandatory bars during credible fear 
screenings and recodified the prior practice of not doing so. 87 FR at 
18092-94, 18134-36; see also 86 FR at 46914-15. DHS and DOJ reasoned 
that applying the mandatory bars during all credible fear screening 
interviews would make those credible fear screenings less 
efficient,\65\ which could jeopardize DHS's ability to use expedited 
removal,\66\ undermine Congress' intent that the expedited removal 
process be swift,\67\ and undermine procedural fairness.\68\ The 
Departments did not, however, conclude that applying the mandatory bars 
would lead to these potentially negative repercussions in all, or even 
most, cases. See 87 FR at 18093 (stating that the factual and legal 
inquiries required to consider the mandatory bars were ``in general and 
depending on the facts, most appropriately made in the context of a 
full merits interview or hearing'') (emphasis added). Although the 
Departments' policy choices in this area have shifted over time, all 
these choices have remained consistent with the Department's 
longstanding statutory authority to manage asylum and related fear 
screenings, as discussed in Section II.
---------------------------------------------------------------------------

    \65\ See 87 FR 18078, 18093, 18134 (Mar. 29, 2022) (``Asylum 
Processing IFR''); 88 FR 11704, 11744 (Feb. 23, 2023) (``Lawful 
Pathways NPRM'').
    \66\ See 87 FR 18078, 18093 (Mar. 29, 2022) (``Asylum Processing 
IFR'').
    \67\ See 86 FR 46906, 46914 (Aug. 20, 2021) (``Asylum Processing 
NPRM''); 87 FR 18078, 18094, 18134-35 (``Asylum Processing IFR'').
    \68\ 87 FR 18078, 18093-94, 18097 (``Asylum Processing IFR'').
---------------------------------------------------------------------------

    DHS acknowledges that this rule implements a policy choice that is 
different from its position in 2022 but believes that this rule is not 
inconsistent with that earlier position. The 2022 rule rejected the 
consideration of the mandatory bars in screening interviews due 
primarily to concerns of inefficiency. The permissive nature of the 
current rule obviates those prior concerns about inefficient use of 
resources. The Department believes, just as it did in 2022, that the 
consideration of mandatory bars in instances where evidence related to 
a mandatory bar is too limited or is unavailable, or where the analysis 
of the bar would be too complex to be fully explored in the screening 
context, would constitute an inefficient use of resources. However, in 
cases where the evidence is clear, consideration of mandatory bars in a 
screening interview will help preserve the government's resources by 
allowing decisions to be made at the earliest possible stage.
    DHS disagrees that the rule significantly changes asylum processing 
or expedited removal. As explained in the NPRM, under this rule, the 
current credible fear process will remain the same. The only aspect of 
the determination that will change is that the AO will have the 
discretion to consider the application of mandatory bars to asylum 
(other than firm resettlement) and statutory withholding of removal 
when screening the noncitizen for a credible fear of persecution or to 
consider the potential

[[Page 103387]]

application of the mandatory bars to statutory withholding of removal. 
Also, as also noted in the NPRM, the Department has experience applying 
both the Third-Country-Transit Bar and the CLP presumption of 
ineligibility for asylum. See 89 FR at 41354. Further, since the 
Securing the Border IFR's publication, the Department has experience 
applying the Securing the Border rule's limitation on eligibility for 
asylum during the credible fear stage. See 8 CFR 208.35, 1208.35. 
Although these limitations on asylum eligibility differ from the 
mandatory bars that AOs will have discretion to consider under this 
rule, AOs' demonstrated ability to apply them of asylum ineligibility 
in credible fear screenings supports the Department's assessment that 
certain statutory mandatory bars that may be easily verifiable can be 
effectively applied in screening interviews. Additionally, DHS remains 
confident that the population to which this rule will apply is likely 
to be relatively small, as informed by the number of cases with bars 
flagged by USCIS during screenings conducted during FY 2020-FY 2024. 
Please refer to Section V.A.2 and Table 4 below. Furthermore, the 
Department believes that the permissive nature of the rule obviates the 
due process concerns that were articulated in the 2022 Asylum 
Processing IFR. Under the current rule, AOs will only consider the 
mandatory bars where there is easily verifiable evidence that a 
mandatory bar applies, and AOs will retain the discretion to decline to 
consider a mandatory bar if they determine that the evidence is not 
easily verifiable, that they cannot efficiently gather sufficient 
information to make a determination on a mandatory bar, or if they 
believe that the evidence is such that the issue would be more fairly 
considered at a later stage.
    This rule will not require the expenditure of resources in most 
screening interviews. Instead, it will rather serve as an operational 
flexibility when the AO determines that there is easily verifiable 
information that a mandatory bar applies and that they can efficiently 
handle the issue in the context of a screening interview. Thus, DHS 
does not believe that the current rule is inconsistent with the central 
concerns that drove USCIS' historical practice and does not represent a 
reversal of prior judgment. Instead, the rule will allow for 
consideration of mandatory bars in limited instances where applying the 
bar at the earliest possible stage would enhance public safety or 
national security and overall operational efficiency.
    Comment: One commenter stated that the proposed rule would permit 
``AOs to violate the non-refoulement mandate so long as an `indicia' of 
the five bars is present.''
    Response: DHS believes this comment misstates the provisions of the 
proposed rule. Prior to conducting a more fulsome consideration of a 
mandatory bar, the AO would determine whether there is easily 
verifiable information in the record that the mandatory bar applies to 
the noncitizen. However, under the rule, before the issuance of a 
negative determination, the AO would need to elicit all relevant 
testimony to provide the noncitizen an opportunity to demonstrate the 
relevant likelihood that the bar does not apply, or that an exception 
or exemption to the bar applies, and determine that the noncitizen 
failed to so demonstrate at the appropriate standard of proof.\69\ In 
the credible fear context, for example, the evidence would need to be 
sufficient to show that there is not a significant possibility that the 
bar would not apply and that there is not a significant possibility 
that an exemption or an exception applies, including, for example, that 
the noncitizen can establish a reasonable possibility of torture. The 
application of this standard of proof is substantially different from 
AOs issuing negative screening determinations based on ``an indicia 
[sic]'' that one of the bars might apply.
---------------------------------------------------------------------------

    \69\ See 8 CFR 208.30(d) (``The purpose of the interview shall 
be to elicit all relevant and useful information bearing on whether 
the alien can establish a credible fear of persecution or 
torture.'').
---------------------------------------------------------------------------

    Further, the application of the statutory bars to a noncitizen's 
claim does not violate the United States' non-refoulement obligations 
as discussed earlier in this section IV.C.1.
    Comment: One commenter opposed the proposed rule on the basis of 
their belief that current USCIS policy for overcoming mandatory bars 
requires that the noncitizen show by a preponderance of the evidence 
that the ground does not apply, if the evidence indicated that a ground 
for mandatory denial or referral exists. The commenter's stated 
understanding is that the rule would contradict congressional intent 
and Federal court ruling that apply a significant possibility standard 
to credible fear screenings.
    Response: Nothing in this proposed rule modifies the standard of 
proof that applies to any of USCIS' screenings. In the credible fear 
context, the significant possibility standard of proof would continue 
to apply to all questions related to asylum, including the possible 
application of the mandatory bars. These include, where applicable, 
whether there is a significant possibility a noncitizen could 
demonstrate they are not subject to or are excepted from the CLP rule's 
presumption of ineligibility for asylum (or that they could rebut the 
presumption), or whether there is a significant possibility they could 
demonstrate they are not subject to or are excepted from the Securing 
the Border rule's limitation on asylum eligibility. DHS acknowledges 
that noncitizens subject to the CLP rule's presumption of ineligibility 
for asylum or to the Securing the Border rule's limitation on 
eligibility for asylum would be screened for statutory withholding of 
removal, including mandatory bars (if considered), and protection under 
the CAT at the reasonable possibility and reasonable probability 
standards, respectively.
2. DHS's Justification, Background, and Statements on Need for the Rule
    Comment: One commenter objected to the proposed rule for not 
adequately explaining how AOs would reliably be able to apply the 
mandatory bars during screening interviews without wasting resources or 
making unwarranted negative findings.
    Response: AOs regularly receive training on screening and 
adjudication, including the application of mandatory bars. AOs will 
consider the mandatory bars only in cases where the evidence is easily 
verifiable that a bar may apply, and where they believe they can 
efficiently address the issue during the screening interview. 
Determinations by AOs are subject to review within USCIS, including 
review by a supervisory asylum officer. See, e.g., 8 CFR 208.30(e)(8). 
Noncitizens also have the right to request immigration judge review of 
any negative screening determination.
    Comment: Several commenters argued that DHS's reliance on its 
success in implementing the CLP rule to help justify this proposed rule 
is misplaced because the application of the CLP rule has resulted in 
unlawful refoulement of noncitizens.
    Response: DHS's experience with the CLP rule is relevant to this 
rule as it demonstrates that AOs are able to fairly and efficiently 
apply a rebuttable presumption of asylum ineligibility as part of a 
screening interview. The CLP rule and complementary measures have been 
in effect since May 11, 2023, and DHS and DOJ have been able to 
implement it without interruption. This experience has helped DHS 
significantly increase its capacity to screen noncitizens encountered 
at the border

[[Page 103388]]

under expedited removal and move them through the process more quickly 
than before the rule and complementary measures.\70\ Now that it is 
clear a rebuttable presumption of asylum ineligibility can be applied 
effectively during the credible fear process, the Department wishes to 
provide the AOs with discretion to apply certain mandatory statutory 
bars that may be easily verifiable in screening interviews.
---------------------------------------------------------------------------

    \70\ For example, as discussed in the Securing the Border IFR, 
CBP placed, on average, more than 970 individuals encountered at and 
between POEs each day into expedited removal between May 12, 2023, 
and March 31, 2024, and USCIS conducted a record number of credible 
fear interviews (more than 152,000) resulting from such cases. 89 FR 
at 48724. This is more interviews from SWB encounters at and between 
POEs during the same time span 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. Id.
---------------------------------------------------------------------------

    The Department disputes the assertion that noncitizens have been 
unlawfully removed from the United States due to the application of the 
CLP rule. Under the CLP rule, noncitizens have several protections 
against removal, including demonstrating exceptionally compelling 
circumstances at the time of entry to rebut the presumption of 
ineligibility for asylum, as well as screening for statutory 
withholding of removal and protection under the regulations 
implementing U.S. obligations under Article 3 of the CAT.\71\ In 
addition, as noted above, the United States has implemented its non-
refoulement obligations through statutory withholding of removal under 
INA sec. 241, 8 U.S.C. 1231, not the discretionary asylum provisions in 
section 208 of the INA, 8 U.S.C. 1158. Accordingly, it is not unlawful, 
or a violation of the United States' non-refoulement obligations, to 
remove a noncitizen found ineligible for asylum because they lack a 
credible fear under CLP and further found not to have demonstrated a 
reasonable possibility of persecution or torture for the purposes of 
statutory withholding of removal or protection under the Convention 
Against Torture regulations.
---------------------------------------------------------------------------

    \71\ See 88 FR at 31452; Moncrieffe v. Holder, 569 U.S. 184, 187 
n.1 (2013).
---------------------------------------------------------------------------

    Comment: Several commenters opposed the justification for the 
proposed rule stating that if at most 4 percent of the cases would be 
affected, the proposed rule would not result in a meaningful portion of 
the EOIR caseload being eliminated. Similarly, several commenters 
objected to the justification for the proposed rule stating that the 
extremely limited number of cases it would apply to does not justify 
the unfairness of expecting newly arrived and often unrepresented 
noncitizens to prove that mandatory bars do not apply to them.
    Response: The proposed rule is not intended primarily as a backlog 
reduction tool. The rule expands DHS's ability to more quickly remove 
noncitizens who are enforcement priorities: those who present national 
security or public safety threats.
    DHS does believe that the rule will conserve interagency government 
resources. Most significantly, noncitizens who are subject to the 
mandatory bars often must be detained throughout their removal 
proceedings. By issuing a decision at the earliest possible stage, 
Immigration and Customs Enforcement's (ICE's) detention resources are 
conserved in these cases. In addition, the rule would prevent some non-
meritorious cases from adding to the immigration court pending 
caseload.
    The Department acknowledges, however, that this rule will apply 
only to a small subset of cases, as explained in section V.A.3 of this 
preamble describing the low percentage of credible fear and reasonable 
fear cases in which AOs have flagged the possible applicability of 
mandatory bars and is therefore not likely to result in a significant 
reduction in EOIR's caseload. See Section V.A.2 and Table 4 below. 
Nevertheless, in the context of an immigration system that lacks the 
full resources needed to handle its workload, even small efficiency 
gains are important and may result in speedier decisions for other 
noncitizens.
    Comment: One commenter took issue with the justification for the 
proposed rule based on efficiency gains, stating that the proposed rule 
``will most certainly increase the time spent interviewing and writing 
up a decision for those asylum officers who choose to consider a bar in 
any given credible or reasonable fear interview and for their 
supervisors.'' The same commenter stated that the proposed rule is 
silent on scheduling procedures for cases potentially impacted by the 
proposed rule, and does not acknowledge that the additional time spent 
considering bars will contribute to the asylum backlog. Another 
commenter similarly stated that by adding time to screening interviews, 
the proposed rule does not save resources so much as frontload the 
expenditure of resources on issues that may end up being relitigated at 
a later stage.
    Response: DHS disagrees with the commenter that the rule will 
significantly increase the time spent on screening interviews and 
decision making by USCIS. As the rule allows for permissive 
consideration of the mandatory bars, AOs will only expend additional 
resources interviewing when there is easily verifiable evidence that a 
mandatory bar may apply and the AO believes they can efficiently 
address the issue during a screening interview. Under current 
procedures, AOs are already required to ask questions regarding the 
mandatory bars in all screenings. DHS expects that, in the majority of 
cases, no additional new questions will need to be asked under this 
rule.
    DHS does not anticipate the need to change the way it schedules 
screening interviews as a result of this rule. Scheduling procedures 
must be able to be quickly modified due to changes in workflow and are 
not managed through regulations.
    The Department recognizes that where AOs exercise discretion to 
apply a mandatory bar at the screening stage because they believe the 
bar can efficiently and effectively be addressed in the screening, AOs 
may need to devote additional time developing the record as to that bar 
and analyzing the bar in the written determination. At the same time, 
where the AO bases a negative credible fear of persecution 
determination on the application of a mandatory bar, they will not have 
to perform a written credible fear of persecution analysis as to the 
merits of the persecution claim. Additionally, the Department believes 
that, in those cases, any possible added time will be offset by the 
efficiency gain to the broader immigration system as a whole of 
preventing noncitizens who are subject to a mandatory bar and would not 
otherwise be able to establish eligibility for protection under CAT 
from being placed in removal proceedings.
    Comment: One commenter objected to the amount of discretion for 
individual AOs provided by the proposed rule, coupled with the lack of 
guidance provided by the proposed rule regarding when AOs should 
consider mandatory bars. The commenter stated that this amount of 
discretion could lead to impermissible discrimination or profiling 
based on characteristics of the noncitizen. Another commenter objected 
to the lack of guidance or examples provided in the proposed rule about 
when the permissive consideration of bars would be appropriate, stating 
that AOs would need to ``prophesy that such consideration would be fair 
and efficient before spending the time to delve into all the nuances of 
the case.''
    Response: The rule provides discretion for AOs to consider 
mandatory bars as a tool to maximize operational flexibility. However, 
AOs'

[[Page 103389]]

discretion under the rule is not unbounded. All of the determinations 
made by AOs in a screening interview are subject to supervisory review, 
and, for negative determinations, to review by immigration judges if 
requested by the noncitizen.
    Decisions on whether the evidence of a mandatory bar present in the 
case is easily verifiable and can be dealt with efficiently in the 
context of a screening interview is necessarily fact specific. AOs are 
trained to consider evidence \72\ in the context of where and from whom 
the noncitizen claims fear, to assess the reliability of that evidence, 
and to consider testimonial evidence from the noncitizen. Moreover, AOs 
are well-versed in evaluating evidence as it relates to applying 
mandatory bars in the context of the affirmative asylum caseload and in 
conducting fear determinations generally; accordingly, they are well-
positioned to make the discretionary decision whether it would be 
efficient and effective to apply a mandatory bar in an individual fear 
screening, given the evidence available in the record.
---------------------------------------------------------------------------

    \72\ USCIS, RAIO Directorate--Officer Training: Evidence (Apr. 
24, 2024).
---------------------------------------------------------------------------

    Comment: Several commenters stated that DHS failed to provide any 
basis for what they described as a conclusory statement that the 
juncture at which the bars' applicability is considered would have any 
bearing on public safety or national security merely because those 
issues are the subject of the relevant mandatory bars.
    Response: Quickly removing noncitizens who may constitute a public 
safety or security threat is a high priority for the Department. Many 
of the noncitizens who would ultimately be subject to the mandatory 
bars that AOs may consider under this rule could, based on the same 
evidence, be considered public safety or national security threats. By 
prioritizing decisions and consequences for these noncitizens, the 
Department hopes to create disincentives to other noncitizens who may 
constitute public safety or national security threats who may be 
considering travelling to the United States.

D. Proposed Application of Mandatory Bars

1. Noncitizens in Credible Fear and Reasonable Fear Screenings (8 CFR 
208.30 and 8 CFR 208.31)
    Comment: One commenter expressed concerns over potential 
limitations of telephonic credible and reasonable fear interviews, 
including privacy during the interview and the ability of the AO to 
assess non-verbal cues. Some commenters expressed concern that 
noncitizens in the screening process do not have adequate time to rest 
and prepare for their interviews.
    Response: Concerns about privacy during screening interviews and 
the limitations of telephonic interviews are outside the scope of this 
rulemaking, as this rulemaking will not affect the mechanics how DHS 
conducts credible fear and reasonable fear interviews. AOs already 
elicit information related to potential mandatory bars during screening 
interviews, and screening interviews are protected by regulations 
governing confidentiality. 8 CFR 208.6, 1208.6. For detained 
noncitizens, DHS provides private spaces so that noncitizens may speak 
freely to the AO during their interview, although, in some facilities, 
an officer may be present on site for safety purposes.\73\ Telephonic 
credible fear and reasonable fear interviews are the current, 
longstanding policy,\74\ and while AOs are not able to assess all 
nonverbal cues telephonically, they are able to assess some, such as 
tone of voice, inflection, and other auditory nonverbal communications. 
The Department notes that it, along with DOJ, addressed similar 
comments related to the conditions in which credible fear interviews 
are conducted in the Securing the Border Final Rule.\75\
---------------------------------------------------------------------------

    \73\ Credible Fear Procedures Manual, Section III.D.3 (May 10, 
2023); Perryman, Brian R. INS Office of Field Operations. Security 
and Privacy Provisions for Credible Fear Interviews Under Expedited 
Removal, Memorandum to Regional Directors, District Directors, 
Assistant District Directors for Detention and Deportation and 
Asylum Office Directors (Washington, DC: 1 July 1997).
    \74\ See USCIS ``Credible Fear Procedures Manual,'' Section 
III.E.1, https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf; USCIS, ``Reasonable Fear 
Procedures Manual,'' Section III.E.1, https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf.
    \75\ See 89 FR at 81201-02.
---------------------------------------------------------------------------

2. Noncitizens Subject to CLP Presumption of Ineligibility, Statutory 
Withholding of Removal Screening (Sec.  208.33)
    Comment: A few commenters expressed opposition to the proposed 
rule's inclusion of noncitizens subject to the CLP presumption of 
eligibility. One such commenter wrote that the provision to assess 
certain bars when the CLP rule applies could detrimentally affect the 
most vulnerable, including those fleeing oppressive regimes, adding 
that people fleeing countries where they face persecution do not have 
the time or means to navigate the complex and, at times, inaccessible 
legal pathways to asylum in the United States. The commenter also 
stated that empowering AOs to apply the bars would defy basic 
principles of fairness, increasing barriers for those subject to both 
the CLP rule and this proposed rule.
    Response: The Department rejects the commenters' claims that 
analysis of the mandatory bars alongside the application of CLP could 
disproportionately impact certain vulnerable populations and that the 
rule defies principles of fairness. Commenters did not provide any 
explanation for why applying mandatory bars in the context of 
screenings under the CLP rule, which is intended to promote lawful, 
safe, and orderly pathways to the United States and to benefit 
particularly vulnerable groups by removing the incentive to make a 
dangerous irregular migration journey, would disproportionately impact 
any class of noncitizens. See 88 FR at 31314. Further, as noted 
elsewhere, this rule does not change substantive eligibility for asylum 
or for withholding of removal, so the discretionary authority of AOs 
provided by this rule to consider the covered statutory bars in CLP 
screening interviews will not affect the ultimate forms of relief 
available to a noncitizen. The Department will apply the rule fairly 
and emphasizes that the Department believes that this rule will impact 
a relatively small number of individuals who are not eligible for 
protection because they present a national security or public safety 
threat.
    To the extent that commenters' concerns regard the merits of the 
CLP limitation on asylum eligibility, such concerns are outside the 
scope of this rule. The Department previously accepted comments on that 
rule and responded to those in the CLP final rule. 88 FR at 31324-441.
3. Inclusion of Specific Bars (e.g., Particularly Serious Crimes Bar, 
Security Bar)
    Comment: Some commenters expressed concerns over the potential 
application of the persecutor bar with the limited time available for a 
screening interview. A commenter wrote that the persecutor bar should 
not be applied in fear screenings because it involves complex factual 
inquiries and has unsettled legal questions. Some commenters wrote that 
key questions of fact and law remained as to whether international 
treaty obligations required the consideration of duress in 
determinations involving the persecutor bar, or as to whether the 
failure to recognize the duress exception unfairly

[[Page 103390]]

harms bona fide asylum seekers, among other issues. Commenters also 
stated that AOs would need to make a prompt assessment of whether the 
duress exception applies, an area of law that is unsettled. The result, 
the commenter stated, would be erroneous applications of the bar based 
on poor factual development and rushed legal analysis. These commenters 
wrote that this analysis should occur at the merits stage, not in the 
expedited removal setting.
    Response: The Department understands the complexities of the 
persecutor bar,\76\ but it disagrees with the commenters' statements 
that analysis of the persecutor bar is legally and factually too 
complex to be analyzed in a screening interview and that the extensive 
factual development required would lead to erroneous application of the 
bar. AOs already inquire into the potential applicability of mandatory 
bars, including the persecutor bar, during credible fear and reasonable 
fear screenings, noting any relevant information in the record. While 
many cases implicating the persecutor bar involve complex factual and 
legal issues, not all do. For example, a noncitizen who admits in 
credible testimony under oath to having voluntarily forced a woman to 
abort a pregnancy as part of the noncitizen's work as a health ministry 
official charged with enforcing the Chinese government's ``one child 
policy'' when it was in effect would clearly be barred from asylum and 
statutory withholding of removal as a persecutor.\77\
---------------------------------------------------------------------------

    \76\ For example, the possible ``duress exception'' referenced 
by commenters has had multiple interpretations over the years from 
the Board of Immigration Appeals and the Attorney General. See 
Negusie v. Holder, 555 U.S. 511 (2009) (``Negusie I'') (overruling a 
prior Board decision finding the plain language of the statute not 
allowing for a duress defense or exception and declaring the 
persecutor bar ambiguous as to consideration of duress or coercion); 
Matter of Negusie, 27 I&N Dec. 347 (BIA 2018) (``Negusie II'') 
(interpreting the persecutor bar for asylum as including a narrow 
duress defense); Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020) 
(``Negusie III'') (finding the plain language of the persecutor bar 
as not allowing for consideration of duress); Matter of Negusie, 28 
I&N Dec. 399 (A.G. 2021) (``Negusie IV'') (ordering the Board to 
refer Negusie's case to the Attorney General and staying Negusie's 
case pending the Attorney General's review). The Attorney General's 
decision in Negusie III remains in effect, and any further review 
remains pending.
    \77\ See Xie v. INS, 434 F.3d 136, 143 (2d Cir. 2006) (holding 
that ``transporting captive women to undergo forced abortions'' 
pursuant to the one-child policy was assistance in persecution).
---------------------------------------------------------------------------

    Furthermore, the persecutor bar shares multiple elements with the 
refugee definition at section 101(a)(42)(A) of the INA, 8 U.S.C. 
1101(a)(42)(A), that officers must analyze in every asylum case, 
including whether the harm at issue rises to the level of persecution 
and whether it was or would be inflicted on account of one of the five 
protected grounds. The only additional considerations in the persecutor 
bar analysis involve analyzing the applicant's participation in (rather 
than experience or fear of) persecution, that is, whether the applicant 
ordered, incited, assisted, or otherwise participated in the 
persecution, and analyzing whether the applicant had the requisite 
knowledge that the persecution was being or would be carried out. While 
these additional elements may in some cases introduce a level of 
complexity that would counsel against consideration of the persecutor 
bar in a screening context, they do not necessarily do so in every 
case. This significant overlap with the refugee definition analysis, 
which AOs must routinely conduct in both credible fear screenings and 
affirmative asylum adjudications, demonstrates that considering the 
persecutor bar need not involve complex legal or factual issues in 
every case in which it arises and that in some cases where there is 
clear evidence it does apply, AOs will be able to address it 
efficiently in credible fear or reasonable fear screenings.
    Where there is evidence available to the AO that triggers an 
inquiry into an applicable mandatory bar, and the AO can address that 
bar efficiently at the screening interview, then the noncitizen will be 
given the opportunity to establish, at the relevant standard, that the 
bar would not apply. Under this rule, AOs will have the flexibility to 
apply certain mandatory bars during screenings as it relates to 
eligibility for asylum and statutory withholding of removal, and the 
individual will continue to have the opportunity to establish a 
credible or reasonable fear of torture. Notably, this rule would not 
require AOs to consider applicability of mandatory bars as part of a 
fear determination.\78\ Such a requirement would reduce operational 
flexibility by potentially adding hours to interviews in which there 
are indicia that a bar might apply, but for which applicability is 
unclear.\79\ Moreover, this proposed rule would not disturb the long-
standing regulation establishing that in making credible fear 
determinations, AOs ``shall consider whether the [ ] case presents 
novel or unique issues that merit consideration in a full hearing 
before an immigration judge.'' 8 CFR 208.30(e)(4). This rule also 
preserves the option for noncitizens to be placed in an AMI or in 
proceedings before an immigration judge when evidence surrounding a 
possible mandatory bar needs to be further developed, as is currently 
the practice. Likewise, ICE will retain the ability to detain or 
otherwise monitor the noncitizen in those cases. See INA sec. 
235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(1)(ii); 8 CFR 208.9; see also 
INA sec. 212(d)(5)(A), 8 U.S.C 1182(d)(5)(A); 8 CFR 212.5(d), 
235.3(b)(4)(ii). The Department believes this discretion will safeguard 
against erroneous application of the bar when it is clear that further 
evidence or interviews are needed. This is why preserving the AO's 
discretion in analyzing the mandatory bars is integral to the rule.
---------------------------------------------------------------------------

    \78\ The Global Asylum Rule took a different approach than this 
proposal, requiring that AOs consider multiple mandatory bars. See 
85 FR 80274, 80278 (Dec. 11, 2020) (``DHS requires asylum officers 
to determine . . . whether an alien is subject to one or more of the 
mandatory bars''). This proposed rule would not require such 
consideration.
    \79\ Because credible fear screenings are conducted at the 
significant possibility standard, in cases where the application of 
a bar is not obvious, requiring the AO to consider application of a 
bar would likely result in significantly extended interviews with no 
meaningful outcome because relevant information might not be 
available to the officer at screening even with a significantly 
extended interview.
---------------------------------------------------------------------------

    Comment: Some commenters also stated that the particularly serious 
crime bar is legally and factually complex and thus is inappropriate 
for inclusion in screening interviews. Commenters added that, since the 
bar is different for asylum and statutory withholding of removal, 
applying this bar in both credible fear and reasonable fear interviews 
would be confusing for AOs who are assigned to do both types of 
screenings. A commenter further reasoned that there is no indication 
that the application of the particularly serious crime bar would have 
any meaningful impact on screening interview efficiency because the 
particularly serious crime provision applies in circumstances where an 
individual has a conviction inside the United States, and most people 
undergoing a credible fear interview will not have been present in the 
United States previously and thus are unlikely to have been convicted 
of such a crime. Instead, the commenter wrote, this bar would likely 
only apply in the reasonable fear context to narrow subset of 
individuals. The commenter suggested that, if the Department moves 
forward with this proposed rule, it should, at minimum, remove the 
application of this bar from the factors to be considered.
    Response: The Department disagrees with commenters' statements that 
the particularly serious crime bar analysis is

[[Page 103391]]

legally and factually too complex to be analyzed in a screening 
interview and that any factual development required during a screening 
interview would lead to erroneous application of the bar. AOs already 
inquire into the potential applicability of mandatory bars, including 
the particularly serious crime bar, during credible fear and reasonable 
fear screenings, noting any relevant information in the record. The 
Department also disagrees with the comment that because the 
particularly serious crime bar is applied differently in asylum and 
withholding of removal, it will be confusing for AOs to analyze. As 
previously stated, AOs are highly capable of assessing mandatory bars 
at the credible fear screening, based on their specialized training in 
asylum law. AOs will also retain discretion not to analyze the bars, 
especially where it is clear that further evidence and fact-gathering 
is needed. AOs receive continuous training on relevant topics to ensure 
their ability to conduct thorough interviews and make legally 
sufficient determinations.
    The Department also disagrees with the comment that the rule will 
lack meaningful impact on interview efficiency because the particularly 
serious crime bar applies to U.S. convictions and is unlikely to impact 
many noncitizens. The particularly serious crime bar may apply to both 
U.S. and foreign convictions, depending on the facts surrounding the 
noncitizen's conviction, the noncitizens' immigration history, and when 
a fear claim is made. See 8 CFR 208.13(c); INA secs. 208(b)(2)(A)(ii), 
241(b)(3)(B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). While 
the Department believes this rule will impact a very small number of 
noncitizens who will be removed early on in the immigration process, 
this impact is still meaningful because it will free resources further 
in the process, specifically with EOIR, ICE, and CBP to process other 
cases more expeditiously. Inclusion of the particularly serious crime 
bar in this rule serves a Department priority: to protect the public 
from noncitizens who pose national security and public safety concerns.
    Comment: Some commenters expressed concern with the application of 
the serious nonpolitical crime bar. Another wrote that the serious 
nonpolitical crime bar is not defined in the INA and does not require 
an arrest or conviction and the application of this bar is legally and 
factually intensive and contingent on the reliability of the available 
evidence. A commenter stated the reliability of the evidence would be 
subject to the circumstances of hundreds of different legal systems 
from around the world. Some commenters expressed concern that the 
analysis of the bar is too complex for screening interviews and 
applying this bar could require extensive factual development and 
review of evidence by AOs, which would further delay findings or lead 
to erroneous application of the bar. A commenter is contingent on 
available and reliable evidence from foreign legal authorities.
    Response: While the INA does not define the phrase ``serious 
nonpolitical crime,'' there is substantial case law involving the 
serious nonpolitical crime bar \80\ that provides guidelines for AOs 
when they encounter potential bar concerns. AOs already inquire into 
the potential applicability of mandatory bars, including the serious 
nonpolitical crime bar, during credible fear and reasonable fear 
screenings, noting any relevant information in the record. The 
Department appreciates the concerns noted in some of the comments, 
namely that application of the serious nonpolitical crime bar is 
legally and factually intensive and that, if improperly applied, 
noncitizens may be denied due process or returned to places of 
persecution. The Department is aware that analysis of the bar requires 
a case-by-case evaluation of the facts and circumstances presented, but 
as previously stated, AOs retain discretion to analyze the mandatory 
bars, and may choose not to analyze the bar when it is clear in a given 
case that additional analysis is needed. The Department is fully 
committed to providing sufficient procedural safeguards consistent with 
the purpose of the expedited removal process and believes that where 
the potential bar analysis requires more fact-gathering and analysis 
than can be completed during the screening interview, the noncitizen 
may be placed in the AMI process or section 240 removal proceedings 
before an immigration judge so that further analysis can occur. 
Furthermore, not every case involving the serious nonpolitical crime 
bar is factually and legally complex. For example, if the record 
contains an authenticated record of conviction of the noncitizen for 
rape from the government of the United Kingdom, such easily verifiable 
evidence could be efficiently considered by an AO in the context of a 
credible fear or reasonable fear screening.
---------------------------------------------------------------------------

    \80\ See INS v. Aguirre-Aguirre, 526 U.S. 415 (1999); Matter of 
E-A-, 26 I&N Dec. 1 (BIA 2012).
---------------------------------------------------------------------------

    Comment: Commenters also expressed concerns regarding the inclusion 
of the statutory security bars at INA secs. 208(b)(2)(A)(iv) and 
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) and 1231(b)(3)(B)(iv). A 
commenter expressed concern about expecting AOs to assess whether an 
individual poses what the commenter called a ``true security threat'' 
to the United States during a screening interview. Citing case law, the 
commenter stated there is unanimous agreement among foreign courts, 
international law experts, and Congress' legislative history that this 
bar was conceived as a narrow exception to non-refoulement obligations. 
In considering the high threshold for meeting the bar, the commenter 
said Congress did not intend to allow DHS to improperly subject asylum 
seekers to this bar and remove ``otherwise-eligible asylees who do not 
present genuine security threats to the United States,'' citing 
Hernandez v. Sessions, 884 F.3d 107, 113 (2d Cir. 2018). Echoing other 
comments on the bars, the commenter additionally stated that the 
security bar requires a factual and legal analysis that would 
substantively lengthen the time and resources that AOs need. 
Furthermore, the commenter wrote, the risk of misapplying this bar 
would be great.
    Response: The Department rejects the concerns about AOs' ability to 
assess whether a noncitizen poses a danger to the security of the 
United States, that bar analysis will increase time and resources 
needed, and that the risk of misapplication of the bar is great. As 
previously stated, AOs will retain discretion to consider the bars at 
the screening interview. AOs already inquire into the potential 
applicability of mandatory bars, including the danger to the security 
of the United States bar, during credible fear and reasonable fear 
screenings, noting any relevant information in the record. Furthermore, 
while the danger to the security of the United States bar often 
involves complex factual and legal analysis, not every case in which it 
arises does. For example, testimony under oath by a noncitizen who 
admits to being an agent of a hostile foreign government who attempted 
to irregularly enter the United States for the sole purpose of 
conducting espionage targeting U.S. military bases would clearly 
indicate the bar may apply. Faced with such evidence, AOs should not be 
precluded from considering the applicability of the bar in a screening 
interview.
    Comment: Commenters also expressed concern over the inclusion of 
the terrorism-related statutory bars at INA secs. 208(b)(2)(A)(v) and 
241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(v) and 1231(b)(3)(B)(iv). A 
commenter stated that the terrorism bars have a history of wrongfully 
labeling

[[Page 103392]]

individuals as terrorists and barring them from protection in the 
United States, writing that these provisions have been used against 
Afghan individuals and have been a vehicle for family separation. The 
commenter concluded that applying the terrorism bars at the credible 
fear interview and reasonable fear screening stage neither complies 
with domestic and international refugee law, nor comports with U.S. 
national security interests.
    Response: The Department disagrees with the comment that applying 
the terrorism bars in the screening interview neither complies with 
domestic and international refugee law, nor comports with U.S. national 
security interests. One of the Department's primary purposes is to 
maintain national security by securing U.S. borders and protecting the 
country from national security threats, including terrorism. As 
previously mentioned, the number of noncitizens impacted by this rule 
is expected to be modest. The Department believes that identifying and 
removing noncitizens subject to the bars early in the process increases 
efficiencies in the immigration system while also maintaining national 
security. The U.S. government works to protect national security while 
upholding our humanitarian mandates, in accordance with our domestic 
and international obligations. In applying the terrorism bars, the 
Department also considers numerous exceptions or discretionary 
exemptions to the bars that may apply, including, for example, 
situational exemptions for insignificant material support, certain 
limited material support, exemptions for Afghan allies and civil 
servants, and group-based exemptions.\81\ These exemptions are a 
reflection of the Department's understanding that mandatory bar 
application is a case-by-case analysis and that noncitizens seeking 
protection may have faced unique circumstances that may warrant a 
discretionary exemption from the mandatory bar if threshold 
requirements are met and an exemption is warranted in the totality of 
the circumstances. The Department again states that the AO would retain 
discretion to analyze a mandatory bar at the screening stage and if 
further evidence, interviews, or analysis are needed, may opt not to 
analyze that bar during the screening. Instead, if the noncitizen 
receives a positive determination, the bar would be fully explored in 
an AMI or in front of the immigration judge. Finally, the claim that 
the terrorism bars have wrongfully labelled noncitizens as terrorists, 
and specifically has been used against Afghan noncitizens and as a 
vehicle for family separation, is inapposite, as this rule does not 
substantively amend the contours of who may be subject to this 
statutory bar.
---------------------------------------------------------------------------

    \81\ See USCIS, ``Terrorism-Related Inadmissibility Grounds--
Group-Based Exemptions,'' https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig/terrorism-related-inadmissibility-grounds-trig-group-based-exemptions (last visited Aug. 29, 2024); and USCIS, ``Terrorism-
Related Inadmissibility Grounds--Situational Exemptions,'' https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig/terrorism-related-inadmissibility-grounds-trig-situational-exemptions (last visited Aug. 29, 2024).
---------------------------------------------------------------------------

4. Exclusion of the Bars To Applying for Asylum and of the ``Firm 
Resettlement'' Bar, INA Secs. 208(a)(2), (b)(2)(A)(vi)
    Comment: A few commenters expressed appreciation that the firm 
resettlement bar is excluded from this rule. A few commenters expressed 
concern that the rule excludes consideration of the firm resettlement 
bar and believe that officers should be required to consider all bars 
during the screening process. Another commenter expressed concern that 
the rule excludes consideration of the safe third country exception. A 
commenter found the decision to not extend the consideration of the 
firm resettlement bar to protection screenings selective and makes the 
decision to consider the other bars at this stage ``questionable.'' A 
commenter suggested DHS should require AOs to consider all bars to 
asylum and statutory withholding of removal in fear screenings, 
including the bars to applying for asylum at INA sec. 208(a)(2), 8 
U.S.C. 1158(a)(2). The comment stated that it is arbitrary to exclude 
all the bars from the rule. A commenter expressed concern that analysis 
of the firm resettlement bar in particular is complex and it will be 
difficult to properly analyze the bar during the screening process.
    Response: DHS declines to include consideration of the bars to 
applying for asylum--other than the safe third country bar as already 
provided in 8 CFR 208.30(e)(6) for purposes of implementing the U.S.-
Canada Safe Third Country Agreement--and the firm resettlement bar in 
fear screenings. Doing so would undermine the efficiency of fear 
screenings and would not be a productive use of Department resources. 
The overwhelming majority of noncitizens placed into the expedited 
removal process who are referred for credible fear screenings appear 
before an AO within days or weeks of arrival in the United States and 
are therefore not subject to the 1-year filing requirement at INA sec. 
208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Furthermore, the safe third 
country bar to applying for asylum at INA sec. 208(a)(2)(A), 8 U.S.C. 
1158(a)(2)(A) currently only applies to certain noncitizens arriving 
from Canada. The regulation at 8 CFR 208.30(e)(6) already provides 
procedures for credible fear screening of such noncitizens, so doing so 
in this rule would be duplicative. The bar to applying for asylum based 
on the noncitizen having previously applied for and been denied asylum 
at INA sec. 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C) is subject to an 
exception for changed circumstances materially affecting eligibility 
for asylum codified at INA sec. 208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D). 
The necessity of exploring the applicability of this exception during a 
credible fear interview would undermine the efficiency of the 
screening, which is designed to quickly identify noncitizens without a 
legal basis to remain in the United States and ensure those with viable 
claims are able to pursue them in a full merits hearing or AMI. In 
addition, these bars do not serve the same public safety purpose as the 
bars that AOs will have the discretion to consider under this rule.
    The Department acknowledges the comments expressing appreciation 
that the Department did not include the firm resettlement bar in this 
rule, DHS disagrees with comments that the firm resettlement bar should 
be included and that AOs should be required to analyze all bars. One of 
the purposes of this rule is to give AOs discretion, at the earliest 
stage possible, to consider whether a noncitizen is unlikely to be able 
to establish eligibility for asylum or statutory withholding of removal 
because of a mandatory bar that relates to participation in 
persecution, or national security, criminal, or other public safety 
concerns. The Department believes that ignoring these serious concerns 
runs counter to its policy goals. The firm resettlement bar, however, 
does not fall into one of the categories listed above. Moreover, 
although firm resettlement constitutes a mandatory bar to asylum 
eligibility, it is not a bar to eligibility for statutory withholding.
    Furthermore, as DHS explained in the NPRM, 89 FR at 41355, the firm 
resettlement regulations currently in effect, 8 CFR 208.15, 1208.15 
(2020), include a burden-shifting framework that requires the 
Department to bear the initial ``burden of presenting prima facie 
evidence of an offer of firm resettlement'' that can be rebutted by the 
noncitizen. Matter of A-G-G-, 25 I&N Dec. 486, 501 (BIA 2011). This 
framework differs from the analytical

[[Page 103393]]

framework for the security-related bars that are the subject of this 
rulemaking. The Matter of A-G-G- framework and firm resettlement 
definition could make it difficult for AOs to easily verify whether a 
noncitizen is subject to the bar. This difficulty would also undermine 
the efficiency of credible fear screenings, which is contrary to the 
intent of Congress and the purpose of this rule.
5. Exclusion of CAT Screenings (Withholding of Removal) (Sec. Sec.  
208.30(e)(3), 208.33(b)(2)(i), 208.35(b)(2)(i))
    Comment: A commenter expressed concern that noncitizens found 
ineligible for asylum and withholding of removal because of a mandatory 
bar will only be eligible for protection under CAT. This commenter 
believes that CAT protection is an inadequate form of protection. 
Another commenter expressed concern that the rule would provide AOs too 
much discretion to consider mandatory bars and requested limiting 
discretion as related to trafficking victims and those seeking 
protection under CAT.
    Response: This rule does not change the underlying grounds of 
eligibility for asylum, withholding of removal, or protection under the 
Convention Against Torture. The rule only amends the credible fear and 
reasonable fear interview processes to allow AOs to apply certain 
statutory mandatory bars earlier in the process--at the interview stage 
rather than at a later full merits adjudication--than would occur 
without this rule. Accordingly, a noncitizen who is determined to only 
be eligible for CAT protection would also only be eligible for CAT 
protection absent this rule. For these reasons, the Department declines 
to further address commenters' concerns that CAT protection is 
``inadequate'' as they are outside the scope of this rule's changes.
    The Department disagrees with the claim that the rule will provide 
AOs with too much discretion to consider mandatory bars and that 
discretion should be limited as related to certain noncitizens. As 
previously stated, AOs will have discretion to analyze the mandatory 
bars, but where more information or evidence is needed concerning the 
bar and the determination is positive, the noncitizen would proceed to 
an AMI or a hearing before an immigration judge. Furthermore, AOs are 
trained not only in asylum law but also to recognize signs of 
trafficking and follow procedures to assist potential trafficking 
victims.\82\
---------------------------------------------------------------------------

    \82\ USCIS, RAIO Directorate--Officer Training: Detecting 
Possible Victims of Trafficking (Apr. 24, 2024).
---------------------------------------------------------------------------

6. Other/General Comments on the Application of Bars
    Comment: A commenter stated that the rule should not apply to 
family units in the Family Expedited Removal Management (FERM) program 
\83\ because family units often lack legal counsel, may speak uncommon 
languages, and may not have enough time to gather evidence for their 
interviews.
---------------------------------------------------------------------------

    \83\ DHS-ICE, ``ICE announces new process for placing family 
units in expedited removal,'' https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal (May 
10, 2023).
---------------------------------------------------------------------------

    Response: DHS currently places certain non-detained family units in 
the credible fear process in the FERM program. FERM leverages 
alternatives to detention to process families through expedited 
removal, including credible fear screenings, in a non-detained setting. 
FERM is designed to ensure family units in the credible fear process 
participate in a timely credible fear interview and any requested 
review by an immigration judge without being detained.\84\ Placement in 
the FERM program has no impact on the substantive credible fear 
screening nor changes the applicable legal standards. This rule applies 
to credible fear screenings in the non-detained FERM program the same 
as it applies to credible fear screenings that take place in detention. 
As with any other noncitizen in the credible fear screening process, 
AOs have the discretion to apply certain mandatory bars pursuant to 
this rule at the credible fear screening and if applied, noncitizens 
will have the opportunity to present evidence that the bar does not 
apply at the appropriate standard depending on the case. The concerns 
noted in this comment are no different than those mentioned by other 
commenters about the overall population of noncitizens in the screening 
process. As previously stated, noncitizens in credible fear may be 
represented by an attorney at no cost to the government and may consult 
with persons of their choosing. INA sec. 235(b)(1)(B)(iv), 8 U.S.C. 
1225(b)(1)(B)(iv), 8 CFR 235.3(b)(4)(ii); 208.30(d)(4), 8 CFR 
208.31(c). The Department also provides government-contracted 
interpreters if the noncitizen is unable to proceed with the interview 
in English. 8 CFR 208.30(d)(5). The Department emphasizes that the rule 
does not require AOs to consider applicability of the bars in the fear 
determination, including FERM cases, and that the Department estimates 
this will impact a relatively small number of individuals who are not 
eligible for protection.
---------------------------------------------------------------------------

    \84\ DHS-ICE, ``ICE announces new process for placing family 
units in expedited removal,'' https://www.ice.gov/news/releases/ice-announces-new-process-placing-family-units-expedited-removal (May 
10, 2023).
---------------------------------------------------------------------------

7. Screening Procedures, AO Determinations, Immigration Judge Review of 
Negative Fear Determinations
    Comment: A few commenters expressed concern with the proposal to 
make AOs' consideration of the bars at the fear screening stage 
discretionary. For example, commenters expressed concern that the 
opacity of the screening interview process and the discretion given to 
AOs would make it impossible to verify DHS's implied claim that there 
is an easily identifiable population of individuals who are ineligible 
for asylum but are nonetheless subject to screening interviews. The 
commenters indicated this dynamic necessarily means the rule's effects 
would ultimately be obscure and unaccountable to the public.
    Response: DHS disagrees that the processes under which it conducts 
screening interviews are opaque. Regulations governing credible fear 
and reasonable fear screenings conducting by DHS are published at 8 CFR 
208.30, 208.31, 208.33, 208.35, 235.3, and 235.15. USCIS maintains 
information about credible fear and reasonable fear screenings on its 
public website.\85\ Individuals undergoing credible fear screenings 
receive written disclosures about the process. 8 CFR 235.3(b)(4)(i) and 
235.15(b)(4)(i)(B). AOs are required to determine that noncitizens 
undergoing reasonable fear screenings understand the reasonable fear 
determination process. 8 CFR 208.31(c). Noncitizens have the right to 
consult with a person or persons of their choosing before undergoing a 
credible fear interview, and such person or persons may also be present 
at the interview. 8 CFR 208.30(d)(4).

[[Page 103394]]

Noncitizens undergoing reasonable fear interviews may be represented by 
counsel or an accredited representative at the interview. 8 CFR 
208.31(c). After an AO conducts a credible fear screening, the officer 
issues the noncitizen a record of the credible fear determination, 
including copies of the AO's notes, the summary of the material facts, 
and other materials upon which the determination was based. 8 CFR 
208.30(f), (g), 208.33(b)(2)(v), 208.35(b)(2)(v). Noncitizens 
determined to lack a credible fear of persecution or torture may have 
such determinations reviewed by an immigration judge. 8 CFR 208.30(g), 
208.33(b)(2), 208.35(b)(2), 1003.42, and 1208.30(g). Noncitizens 
determined to lack a reasonable fear of persecution or torture are 
informed of the decision in writing and may request review of the 
decision by an immigration judge. 8 CFR 208.31(f) and (g). Supervisors 
review all credible fear and reasonable fear determinations for legal 
sufficiency and compliance with applicable procedures before such 
determinations are issued.\86\ These measures and others ensure the 
credible fear and reasonable fear screening processes are transparent 
and subject to accountability through review, including before an 
immigration judge at the noncitizen's request.
---------------------------------------------------------------------------

    \85\ See USCIS, ``Credible Fear Screenings,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/credible-fear-screenings (last visited June 24, 2024); USCIS, ``Questions and 
Answers: Credible Fear Screening,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening (last visited June 24, 2024); USCIS, 
``Reasonable Fear Screenings,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/reasonable-fear-screenings (last visited 
June 24, 2024); and USCIS, ``Questions and Answers: Reasonable Fear 
Screenings,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-reasonable-fear-screenings (last 
visited June 24, 2024).
    \86\ 89 FR 41347, 41353 (May 13, 2024) (``Rather this rule would 
create the flexibility for the AO to exercise discretion--with 
supervisory review of any decision--on the applicability of bars 
during the screening stage.''); see also USCIS, ``Semi-Monthly 
Credible Fear and Reasonable Fear Receipts and Decisions'' (``All 
credible fear and reasonable fear screening determinations were 
reviewed by either a supervisory asylum officer, occupational series 
0930 or one of a small number of supervisory refugee officers, 
occupational series 1801, serving in the capacity of supervisory 
asylum officers. The supervisory refugee officers are either former 
asylum officers or have been trained and have experience consistent 
with the regulatory and statutory requirements to conduct reviews of 
these cases.''), https://www.uscis.gov/tools/reports-and-studies/semi-monthly-credible-fear-and-reasonable-fear-receipts-and-decisions (last visited June 17, 2024).
---------------------------------------------------------------------------

    DHS disagrees with comments asserting that the discretion the rule 
provides to AOs would make it impossible to verify the implied premise 
of the rule that there is an easily identifiable population of 
individuals who are ineligible for asylum but are nonetheless subject 
to screening interviews and that the effects of the rule would be 
obscure and unaccountable to the public. As discussed in the NPRM and 
in this rule, the premise of the rule is that there are certain cases 
where there is information at the screening stage to show that the 
noncitizen is both (1) subject to a mandatory bar to asylum and/or 
withholding of removal and (2) otherwise unable to meet the requisite 
screening standard for protection under CAT and it is those cases that 
the Department seeks to screen out at an earlier stage, rather than 
having them move forward in the process. 89 FR 41351. The Department 
has been fully transparent and clear about the potential impact of this 
rule as limited to cases where application of a mandatory bar to asylum 
and statutory withholding of removal results in a negative credible 
fear of persecution determination or application of a mandatory bar to 
statutory withholding of removal results in a negative reasonable fear 
of persecution determination, and the noncitizen is otherwise unable to 
establish a fear of torture at the requisite screening standard, since 
application of a mandatory bar will only be outcome determinative if 
the noncitizen is otherwise unable to establish a fear of torture. 89 
FR 41351.
    In individual cases, the application of a mandatory bar resulting 
in a negative credible fear or reasonable fear determination will be 
documented in the record and available for a noncitizen and their 
representative to review. For example, where an AO issues a negative 
credible fear determination with respect to asylum and statutory 
withholding of removal based on the application of a mandatory bar, the 
AO will provide the noncitizen with a written notice of decision and 
issue the noncitizen a record of the credible fear determination, 
including copies of the AO's notes, the summary of the material facts, 
and other materials upon which the determination was based. See 8 CFR 
208.30(g)(1). In any screening determination where the negative 
credible fear or reasonable fear of persecution determination is based 
on the application of a mandatory bar, these materials documenting the 
determination that are served on the noncitizen and their 
representative (if applicable) will provide transparency into how 
application of the mandatory bar resulted in a negative credible fear 
or reasonable fear of persecution determination, in addition to why the 
noncitizen also failed to establish a credible fear or reasonable fear 
of torture.
    Comment: Commenters indicated that the rule provides insufficiently 
clear guidance on how AOs will determine whether a noncitizen is 
clearly ineligible for relief because of a mandatory bar, whether there 
is easily verifiable evidence that warrants inquiry into a mandatory 
bar, or whether the AO can efficiently address the bar in a screening 
interview. A commenter noted that that DHS did not include in the 
regulatory text the limitation that AOs would only consider bars in 
cases where a noncitizen is clearly ineligible and there is easily 
verifiable evidence of bar and did not define ``clearly ineligible'' 
and ``easily verifiable'' in the regulatory text. One commenter 
suggested that the sort of easily verifiable evidence envisioned in the 
rule is a fiction, pointing specifically to foreign legal records as 
problematic given the possibility that they are part of a pretextual 
prosecution. This commenter suggested that there is not a single 
situation of evidence that might appear to be easily verifiable where 
the asylum officer should be confident that they can consider that bar 
efficiently.
    Response: The Department notes that under current practice, AOs do 
not apply mandatory bars to eligibility for asylum and withholding of 
removal during fear screenings, but in cases where there is evidence a 
bar may apply, AOs note the possible applicability of the bar in the 
record. In some such cases, the evidence that a bar applies is clear. 
For example, a noncitizen undergoing a reasonable fear interview may 
have been ordered removed from the United States due to a conviction by 
a final judgment for an aggravated felony under 18 U.S.C. 1956 (money 
laundering), if the amount of funds exceeds $10,000 and the noncitizen 
received a sentence of at least five years' imprisonment. If DHS 
records confirm the noncitizen's identity matches that of the convicted 
person, the noncitizen would clearly be barred from statutory 
withholding of removal due to their conviction for an aggravated felony 
under INA 101(a)(43)(D), 8 U.S.C. 1101(a)(43)(D), and aggregate term of 
imprisonment of at least 5 years. See INA sec. 241(b)(3)(B)(ii), (iv), 
8 U.S.C. 1231(b)(3)(B)(ii), (iv). This rule ends the practice of having 
the AO set aside the bar in making the reasonable fear determination in 
such a case and allows the AO to enter a negative determination if the 
noncitizen is unable to establish a reasonable possibility that the bar 
does not apply or is unable to establish a reasonable fear of torture.
    AOs must complete screenings efficiently and there is no incentive 
for them to consider bars in the absence of easily verifiable evidence. 
DHS believes the regulatory text, along with the guidance in this 
preamble and that of the NPRM, is sufficient to alert the public about 
how AOs will determine whether to consider mandatory bars in fear 
screenings without defining the terms ``clearly ineligible'' and 
``easily verifiable'' in regulatory text. Although

[[Page 103395]]

the Department acknowledges that the type of easily verifiable evidence 
envisioned by this rule may not be available in every case, DHS 
disagrees with the assertion that such evidence is never present in a 
case. AOs are trained to evaluate criminal convictions, including the 
possibility that an arrest or conviction may be the result of a 
pretextual prosecution.\87\ The rule provides that, where such easily 
verifiable evidence exists, the AO may consider gathering additional 
information about the possible application of a mandatory bar, 
including evidence of any exemption or exception to the bar that the 
noncitizen may present.
---------------------------------------------------------------------------

    \87\ See USCIS, ``RAIO Directorate--Officer Training: Mandatory 
Bars to Asylum'' (May 9, 2013).
---------------------------------------------------------------------------

    Comment: A commenter suggested that noncitizens be provided with a 
complete copy of all information relied on by the AO in applying a bar 
to their claim. Another stated DHS should be required to provide 
evidence to the person seeking asylum regarding any potential bar in 
advance of the credible fear interview.
    Response: DHS believes the procedures under current regulations 
provide noncitizens sufficient information about the basis for the 
screening determination. Following the credible fear interview, 
noncitizens receive a copy of all the items required by regulation, 
including copies of the AO's notes, the summary of the material facts, 
and other materials upon which the determination was based. 8 CFR 
208.30(f)-(g). In any case where the application of a mandatory bar to 
asylum or statutory withholding of removal is outcome determinative to 
the credible fear or reasonable fear determination, the AO will provide 
a written analysis related to the application of the mandatory bar in 
the record, which will be served on the noncitizen. If the noncitizen 
has a properly executed Form G-28 on file, a copy of the relevant 
documents will be provided to their legal representative.\88\ For 
negative determinations referred to the IJ for review, USCIS will file 
copies of outcome determinative documents with the immigration 
court.\89\
---------------------------------------------------------------------------

    \88\ Credible Fear Procedures Manual (CFPM), Section III.J; 
Reasonable Fear Procedures Manual (RFPM), Section III.I.
    \89\ Credible Fear Procedures Manual (CFPM), Section III.K; 
Reasonable Fear Procedures Manual (RFPM), Section III.J.
---------------------------------------------------------------------------

    The Department declines to adopt the commenter's suggestion related 
to sharing information in advance of a credible fear interview. USCIS 
does not share information that may relate to mandatory bars with 
noncitizens in advance of their screening determinations or asylum 
adjudications. Rather, when evidence related to a mandatory bar is 
known to USCIS, the noncitizen is given an opportunity to address the 
evidence during the interview. 8 CFR 208.9(e). When information related 
to a mandatory bar is present in the record for a credible fear or 
reasonable fear screening, the AO will ask the noncitizen about the 
information, and the noncitizen will be given an opportunity to address 
any concerns and provide evidence that the mandatory bar does not 
apply.
    Comment: A commenter wrote that it is inappropriate to allow AOs to 
consider bars to statutory withholding of removal because AOs do not 
make decisions on applications for withholding of removal. Commenters 
noted the difference in treatment of aggravated felonies in relation to 
the particularly serious crime bar to withholding of removal under INA 
sec. 241(b)(3)(B)(ii), 8 U.S.C. 1231(b)(3)(B)(ii) and the particularly 
serious crime bar to asylum under INA sec. 208(b)(2)(A)(ii), 8 U.S.C. 
1158(b)(2)(A)(ii).
    Response: DHS acknowledges that in the context of the particularly 
serious crime bar to withholding of removal, the statute requires that 
noncitizens convicted of aggravated felonies for which the noncitizen 
has been sentenced to an aggregate term of imprisonment of at least 5 
years be considered to have been convicted of particularly serious 
crimes, while leaving to the Attorney General's discretion the ability 
to consider as particularly serious crimes convictions for aggravated 
felonies for which the noncitizen has been sentenced to an aggregate 
term of imprisonment of less than 5 years. INA sec. 241(b)(3)(B), 8 
U.S.C. 1231(b)(3)(B). The particularly serious crime bar to asylum 
contains no such discretion, requiring that noncitizens convicted of 
any aggravated felony, without reference to any sentence imposed, be 
considered to have committed a particularly serious crime. INA sec. 
208(b)(2)(B)(i), 8 U.S.C. 1158(b)(2)(B)(i). An AO encountering a 
noncitizen in a fear screening with a conviction for an aggravated 
felony for which a sentence of less than 5 years was imposed would 
likely be unable to efficiently address the particularly serious crime 
bar to statutory withholding of removal and would therefore not 
exercise their discretion to consider the bar.
    However, DHS disagrees that it is inappropriate as a general matter 
for AOs to consider bars to statutory withholding of removal in fear 
screenings. As noted above, the five bars to statutory withholding of 
removal that AOs may consider under this rule generally correspond to 
five of the six mandatory bars to asylum, on which AOs receive training 
and which they consider in affirmative asylum and asylum merits (AMI) 
adjudications. See INA secs. 208(b)(2)(A)(i)-(v), 241(b)(3)(B)(i)-(iv) 
and (b)(3)(B), 8 U.S.C. 1158(b)(2)(A)(i)-(v), 1231(b)(2)(B)(i)-(iv) and 
(b)(3)(B). Moreover, AOs conducting AMIs also make determinations on 
eligibility for statutory withholding of removal pursuant to 8 CFR 
208.16, including the consideration of bars at 8 CFR 208.16(d)(2). 8 
CFR 208.9(b). Therefore, DHS is confident in AOs' ability to exercise 
their discretion to consider and correctly apply bars to statutory 
withholding of removal in credible fear and reasonable fear screenings.
    Comment: Some commenters recommended requiring AOs to consider bars 
in fear screenings. One commenter suggested that leaving such 
consideration to the discretion of AOs where there is easily verifiable 
evidence of a bar and the AO is confident they can address the bar 
efficiently, fails to consider the years that otherwise inadmissible 
noncitizens would spend in the country if referred to removal 
proceedings and the additional fiscal and time burdens to ICE and EOIR 
to handle such cases. These burdens, the commenter argued, create 
strains on public resources and potential danger to officers.
    Response: DHS disagrees that requiring AOs to apply bars in fear 
screenings in all cases would necessarily reduce the burdens on ICE, 
EOIR, or public resources. Imposing a blanket requirement for AOs to 
consider bars in fear screenings would result, in many cases, in 
protracted screening interviews to fully explore the complex factual 
and legal considerations that often arise in connection with bars to 
asylum and statutory withholding of removal.\90\ Doing so would reduce 
the number of fear screenings DHS is able to conduct, resulting in more 
noncitizens being referred for section 240 removal proceedings without 
any screening at all. While DHS appreciates the commenter's concern for 
officer safety, the Department is confident in its ability to protect 
its personnel, and the commenter provides no evidence to indicate 
otherwise.
---------------------------------------------------------------------------

    \90\ See 87 FR 18093-94.
---------------------------------------------------------------------------

8. Burden and Standard of Proof
    Comment: A commenter wrote in support of requiring individuals in 
the

[[Page 103396]]

asylum process to bear the burden of proof, reasoning that if the 
individual's claim is real, they could easily provide the evidence. 
Commenters suggested that the government should bear the burden of 
proof to demonstrate the applicability of any bars, rather than 
requiring noncitizens to bear the burden of proof.
    Response: The Department agrees to the extent that it is 
appropriate to require noncitizens to bear the burden of proof to 
demonstrate they have a credible fear or reasonable fear determination, 
and notes that this is the current standard and will not change under 
this regulation. Under INA sec. 291, 8 U.S.C. 1361, the burden of proof 
is generally on the person requesting an immigration benefit to 
establish their eligibility for the benefit.\91\ Because mandatory bars 
to asylum and withholding of removal exclude noncitizens from 
eligibility for those forms of relief or protection, noncitizens must 
demonstrate that such bars do not apply according to the relevant legal 
standard. The purpose of fear screenings is to identify noncitizen who 
may be eligible for particular benefits or forms of relief or 
protection from removal, and it is consistent with the INA to place the 
burden of proof on noncitizens to establish a bar considered by the AO 
in the fear screening does not apply.
---------------------------------------------------------------------------

    \91\ The same is true in removal proceedings under section 240 
of the INA, 8 U.S.C. 1229a. See INA 240(c)(4)(A), 8 U.S.C. 
1229a(c)(4)(A).
---------------------------------------------------------------------------

    DHS believes it is reasonable in fear screenings to require 
noncitizens to bear the burden of proof to demonstrate at the 
applicable standard that a mandatory bar, if considered, does not apply 
to them. This approach is consistent with requiring noncitizens in 
credible fear and reasonable fear screenings to demonstrate at the 
applicable standard that they could establish, in a proceeding on the 
merits, eligibility for asylum or that they would be persecuted on 
account of a protected ground. The commenters' suggestion would 
represent a departure from this longstanding framework and introduce a 
burden-shifting element that could unnecessarily complicate and prolong 
screening interviews. DHS also notes that requiring noncitizens to bear 
the burden of proof in credible fear and reasonable fear screenings to 
demonstrate a bar, if considered, does not apply them, is analogous to 
the requirement in proceedings on the merits that applicants bear the 
burden of proof to demonstrate eligibility for any immigration benefit 
or relief sought under INA sec. 291, 8 U.S.C. 1361.
    Comment: One commenter, in noting that a noncitizen whom an AO 
determines may be a threat to national security would be given the 
opportunity to show that they are not, stated that it is extremely 
difficult to prove one is not a threat.
    Response: AOs conducting fear screenings would only consider a 
mandatory bar in those cases where there is easily verifiable evidence 
available to the AO that a mandatory bar may apply, and the AO can 
consider that bar efficiently at the credible fear stage. The rule 
would not require noncitizens to prove generally that they are not a 
threat. Rather, it allows AOs the discretion to consider particular 
statutory bars to asylum and withholding of removal where evidence that 
such a bar may apply exists and is easily verifiable. The Department 
considers it fair and appropriate to provide such discretion to AOs and 
to remove noncitizens without a legal basis to remain in the United 
States when screenings determine they would not be able to establish 
eligibility in a full merits hearing before an immigration judge or AMI 
before an AO. Furthermore, noncitizens already bear the burden of proof 
in merits determinations to demonstrate a bar does not apply. The 
commenter did not explain how allowing AOs to consider mandatory bars 
in fear screenings is more problematic than this current posture.
    Comment: Commenters asserted that the rule requires noncitizens in 
fear screenings to meet the preponderance of the evidence standard to 
demonstrate a bar does not apply. Commenters indicated the significant 
possibility standard should apply uniformly to all aspects of credible 
fear interviews. A commenter asserted that allowing the consideration 
of bars to asylum and statutory withholding of removal in the context 
of other recent rulemakings that provide for different standards of 
proof for the different forms of relief for which noncitizens are 
screened in credible fear interviews will create confusion and increase 
the risk of erroneous fear determinations. One commenter wrote that the 
differing standards for consideration of exceptions to the mandatory 
bars--a significant possibility for an exception to an asylum bar and a 
reasonable possibility for an exception to a statutory withholding of 
removal bar--will create confusion among noncitizens and AOs and 
increase the likelihood of erroneous determinations.
    Response: The rule does not require noncitizens in fear screenings 
to meet the preponderance of the evidence standard to demonstrate a bar 
does not apply. Rather, in credible fear screenings under 8 CFR 208.30, 
it requires them to show a significant possibility that they would be 
able to demonstrate by a preponderance of the evidence (in the context 
of a full merits hearing) that a mandatory bar to asylum does not 
apply. 8 CFR 208.30(e)(5)(ii)(A) and (B). Noncitizens screened for 
statutory withholding of removal under the application of the CLP 
rule's presumption of ineligibility for asylum must demonstrate that 
there is a reasonable possibility that no mandatory bar applies, if the 
AO has considered the applicability of a bar. 8 CFR 208.33(b)(2)(i). 
Noncitizens subject to the Securing the Border rule's limitation on 
asylum eligibility must demonstrate a reasonable probability. 8 CFR 
208.35(b)(2), 208.33(b)(2)(i). In the reasonable fear context, if the 
AO considers the applicability of a bar, the noncitizen must 
demonstrate there is a reasonable possibility that the bar does not 
apply. 8 CFR 208.31(c). All of these standards are lower than the 
preponderance of the evidence standard applicable to asylum 
applications being considered in full merits hearings.
    DHS disagrees that screening for mandatory bars under varying 
standards of proof will create confusion and increase the risk of 
erroneous screening determinations. As stated above, AOs are trained to 
properly apply the different standards of proof in screening interviews 
and full adjudications,\92\ and AOs and have extensive experience 
applying different standards in the course of a case and across their 
workloads. The non-adversarial nature of screening interviews, along 
with the AO's duty to elicit testimony from noncitizens and examine 
other evidence in the record, including the results of security checks 
and country conditions, combined with 100-percent supervisory review of 
screening determinations and the availability of immigration judge 
review for negative determinations, all ensure the correct standard of 
proof is applied to the various forms of relief being screened in 
credible fear and reasonable interviews and minimize the risk of 
erroneous determinations.
---------------------------------------------------------------------------

    \92\ See USCIS, RAIO Directorate--Officer Training: Evidence 
(Apr. 24, 2024). USCIS will develop additional training on this rule 
prior to its implementation, including guidance on standards of 
proof for AOs tasked with implementing the rule.
---------------------------------------------------------------------------

    DHS disagrees that shifting standards of proof applied during fear 
screenings will create prejudicial confusion among noncitizens. AOs are 
trained to elicit all relevant information from the noncitizen, 
including eliciting testimony to assist the noncitizen with

[[Page 103397]]

meeting their burden of proof in a given determination or 
adjudication.\93\ The comment appears to contemplate a noncitizen 
calibrating their response to an inquiry based on the standard of 
proof, rather than working with the AO to provide all the available 
evidence on an issue. Given the non-adversarial nature of screening 
interviews and AOs' duty to elicit the testimony needed to determine 
whether a noncitizen has met the applicable standard of proof, DHS 
believes the commenter misapprehends the dynamics of screening 
interviews.
---------------------------------------------------------------------------

    \93\ See id.; see also USCIS, ``RAIO Directorate--Officer 
Training: Interviewing--Eliciting Testimony'' (Apr. 24, 2024); 
USCIS, ``RAIO Directorate--Officer Training: Evidence'' (Apr. 24, 
2024).
---------------------------------------------------------------------------

    DHS acknowledges the commenter's suggestion that the significant 
possibility standard should apply uniformly to all aspects of credible 
fear interviews. However, this rule does not change the standards 
applicable in credible fear interviews.
    DHS acknowledges that the CLP rule and Securing the Border Interim 
Final Rule (IFR) and final rule impacted the credible fear review 
procedures (but not reasonable fear procedures), including, in some 
cases, the standards of proof applicable to certain noncitizens in 
credible fear screenings. See 8 CFR 208.33(b), 208.35(b). DHS and DOJ 
explained in the CLP and Securing the Border rules why the reasonable 
possibility and reasonable probability standards, respectively, are 
needed in the context of screening for statutory withholding of removal 
and CAT protection, even though it might be more straightforward to 
apply the significant possibility standard across the board. This rule, 
however, does not make any further changes to these standards of proof, 
nor were such changes proposed in the NPRM. Instead, it maintains the 
status quo.
    DHS disagrees that providing discretion to AOs to consider bars in 
fear screenings in the context of the varying standards of proof 
implemented by these other rules will cause confusion and result in 
erroneous fear determinations. AOs have been effectively implementing 
the CLP rule for over a year and have demonstrated their ability to 
apply the significant possibility and reasonable possibility standards 
accurately in accordance with DHS regulations. Early indications 
suggest the same for the Securing the Border IFR and final rule. DHS 
has no reason to believe that providing AOs the discretion to consider 
mandatory bars in fear screenings where information makes it clear that 
a bar may apply, and the AO can analyze the bars efficiently, will 
undermine the integrity of these screenings.
    Furthermore, this rule does not require noncitizens undergoing fear 
screenings where bars are considered to demonstrate by a preponderance 
of the evidence that the bars do not apply. That is the standard of 
proof to demonstrate eligibility for asylum in a full merits hearing or 
AMI, not in the credible fear context. The standards of proof 
applicable to the consideration of bars in fear screenings will remain 
the same as those for the other eligibility criteria for the forms of 
relief or protection considered in credible fear and reasonable fear 
screenings under current regulations.
    Comment: A commenter stated that the ``reasonable probability'' 
standard implemented under the Securing the Border IFR would create a 
difficult standard to administer and understand, and that under the 
IFR, certain noncitizens will be screened under a higher standard than 
that applied to similarly situated noncitizens under the CLP rule. The 
commenter wrote that the ``reasonable probability'' standard does not 
appear in the INA and is not defined clearly. Commenters noted that 
DHS's new regulations have created overlapping and inconsistent legal 
standards and were unsure whether this rule would conform to the IFR 
standard.
    Response: This rule does not propose changes to the substantive 
screening standards by which AOs make their fear determinations. See 
generally 89 FR at 41347-61. Instead, this rule amends the regulations 
to provide AOs discretion to consider mandatory bars at the appropriate 
standard of proof that applies to the type of screening they are 
conducting.
    Regarding the ``reasonable probability'' standard specifically, as 
discussed above in Section I.B, the Securing the Border IFR established 
that standard at 8 CFR 208.35(b)(2). Specifically, in cases where the 
AO first finds that the noncitizen is subject to the Securing the 
Border limitation on asylum eligibility and accordingly does not have a 
credible fear with respect to the noncitizen's asylum claim, the AO 
then assesses whether the noncitizen has established a ``reasonable 
probability'' of persecution or torture for the purposes of eligibility 
for withholding of removal or protection under the Convention Against 
Torture. 8 CFR 208.35(b)(2). When this rule is implemented, the AO may 
consider the applicability of the covered mandatory bars as part of 
this ``reasonable probability'' determination in cases where the 
Securing the Border rule's limitation on asylum eligibility is found to 
apply. Should the Securing the Border rule's limitation on asylum 
eligibility not apply to a noncitizen in a credible fear screening, 
either because there is a significant possibility the noncitizen could 
demonstrate either they are not subject to the limitation or they are 
eligible for an exception to the limitation, the AO would consider the 
mandatory bars under this rule at the ``significant possibility'' 
standard in line with credible fear determinations made pursuant to 8 
CFR 208.30, or, if appropriate, the ``reasonable possibility'' 
standard, if the noncitizen is subject to a presumption of asylum 
ineligibility under 8 CFR 208.33.
    In all cases, the AO will only consider mandatory bars under this 
rule as a matter of discretion and only when there is easily verifiable 
information that a mandatory bar applies to the noncitizen and when the 
AO can handle the issue efficiently at the screening stage.
    To the extent that commenters' concerns regard the merits of the 
``reasonable probability'' standard in general, such concerns are 
outside the scope of this rule. Comments regarding the reasonable 
probability standard are addressed in Section III.C.3 of the Securing 
the Border final rule preamble. 87 FR at 81245-50.
9. Other General/Mixed Feedback and Suggested Alternatives
    Comment: One commenter stated that while they understand the rule's 
intention to streamline the asylum process and uphold the integrity of 
the immigration system, they have recommendations for improvements. The 
commenter suggested increased training for AOs to better understand 
global issues, exceptions to applicability of the rule for specific 
vulnerable populations, access to legal counsel in the screening 
process, increased transparency around the screening process, and 
periodic review and public reporting on the rule's impact. One 
commenter expressed concern that noncitizens may face exploitation, and 
many other commenters suggested increasing capacity and resources, 
including AOs and immigration judges, so that noncitizens face shorter 
wait times and receive thorough interviews. One commenter suggested 
that increased use of Temporary Protected Status, parole processes such 
as the processes for Cubans, Haitians, Nicaraguans, and Venezuelans, 
and humanitarian parole could reduce the number of border crossings. 
One commenter recommended that the Department disincentivize border 
crossings by expanding its use of

[[Page 103398]]

expedited removal, rescinding ICE enforcement priorities memos, and 
raising the legal standards applied in screening cases.
    Response: The Department emphasizes that AOs are trained in asylum 
law, receive regular trainings in specific areas of asylum law, and are 
experienced in analyzing mandatory bars.\94\
---------------------------------------------------------------------------

    \94\ See USCIS, RAIO Directorate--Officer Training: Mandatory 
Bars (May 9, 2013); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Apr. 24, 2024); USCIS, RAIO Directorate--
Officer Training: Interviewing--Working with an Interpreter (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Cross-Cultural 
Communication and Other Factors That May Impede Communication at an 
Interview (Apr. 24, 2024); USCIS, RAIO Directorate--Officer 
Training: Interviewing Survivors of Torture and Other Severe Trauma 
(Apr. 24, 2024).
---------------------------------------------------------------------------

    The Department declines the suggestion to create exceptions to 
applicability of the rule for certain vulnerable populations because 
all applicants for asylum, regardless of population, are subject to all 
mandatory bars.
    An explanation of access to counsel in the screening process is 
provided in section 2(b), due process concerns, of this rule.
    The Department appreciates the suggestion to increase transparency 
and provide periodic review and public reporting on the rule's impact. 
USCIS already provides certain asylum statistics to the public through 
its website and reports to Congress on a variety of immigration 
initiatives and statistics. The Department will take this suggestion 
under consideration.
    The Department also continues to use a variety of processes, 
including parole, to discourage unlawful entries into the United States 
and safeguard against exploitation of noncitizens.
    The Department acknowledges the recommendation to increase capacity 
and resources by hiring more AOs and immigration judges. The Department 
continues to expand its workforce to meet the growth in immigration 
benefit applications and requests, but staffing and hiring of AOs is 
out of the scope of this rule, as is the staffing and hiring of 
immigration judges, which is managed by the Department of Justice. This 
rule is intended to provide DHS additional operational flexibility in 
screening determinations and, as explained in the NPRM preamble, the 
Department anticipates that it will also expand its ability to more 
quickly remove noncitizens who present national security or public 
safety threats, may provide efficiencies for ICE Office of the 
Principal Legal Advisor (OPLA) and ICE Enforcement and Removal 
Operations (ERO), and may reduce referrals to EOIR in cases in which a 
negative fear determination can be made at the screening stage for an 
individual who the Department would otherwise place into potentially 
lengthy proceedings in immigration court, including possible appeals to 
the BIA.
    Certain suggestions, specifically those to disincentivize unlawful 
border crossings by expanding the use of expedited removal and removing 
ICE enforcement priorities, are outside the scope of this rule. This 
rule encompasses USCIS regulations and procedures and does not amend 
ICE regulations and procedures.
    Finally, regarding the suggestion to increase the legal standards 
applied in screening cases in order to disincentivize unlawful border 
crossings, the Department emphasizes that this rule does not affect the 
standard of proof applicable in screening procedures. Furthermore, the 
intent of this rule is to increase efficiency and enhance public 
safety, rather than to function as a broader deterrence measure.
    Comment: A commenter stated that to speed removal of high 
enforcement priorities and reduce the EOIR pending caseload and the 
burden on OPLA and ERO, DHS failed to consider policies that it can 
exercise in its discretion to not prosecute non-priority cases at a 
greater scale.
    Response: DHS acknowledges the comment and has provided an 
estimated reduction in EOIR workload after the implementation of this 
rule. See section V.A.3.c of this preamble. The regulation will prevent 
noncitizens from entering a potentially years-long immigration court 
process in pursuit of relief for which they are ineligible, and it will 
allow DHS and EOIR resources that would have been expended on such 
processes to be conserved for potentially meritorious cases. However, 
the main purpose of this rule is not to reduce EOIR pending caseload or 
the burden on ICE OPLA and ERO. Instead, as explained in the NPRM and 
in this preamble, the purpose of this rule is to facilitate efficiency 
in the expedited removal process by providing AOs additional 
operational discretion to choose to apply certain mandatory bars during 
fear screenings. The commenter's suggestions are outside the scope of 
this rule.

E. Other Issues Relating to the Rule

1. Coordination With DOJ in the Rulemaking
    Comment: A commenter suggested that the lack of a corresponding 
proposed rule by DOJ demonstrates that DHS failed to coordinate with 
EOIR, undermining DHS's claims that the rule will promote efficiency 
and consistency and betraying a lack of preparedness to promulgate a 
final rule. Similarly, another commenter suggested that the lack of a 
corresponding DOJ rule highlights the irregular nature of this proposed 
rulemaking.
    Response: As an initial matter, the Department emphasizes that it 
has the authority to pursue this rulemaking independently and without a 
corresponding rule issued by DOJ. As the rule pertains to the 
procedures AOs follow, no DOJ rule is necessary to implement the 
changes described in the rule.
    Nevertheless, DHS emphasizes that DOJ was consulted during the 
development of the NPRM and this rule. As a significant rule, OIRA 
conducted a review of this rule under Executive Order 12866. 58 FR 
51735 (Oct. 4, 1993).\95\ OIRA review includes the coordination of 
interagency Executive Branch review of significant rules, including 
review by the Department of Justice.\96\
---------------------------------------------------------------------------

    \95\ See also Office of Information and Regulatory Affairs, OIRA 
Conclusion of E.O. 12866 Regulatory Review, Rin 1615-AC91, https://www.reginfo.gov/public/do/eoDetails?rrid=524411 (last reviewed Sept. 
26, 2024).
    \96\ See Office of Information and Regulatory Affairs, 
Frequently Asked Questions: What is OIRA's Role in the Rulemaking 
Process?, https://www.reginfo.gov/public/jsp/Utilities/faq.myjsp#oira (last reviewed Sept. 26, 2024).
---------------------------------------------------------------------------

    Finally, as noted in the NPRM, DOJ may issue its own separate rule 
to clarify the procedures immigration judges will follow when reviewing 
the findings of AOs in credible fear or reasonable fear review 
proceedings. 89 FR at 41355 n.37.
    Comment: One commenter suggested that the lack of a corresponding 
rulemaking by the DOJ may cause immigration judges to waste valuable 
time and resources trying to comprehend whether they are required to 
apply the rule and if so how to do so. Similarly, another commenter 
objected that the proposed rule does not contain any discussion of how 
or why this change will not impact review of a negative credible fear 
determination or whether that review will now encompass immigration 
judge review of a mandatory bar determination at this stage. A 
commenter also stated that the lack of a corresponding rule from the

[[Page 103399]]

DOJ leaves open the question of whether immigration judges have the 
authority to consider a mandatory bar in the first instance when 
reviewing negative credible fear screenings where the AO declined to 
consider a mandatory bar.
    Response: The procedures for immigration judge review of AOs' 
credible fear and reasonable fear decisions are set out at 8 CFR 
1003.42, 1208.30, 1208.31, 1208.33, and 1208.35. In general, DHS notes 
that immigration judges have the authority to review negative credible 
fear and reasonable fear determinations of AOs de novo, and such review 
is available for all negative fear determinations. See, e.g., 8 CFR 
1003.42(d); 8 CFR 1208.30(g). Should DOJ determine that further clarity 
is needed, DHS again notes that the DOJ may issue its own rule to 
clarify the procedures for immigration judge review.
2. Security Bars Rulemaking
    Comment: Some commenters wrote that it was not clear whether this 
rule would result in AOs applying the additional public-health related 
bars in the Security Bars final rule in fear screenings, should that 
rule go into effect.
    A commenter expressed concern that the proposed rule would interact 
with the Security Bars final rule when it goes into effect December 31, 
2024, by reinforcing or endorsing the applicability of what the 
commenter characterized as that rule's illegal interpretation of the 
security bars during credible and reasonable fear screenings. The 
commenter stated the Security Bars final rule is incompatible with non-
refoulement obligations under international law and the INA, citing 
case law and noting that there is no public health exception to non-
refoulement obligations. After recommending redrafting, the commenter 
encouraged DHS to at least amend the proposed rule to clarify that 
public health considerations would not be tasked to AOs under the 
proposed rule, suggesting a statement in both the rule and its preamble 
that it does not enable decisions of public health issues in the fear 
screening process under the guise of ``security.''
    Another commenter expressed concern that the proposed rules could 
interact with the Security Bars final rule by complicating pre-
screening procedures that are already highly complex and recommended 
that the Department rescind the Security Bars rule to avoid causing or 
worsening inefficiencies in the U.S. immigration system.
    A commenter wrote that the proposed rule could become more broadly 
applicable if the Security Bars final rule goes into effect as 
scheduled on December 31, 2024, and expressed concern that asylum 
opportunities would be severely limited as a result. The commenter 
urged the Department to rescind both the Security Bars final rule along 
with the proposed rule to provide greater support for noncitizens 
seeking protection in the United States.
    Finally, a commenter expressed concern that the proposed rule would 
automate the wrongful removal of asylum seekers if this proposed rule 
were finalized and the Security Bars final rule goes into effect. The 
commenter provided an example of a noncitizen who may be subject to a 
statutory bar to asylum due to the public health provision in the 
Security Bars final rule.
    Response: As an initial matter, DHS emphasizes that comments 
related to the substance, legality, merits, or other specific issues 
focused on the Security Bars final rule itself are outside the scope of 
this rulemaking.
    On December 23, 2020, DHS and DOJ jointly published the Security 
Bars final rule to clarify that the Departments may consider emergency 
public health concerns based on communicable disease (not limited to 
COVID-19) when determining whether a noncitizen is subject to the 
existing statutory bars to asylum and withholding of removal at INA 
secs. 208(b)(2)(A)(iv) and 241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) 
and 1231(b)(3)(B)(iv), for noncitizens for whom ``there are reasonable 
grounds to believe'' that they are ``a danger to the security of the 
United States'' (commonly known as the ``security bars'').\97\ 
Specifically, the Security Bars final rule delineates certain 
circumstances when, in the context of a public health emergency under 
Federal law or regarding a communicable disease of public health 
significance as defined at 42 CFR 34.2(b), a noncitizen would be 
ineligible for asylum under the statutory security bars. See 85 FR at 
84193 (amending 8 CFR 208.13(c)).
---------------------------------------------------------------------------

    \97\ Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020).
---------------------------------------------------------------------------

    The Security Bars Final Rule is scheduled to become effective on 
December 31, 2024. 87 FR 79789 (Dec. 28, 2022). However, DHS emphasizes 
that DHS and DOJ continue to consider further action related to the 
security bars final rule,\98\ and OIRA received a rule on this topic on 
December 3, 2024 for review under Executive Order 12866.
---------------------------------------------------------------------------

    \98\ See, e.g., OIRA, Spring 2024 Unified Agenda, Asylum 
Eligibility and Public Health (RIN 1615-AC57), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202404&RIN=1615-AC57.
---------------------------------------------------------------------------

    In addition, no public health emergency relevant to the Security 
Bars final rule currently exists. As a result, there would be no 
direct, immediate impact on eligibility for asylum or other protection 
if the Security Bars final rule were to go into effect because there is 
no existing relevant public health situation that would trigger the 
bars.
    As explained in the NPRM and elsewhere in this preamble, DHS 
considers it appropriate to provide AOs discretion to consider 
security- and public safety-related bars to asylum and statutory 
withholding of removal in fear screenings to facilitate the swift 
removal of noncitizens who pose security and public safety risks and 
are clearly ineligible for asylum or withholding of removal. DHS 
therefore declines to rescind this rule, limit AOs' discretion 
regarding the statutory security bars, or provide other restrictions 
related to the statutory security bars, including the pending Security 
Bars final rule, in credible fear and reasonable fear screenings.
    Finally, the Department disagrees with the claim that the rule will 
``automate'' the removal of noncitizens if the Security Bars final rule 
also goes into effect. Under this rule, AOs consider any mandatory bar 
on a case-by-case basis with respect to the specific facts presented in 
a case. The AO will not automatically apply a bar in any case.
3. Other Out of Scope Comments
    Comment: Commenters provided feedback and suggestions outside the 
scope of this rulemaking. Examples of these out-of-scope comments 
include the following. Commenters:
     suggested if immigration lawyers are opposed to this 
regulation, they should provide their services for free.
     stated that locals in Ecuador laughed and joked about a 
headline related to this rulemaking.
     suggested building and staffing something like what was 
done at Ellis Island.
     suggested creating a resettlement program for asylum 
seekers, while others suggested creating paths to citizenship for 
immigrants.
     noted the positive impacts of immigrants on our nation and 
its economy.
     urged that migrants be treated fairly and with dignity.
     expressed opposition to President Biden's Proclamation on 
Securing the Border.

[[Page 103400]]

     criticized purported shortcomings of the CBP One mobile 
app.
     expressed concern for the wellbeing of LGBTQI+ persons and 
torture survivors.
     urged a pathway to citizenship for Deferred Action for 
Childhood Arrivals students and their families.
     urged Congress to build a more welcoming immigration 
system and provide increased legal representation for asylum seekers, 
additional resources for government entities that administer the 
immigration system, and more accessible pathways to citizenship.
     stated that all criminals should be deported immediately.
     called for hiring and training more immigration judges.
    Response: DHS acknowledges these comments but declines to address 
them, as they are outside the scope of this rulemaking.

F. Statutory and Regulatory Requirements

1. Administrative Procedure Act
    Comment: Commenters raised concerns that this rule violated the 
Administrative Procedure Act's (APA's) requirements, as set forth in 5 
U.S.C. 553(b) through (d). Commenters stated that the 30-day comment 
period was not sufficient and that, at a minimum, the comment period 
should have been 60 days. Numerous commenters requested that DHS extend 
the comment period. In support, commenters referenced Executive Orders 
12866 \99\ and 13563,\100\ both of which recommend providing the public 
a meaningful opportunity to comment with a comment period of not less 
than 60 days in most cases. Commenters stated that the NPRM's 
complexity and length, its departure from long-standing agency policy, 
its interaction with other policy and regulatory issues, and its impact 
on asylum-seekers and those supporting them demonstrate the 30-day 
comment period was insufficient.
---------------------------------------------------------------------------

    \99\ 58 FR 51735 (Oct. 4, 1993).
    \100\ 76 FR 3821 (Jan. 21, 2011).
---------------------------------------------------------------------------

    Other commenters stated that 30 days was an insufficient period to 
collect information and evidence of the rule's impact or to develop 
alternatives to the changes made by the rule, particularly because 
providing comments on the rule requires organizations to divert 
resources away from assisting migrants.
    Commenters disagreed with DHS's statements that a 30-day comment 
period was reasonable and appropriate because the rule relates to a 
discrete topic, is relatively short, and has been addressed in multiple 
recent notice-and-comment rulemakings. Commenters stated that the 
proposed rule addresses a complex topic that involves Federal and 
international law, and that, because the rule did not provide 
sufficient notice of how AOs would exercise their discretion, the scope 
of the rule could not be determined. Commenters also stated that the 
rule interacts with recent regulatory and policy changes in complex 
ways that could not have been considered during earlier notice-and-
comment rulemakings that addressed the same topic. Commenters 
specifically stated that additional time was needed to analyze the 
proposed rule in relation to the CLP rule including the ramifications 
of the proposed rule if the CLP rule is vacated or modified as a result 
of legal challenges against it, and in relation to the Securing the 
Border IFR, which was published and became effective during the comment 
period for this rule.
    Commenters also contend that because this rule repeals or reverses 
existing policy, DHS has a greater burden to justify providing a 
comment period that is shorter than the 60-day period that was provided 
for the Procedures for Credible Fear Screening and Consideration of 
Asylum, Withholding of Removal, and CAT Protection Claims by Asylum 
Officers rule, which rescinded regulations applying mandatory bars 
during credible fear screenings. 87 FR 18078 (Mar. 29, 2022).
    Commenters stated that DHS justified the 30-day comment period, in 
part, on its stated interest in acting quickly to provide an additional 
tool and operational flexibility to more promptly remove noncitizens 
who pose public safety and national security risks. Commenters stated 
that the desire to act quickly cannot be a justification to shorten the 
comment period, and some commenters expressed concern that the process 
would not leave DHS sufficient time to fully consider public comments 
before issuing a final rule. Further, commenters asserted that DHS did 
not present evidence of an urgent security threat or other exigent 
circumstance, did not explain why it did not propose the rule earlier, 
and did not justify the 30-day period in consideration of its 
expectation that the affected population will be relatively small.
    Finally, commenters stated that the 30-day comment period was not 
justified in view of the potential consequences of implementing the 
rule without sufficient consideration of public comments, namely, that 
an erroneous application of the bars could result in individuals being 
returned to countries where they face persecution or torture.
    Response: DHS disagrees with commenters' statements that the 30-day 
comment period was inadequate and that the changes being made are 
overly complex, do not involve minimal regulatory changes, and do not 
relate to a discrete change describing when an AO has the discretion to 
consider certain mandatory bars earlier in the fear screening process 
than has normally been the case.
    The APA does not require a specific comment period length, see 5 
U.S.C. 553(b), (c), and although Executive Orders 12866 and 13563 
recommend a comment period of at least 60 days, a 60-day period is not 
required. The APA only requires that an agency provide interested 
persons ``an opportunity to participate in the rule making through 
submission of written data, views, or arguments.'' 5 U.S.C. 553(c). For 
example, the D.C. Circuit has stated that, although a 30-day period is 
often the ``shortest'' period that will satisfy the APA, such a period 
is generally ``sufficient for interested persons to meaningfully review 
a proposed rule and provide informed comment,'' even when ``substantial 
rule changes are proposed.'' Nat'l Lifeline Ass'n v. FCC, 921 F.3d 
1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 
(D.C. Cir. 1984)).
    Here, the comment period spanned 30 days, from May 13, 2024, 
through June 12, 2024, which DHS believes was sufficient to allow for 
meaningful participation, as evidenced by the almost 4,300 public 
comments received, including numerous detailed comments from interested 
organizations. Many of the comments expressing opposition to this rule 
are similar in their nature and raise many of the same issues or 
concerns. The fact that the commenters raise the same issues and 
concerns reflects the narrow scope of the rule and a common recognition 
and understanding of the substance in the rule and the issues raised 
therein. There were also many instances of commenters providing more 
than one comment. Commenters who submitted more than one comment 
generally submitted an initial comment at the beginning of the comment 
period arguing against the 30-day comment period (during which the 
Department received a number of substantive comments on the proposed 
rule itself), and then submitted a subsequent comment later in the 
comment period commenting on additional issues they have with the 
proposed rule, but also reiterating many of the same comments and 
arguments that were previously

[[Page 103401]]

made in the initial comment. Submitting multiple comments in this way 
is an indication that commenters had sufficient time to provide 
comments and then revisit those comments during the course of the 
comment period. Additionally, many of the comments are duplicative and 
indicative of a mass mailing campaign, which demonstrates that the 
public had sufficient time to coordinate their efforts, collaborate on 
and draft uniform responses, disseminate such responses among 
interested individuals and organizations, and for those individuals and 
organizations to submit those comments in an organized and collective 
manner via the Federal Register. The number of comments received and 
the content of those comments all indicate that the public was provided 
the opportunity to, and did in fact, meaningfully engage with this 
rulemaking.
    DHS disagrees with the comments asserting that a 30-day comment 
period for a rule that reverses the existing policy--under which AOs do 
not apply mandatory bars during credible fear screenings--requires more 
justification. The cases cited in support of this assertion do not 
require that an agency provide a comment period equal to or greater 
than the period for the initial rule, nor do they impose heightened 
requirements for an agency's decision to provide a shorter comment 
period for a rescission; rather, they identify the lack of parity in 
those rulemakings as a supporting factor for their conclusions that the 
agencies failed to satisfy the APA requirements for notice and 
comment.\101\ The Sixth Circuit examined these decisions and observed 
that ``the feature of the challenged rescissions that ran afoul of the 
APA in both [cases] was the agency's imposition of content restrictions 
on the comments that interested parties could submit during the comment 
window.'' Chamber of Commerce of U.S. v. SEC, 115 F.4th 740, 756 (6th 
Cir. 2024) (finding that the 31-day comment period for a proposed 
rescission of a rule was sufficient under the APA, even though the 
initial rulemaking offered a 60-day comment period). There is no such 
content restriction at issue here. As stated above, the APA does not 
require a specific comment period length, see 5 U.S.C. 553(b), (c). For 
the reasons described here and in the NPRM, DHS believes that the 30-
day comment period provided the public a meaningful opportunity to 
participate. See 89 FR 41347, 41358 (May 13, 2024)
---------------------------------------------------------------------------

    \101\ See N. Carolina Growers' Ass'n, Inc. v. United Farm 
Workers, 702 F.3d 755, 770 (4th Cir. 2012); California by & through 
Becerra v. U.S. Dep't of the Interior, 381 F. Supp. 3d 1153, 1176 
(N.D. Cal. 2019).
---------------------------------------------------------------------------

    DHS reiterates that the rule does not involve an overly complex 
topic that necessitates a comment period beyond 30 days. Fundamentally, 
the changes do not affect the substantive analysis of those bars, they 
only move forward the point in time at which certain mandatory bars 
will be considered and allow AOs to consider those certain mandatory 
bars during the fear screening process as a threshold issue, making the 
process more efficient. Additionally, DHS will provide sub-regulatory 
guidance to asylum officers regarding their exercise of discretion.
    The 30-day comment period also afforded adequate time for 
commenters to consider the combined effects of this rule with other DHS 
rules and policy changes. Commenters stated that additional time was 
needed to analyze the proposed rule in relation to the CLP rule, 
including the ramifications on the proposed rule if the CLP rule is 
vacated or modified as a result of pending legal challenges. The CLP 
rule became effective May 11, 2023, now over 15 months ago. 88 FR 31314 
(May 16, 2023). DHS described in specific detail how this rule would 
interact with the CLP rule in section IV.C. of the NPRM. There it was 
explained that 8 CFR 208.33(b)(2)(i) was being amended to provide AOs 
with the discretion to consider the applicability of the bars to 
withholding of removal contained in INA sec. 241(b), 8 U.S.C. 1231(b), 
when determining whether there is a reasonable possibility that the 
noncitizen would suffer persecution or torture in the country of 
removal. If an AO determines that the presumption of asylum 
ineligibility under the CLP rule applies, and there is evidence of a 
mandatory bar to withholding of removal and the noncitizen is unable to 
demonstrate there is a reasonable possibility that the mandatory bar 
does not apply, the AO may base a negative credible fear of persecution 
determination on a mandatory bar to statutory withholding of removal 
pursuant to 8 CFR 208.33 if there is evidence in the record that it 
would be more efficient to do so. 89 FR 41347, 41357 (May 13, 2024).
    DHS also disagrees that the 30-day comment period prohibited 
commentators from considering the combined impact of this rule and the 
Securing the Border IFR, which was issued June 6, 2024, during the 
comment period for this rule and became effective on June 5, 2024. 89 
FR 48710 (June 7, 2024). This rule interacts similarly with the 
Securing the Border IFR as it does with the CLP rule, which has been in 
place since May 2023 and which uses the same general framework. As 
explained in the Securing the Border IFR, the ``reasonable 
probability'' standard would apply to determinations involving a 
noncitizen who is subject to the Securing the Border IFR's limitation 
on asylum eligibility. 89 FR at 48739 n.186. The Securing the Border 
IFR places a limitation on asylum eligibility for noncitizens who enter 
across the southern border in violation of the suspension and 
limitation on entry created by the June 3 Presidential Proclamation, 
unless they are excepted under section 3(b) of the Proclamation or 
eligible for an exception based on exceptionally compelling 
circumstances. 8 CFR 208.35(a), 1208.35(a). Additionally, noncitizens 
who cross the southern border and are processed for expedited removal 
while the limitation is in effect will only be referred for a credible 
fear screening with an AO if they manifest or express a fear of return 
to their country or country of removal, a fear of persecution or 
torture, or an intention to apply for asylum. 8 CFR 235.15(b)(4). 
Finally, under the Securing the Border FR the United States will 
continue to adhere to its international obligations and commitments by 
screening individuals who manifest a fear and do not qualify for an 
exception to the Securing the Border rule for statutory withholding of 
removal and CAT protections at a ``reasonable probability'' of 
persecution or torture standard--a standard that is higher than the 
``reasonable possibility'' standard currently applied under the CLP 
rule. 8 CFR 208.35(b)(2), Again, this rule allows an AO the discretion 
to consider evidence indicating that a mandatory bar applies and to 
apply that mandatory bar during fear screening.
    Although DHS expressed a desire to act as quickly as possible to 
make this rule's regulatory changes when explaining the 30-day comment 
period, the desire for quick action was not the sole justification for 
the 30-day comment period. Rather, in reviewing the nature of the rule 
and the fact that the rule was narrow in scope, addressed a discrete 
topic, and made modest changes to the regulatory text, DHS determined 
that a 30-day comment period would be sufficient for the public to 
engage with the rule, provide comments, and participate in the 
rulemaking. Having recognized that a 30-day comment period is 
sufficient for meaningful public engagement, DHS expressed its desire 
to finalize the rule quickly to provide AOs with this additional tool 
to more promptly

[[Page 103402]]

remove noncitizens who pose public safety and national security risks, 
and thus set the comment period at 30 days. To the extent that 
commenters argue that a desire for swift action cannot be a valid 
consideration when setting the comment period, DHS disagrees. Although 
the Department expects that the number of cases when AOs would consider 
a mandatory bar under this rule to be relatively small, as discussed 
further below in Section V.A.1, DHS believes it is important to act 
expeditiously to increase efficiency wherever possible, especially in 
light of the current strains on processing and capacity at the southern 
border. See generally 89 FR 48710 (June 7, 2024) (DHS and DOJ 
describing the emergency circumstances necessitating the Securing the 
Border IFR).
    Finally, the length of the comment period, whether 30 days or 
longer, has no bearing on the amount of time or level of consideration 
that DHS will give when evaluating, addressing, and responding to 
public comments before issuing a final rule. DHS has carefully and 
appropriately considered the comments it received from the public on 
this rule.
    Comment: Commenters stated that DHS failed to consider significant 
reliance interests engendered by legal service organizations under the 
existing policy and detrimental impacts that the proposed rule would 
have on those organizations.
    Commenters stated that legal service providers that assist 
noncitizens during fear screenings have relied on the previous policy--
under which screenings did not entail adjudication of legally and 
factually complex matters, such as the application of mandatory bars--
in developing their internal protocols, preparing informational 
materials, and delivering legal services to clients during credible and 
reasonable fear screenings. They stated that the changes will require 
legal services providers to dedicate financial and human resources to 
train their staff and volunteers and to revise, translate, and publish 
updated guidance for noncitizens.
    A legal services provider commented that it would be adversely 
impacted as an organization that primarily serves noncitizens whose 
cases are being processed at an asylum office. The commenter stated 
that implementing the rule would likely result in more experienced AOs 
being detailed away from the local asylum office to conduct screening 
interviews at the southwest border, which would leave fewer, or less 
skilled, AOs in the local asylum office. Consequently, the commenter 
stated that cases would be processed more slowly in asylum offices, 
exacerbating existing backlogs. The commenter also stated that these 
changes would disrupt allocation of finite resources for non-profit 
organizations and that the increased complexity and processing times 
would increase the difficulty of recruiting pro bono attorneys and 
constrain its ability to serve potential clients.
    Another commenter stated that because its legal services program is 
primarily designed to assist asylum seekers after they have been placed 
in full removal proceedings, it has a reliance interest in ensuring 
that noncitizens with asylum claims are able to pass their fear 
screenings.
    Response: DHS has broad authority to establish and amend 
regulations and to take other actions ``necessary for carrying out'' 
the Secretary's authority to administer and enforce the immigration 
laws. See INA sec. 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 (authorities of the 
Secretary); 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)); and see 
Section II of this preamble.
    When an agency changes a policy position, it must provide a 
reasoned explanation for the change, but ``need not always provide a 
more detailed justification than what would suffice for a new policy 
created on a blank slate,'' so long as it can show ``good reasons'' for 
the change. FCC v. Fox Television Stations, Inc., 556 U.S. 505, 515 
(2009). If the established policy has engendered serious reliance 
interests, the agency's reasoned explanation must take those interests 
into account. Id.
    DHS has considered the commenters' asserted reliance interests but 
believes that their concerns do not outweigh DHS's reasons for 
implementing these changes. As discussed in the NPRM, see 89 FR 41347, 
41350 (May 13, 2024), the applicability of mandatory bars during 
credible fear screenings has been the subject of numerous regulatory 
actions since 2020, including the Global Asylum rule, the Security Bars 
rule, and the Asylum Processing IFR. Although the Global Asylum rule 
did not go into effect because of the preliminary injunction against 
implementation of the Global Asylum Rule, and the Security Bars rule 
has not yet gone into effect because the Departments have delayed its 
effective date, their promulgation weighs against commenters' 
assertions of long-settled reliance interests in the status quo. See 
Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021). 
DHS and DOJ published the Asylum Processing IFR rescinding the 
requirement to apply mandatory bars during credible fear screenings on 
March 29, 2022, and it became effective on May 31, 2022. See 87 FR 
18078 (Mar. 29, 2022). During the 2-year period between publication of 
the Asylum Processing IFR and the publication of the NPRM for this 
rule, the Departments published and implemented the CLP rule, which 
made significant changes to credible fear screenings. 88 FR 31314 (May 
16, 2023). Although the CLP rule did not alter the practice of not 
applying mandatory statutory bars at the credible fear stage, it did 
establish a rebuttable presumption of asylum ineligibility that AOs 
apply, when applicable, during credible fear screenings. These recent 
changing circumstances undermine the assertions that legal service 
providers have engendered significant reliance interests under the 
current policy. Rather, changing circumstances involving irregular 
immigration and the efforts DHS has employed to respond to the issue at 
the southwest land border demonstrate that the processes and procedures 
surrounding credible fear screenings remain fluid as DHS continues to 
respond to these challenges; as a result, the opportunity to develop a 
strong reliance interest in the status quo when it comes to the 
credible fear screening process is limited.
    DHS acknowledges that policy changes often require training and 
other efforts within organizations, including its own. See section IV 
of this preamble, explaining the training that AOs will receive upon 
implementation of this rule. Nonetheless, these impacts do not alone 
preclude an agency from changing its position when it has good reasons 
to do so. In the NPRM for this rule, DHS described the reasons why the 
Department had pursued the different regulatory changes affecting the 
application of mandatory bars during fear screenings. See 89 FR 41347, 
41353-54 (May 13, 2024). The common thread between these changes has 
been the Department's pursuit of greater efficiency in the fear 
screening process in furtherance of Congress' intent that the 
administrative removal processes be swift. See 85 FR 36264, 36272; 85 
FR 41201, 41210; 87 FR 18078, 18134-36;

[[Page 103403]]

and 89 FR 41347, 41351. DHS's position on the application of mandatory 
bars during credible fear screenings has evolved since implementing the 
CLP rule, and the NPRM for this rule explained that the Department 
identified a previously unconsidered alternative that would decrease 
the costs of applying the mandatory bars while maintaining many of the 
benefits--namely, conducting a factual and legal inquiry into the bars 
only in those cases for which doing so is likely to be an efficient and 
appropriate use of resources. 89 FR 41347, 41354 (May 13, 2024). DHS 
believes that the anticipated benefits of this rule outweigh the 
commenters' concerns for the administrative impact on their 
organizations.
    DHS also disagrees that some of the claimed reliance interests are 
cognizable. The assertion that this rule will increase backlogs or 
other staffing changes at local asylum offices and, ultimately, impede 
legal service providers' ability to serve their clients is based on a 
series of suppositions about the rule's effects on asylum office 
operations and staffing. Without factual support for the hypothetical 
chain of events, the Department finds this comment to be unpersuasive.
    The comment asserting legal service providers' reliance interest in 
ensuring that noncitizens with asylum claims are able to pass their 
fear screenings does not explain how implementation of this rule would 
upset that claimed interest. As the NPRM states, this rule will allow 
DHS to quickly screen out certain non-meritorious protection claims by 
allowing AOs to promptly issue negative fear determinations in cases in 
which there is easily verifiable evidence indicating that the 
noncitizen could be subject to a bar; the noncitizen is unable to 
establish, at the relevant standard, that the bar would not apply; and 
the noncitizen is not otherwise able to establish a credible or 
reasonable fear of torture. See 89 FR 41347, 41351 (May 13, 2024). The 
regulation will prevent noncitizens from entering a potentially years-
long immigration court process in pursuit of relief for which they are 
ineligible, and it will allow DHS and EOIR resources that would have 
been expended on such processes to be conserved for potentially 
meritorious cases. Id. It is unclear how such an outcome would 
adversely impact a legal services organization that serves noncitizens 
in immigration court proceedings or what reliance interest would have 
been engendered under the status quo.
2. Regulatory Impact Analysis Impacts and Benefits (E.O. 12866 and E.O. 
13563)
a. Impacts to Noncitizens (e.g., Individuals in the Credible Fear or 
Reasonable Fear Process)
    Comment: A commenter stated that the proposed provisions in the 
NPRM will make a marginal reduction in EOIR pending caseload at the 
cost of the broader impact on asylum seekers. The commenter further 
added that the process of applying mandatory bars is extremely complex 
factually and legally and will lead to erroneous negative credible fear 
and reasonable fear determinations with no legal recourse available to 
asylum seekers.
    Response: The final rule allows AOs the discretion to consider 
particular statutory bars to asylum and statutory withholding of 
removal where evidence that such a bar may apply is easily verifiable. 
The final rule will enable the Department to more swiftly remove 
individuals who are not eligible for protection in the United States 
based on national security or public safety concerns, preventing such 
cases from using valuable government resources to complete their 
adjudication beyond screening determinations. DHS considers it fair and 
appropriate to provide such discretion to AOs and to remove noncitizens 
without a legal basis to remain in the United States when screenings 
determine they would not be able to establish eligibility in a full 
merits hearing before an immigration judge or an AMI before an AO. As 
explained in section IV.B.2.b of this preamble, DHS has assessed that 
the possibility of erroneous removals is low. In analyzing any evidence 
that a bar to asylum or statutory withholding of removal may apply, 
this rule would allow AOs the flexibility to choose to consider a bar 
based on the individual facts and circumstances and information 
available to the AO to avoid erroneous negative determinations. Nothing 
in this rule alters the ability of a noncitizen who is the subject of a 
negative credible fear or reasonable fear determination to seek review 
of such determination by an immigration judge.
    Comment: A commenter stated that the NPRM will lead to longer 
detention times and increase likelihood of family separation due to 
disparities in credible fear determinations among family members and an 
increase in negative credible fear determinations. Another commenter 
stated that the rule could lead to family separations and disregards 
the impact on vulnerable families.
    Response: Commenters' concerns regarding the impact of this rule on 
family separations are highly speculative. The current regulations 
provide a process for the consideration of family units in expedited 
removal. Specifically, under 8 CFR 208.30(c), a spouse or child of a 
principal asylum seeker who arrived in the United States concurrently 
with the principal asylum seeker is included in that asylum seeker's 
positive credible fear evaluation and determination, unless the 
principal asylum seeker or the spouse or child declines such inclusion. 
The AO must complete background and security checks for each family 
member and screen each family member for mandatory bars to asylum 
eligibility. If the family unit is placed into section 240 removal 
proceedings, the Department serves an NTA on each family member and 
file an NTA for each family member with EOIR. If the AO finds that the 
principal noncitizen does not have a credible fear of persecution or 
torture, then the AO must interview the other family members to 
determine if any other family member can establish a credible fear. If 
the AO finds any family unit member positive for credible fear, then 
the AO does not interview the remaining family members except to screen 
for mandatory bars. The other family members do not need separate 
credible fear determinations and may be included in the positive family 
member's determination in the officer's discretion for purposes of 
family unity on a case-by-case basis, unless they indicate they wish to 
receive a separate determination.\102\
---------------------------------------------------------------------------

    \102\ USCIS, ``Credible Fear Procedures Manual,'' Section III.E, 
https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf (last accessed July 31, 2024).
---------------------------------------------------------------------------

    In other words, regardless of this rule, any family member subject 
to a mandatory bar is ineligible for the relevant form of relief or 
protection. This rule does not change the underlying merits of the 
family unit members' claims or the ability of other family members to 
ultimately qualify for asylum or withholding of removal.
b. Impacts on U.S. Economy, Taxpayers, Public Safety
    Comment: A commenter described the additional time burden on asylum 
seekers to gather evidence, on stakeholder organizations involved in 
providing direct services, such as preparing asylum seekers for 
credible fear and reasonable fear interviews; and psychological costs 
imposed on asylum seekers by the NPRM.

[[Page 103404]]

    Response: DHS acknowledges this comment and has included a 
description of impacts of the Final Rule under Executive Order 12866 
and Executive Order 13563 in Section V.A. of this preamble.
    Comment: A commenter stated that the rule will increase the asylum 
application backlog and detention times because of the time required 
for an AO to apply mandatory bars while also considering exemptions and 
waivers, and the time required for an AO to determine at the credible 
fear and reasonable fear stage if an asylum seeker has committed a 
particularly serious crime. The commenter argued the law is unclear 
about whether there is an exception to the persecutor bar for 
individuals forced to engage in persecution under duress; that asylum 
seekers face the challenge of lack of access to legal counsel in CBP 
custody and other detention facilities, and insufficient time to gather 
evidence; and that a consequence of the rule will be erroneous negative 
credible fear or reasonable fear determinations, leading to wrongful 
deportation and separation of families in certain situations.
    Response: DHS has described procedures used by AOs to identify 
possible mandatory bars while screening noncitizens for credible fear 
claims. Nothing in this rule alters the ability of a noncitizen who is 
the subject of a negative credible fear or reasonable fear 
determination to seek review of such determination by an immigration 
judge. DHS anticipates that cases raising such novel or complex legal 
questions would not be appropriate for AOs to use their discretion to 
consider the bar at issue, as it is unlikely the AO could do so 
efficiently in a screening interview. DHS disagrees that the rule will 
lead to additional erroneous negative credible fear or reasonable fear 
determinations, as the rule only allows AOs to enter a negative 
credible fear determination if the AO determines there is not a 
significant possibility the noncitizen would be able to establish by a 
preponderance of the evidence that the mandatory bars to asylum under 
INA sec. 208(b)(2)(A)(i)-(v), 8 U.S.C. 1158(b)(2)(A)(i)-(v) or to 
statutory withholding of removal under INA sec. 241(b)(3)(B), 8 U.S.C. 
1231(b)(3)(B) do not apply. Further, as explained in the description of 
impacts of the Final Rule under Executive Order 12866 and Executive 
Order 13563 in Section V.A. of this preamble, noncitizens who receive a 
negative credible fear or reasonable fear determination because of the 
application of mandatory bars may spend less time in detention since 
they are deemed ineligible for relief at the screening stage. This rule 
would conserve DHS resources to the extent it precludes additional or 
more extended detention or monitoring of individuals in cases in which 
an AO has determined at the screening stage that a mandatory bar 
applies.
c. Benefits and Cost Savings
    Comment: A commenter stated that given the relatively small number 
of cases the rule would affect and the difficulty of analyzing 
mandatory bars, the risk of mistaken removal far outweighs DHS's 
claimed expediency.
    Response: As previously explained, DHS disagrees that the rule will 
lead to erroneous determinations. The Department is confident in the 
ability of AOs to apply the provisions of the rule correctly and in the 
safeguards in place--including 100-percent supervisory review and the 
ability of noncitizens to request immigration judge review of negative 
fear determinations--to ensure fear determinations and any resulting 
removals are conducted in accordance with the law. DHS has provided a 
detailed description of impacts of the Final Rule under Executive Order 
12866 and Executive Order 13563 in Section V.A. of this preamble.

V. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and 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'') direct agencies to assess the costs and benefits of available 
regulatory alternatives and, if a 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 Management and Budget (OMB) has designated this rule 
a ``significant regulatory action'' as defined under section 3(f) of 
E.O. 12866, as amended by Executive Order 14094, but it is not 
significant under section 3(f)(1) because its annual effects on the 
economy do not exceed $200 million in any year of the analysis. 
Accordingly, OMB has reviewed this rule.
1. Summary of Costs and Benefits of the Final Rule
    DHS is amending its regulations governing credible fear and 
reasonable fear screenings by allowing AOs the discretion to consider 
of mandatory bars to asylum contained in INA sec. 208(b)(2)(A)(i)-(v), 
8 U.S.C. 1158(b)(2)(A)(i)-(v), or the mandatory bars to statutory 
withholding of removal in INA sec. 241(b)(3)(B), 8 U.S.C. 
1231(b)(3)(B), and, consequently, reducing the amount of time that some 
noncitizens who are subject to those bars remain in the United States. 
AOs would have the discretion to consider the potential application of 
certain mandatory bars to asylum and statutory withholding of removal 
when screening the noncitizen for a credible fear of persecution 
(including cases where the CLP rule's presumption of asylum 
ineligibility applies and no exception or rebuttal is established, as 
well as credible fear determinations subject to the limitation on 
asylum eligibility pursuant to the Securing the Border rule where no 
exception is established) or reasonable fear of persecution.
    The final rule changes and streamlines the adjudicatory process for 
affected asylum or statutory withholding of removal claims arising out 
of the expedited removal process, as well as reinstatement of removal 
and certain final administrative removal order processes. By providing 
USCIS AOs flexibility to apply the public safety and national security 
statutory bars, the rule could enhance the public safety of the United 
States with the swift removal of some noncitizens from the country who 
pose a threat to public safety or national security.
    Table 1 provides a detailed summary of estimated quantifiable and 
unquantifiable impacts of the Final Rule's provisions.

[[Page 103405]]



                           Table 1--Summary of the Expected Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
           Population impacted             Annual population estimate               Expected impacts
----------------------------------------------------------------------------------------------------------------
Noncitizens issued credible fear          USCIS credible fear           Noncitizens who receive a
 determinations by USCIS.                  determinations have ranged   positive credible fear determination and
                                           from 28,000 to 125,000       are referred to EOIR by USCIS might
                                           noncitizens per year in      benefit from less time waiting for an
                                           the last 5 fiscal years      immigration judge's decision on their
                                           (see Table 3).               protection claims. This is a benefit in
                                                                        terms of equity and fairness, for
                                                                        noncitizens.
                                                                        Noncitizens who receive a
                                                                        negative credible fear determination due
                                                                        to application of mandatory bars may
                                                                        spend less time in detention, if they do
                                                                        not otherwise establish potential
                                                                        eligibility for protection under the
                                                                        Convention Against Torture.
                                                                        Noncitizens who receive a
                                                                        negative credible fear determination due
                                                                        to application of mandatory bars might
                                                                        lose the opportunity to gather evidence
                                                                        during the period of time between the
                                                                        fear screening and the merits
                                                                        immigration judge hearing. The
                                                                        noncitizen might either contest
                                                                        application of mandatory bars in full
                                                                        merits proceedings, or seek appellate
                                                                        review of the adjudicator's application
                                                                        of the bar during a merits proceeding.
Noncitizens issued reasonable fear        USCIS reasonable fear         Noncitizens who receive a
 determinations by USCIS.                  determinations have ranged   positive reasonable fear determination
                                           from 3,400 to 8,000          and are referred to EOIR by USCIS might
                                           noncitizens per year in      benefit from shorter waiting times for
                                           the last 5 fiscal years      an immigration judge's decision on
                                           (see Table 3).               withholding or deferral of removal only.
                                                                        Noncitizens who receive a
                                                                        negative reasonable fear determination
                                                                        due to application of mandatory bars may
                                                                        spend less time in detention, if they do
                                                                        not otherwise establish potential
                                                                        eligibility for protection under the
                                                                        Convention Against Torture.
                                                                        Noncitizens who receive a
                                                                        negative reasonable fear determination
                                                                        due to application of mandatory bars
                                                                        might lose the opportunity to gather
                                                                        evidence during the period of time
                                                                        between the fear screening and the
                                                                        merits immigration judge hearing. The
                                                                        noncitizen might either contest
                                                                        application of mandatory bars, or seek
                                                                        appellate review of the adjudicator's
                                                                        application of the bar during a merits
                                                                        proceeding.
DHS-USCIS...............................  850 AOs onboard as of Aug.    In credible/reasonable fear
                                           15, 2024 \103\.              cases where the AO exercises discretion
                                                                        to apply one of the mandatory bars,
                                                                        additional time may be spent developing
                                                                        the record as to the mandatory bar
                                                                        during fear screening interviews and
                                                                        conducting the written analysis related
                                                                        to the mandatory bar for the fear
                                                                        determination. This additional time may
                                                                        be offset to an extent by not having to
                                                                        include a separate analysis on the
                                                                        merits of the persecution claim in the
                                                                        fear determination where the negative
                                                                        credible or reasonable fear of
                                                                        persecution finding rests solely on the
                                                                        application of a mandatory bar. SAOs, in
                                                                        turn, may also spend additional time
                                                                        reviewing mandatory bar analyses in fear
                                                                        determinations where AOs exercise
                                                                        discretion to apply a mandatory bar at
                                                                        the screening stage.
EOIR....................................  734 immigration judges at     Potential non-budgetary cost
                                           end of FY 2023, as well as   savings if time worked on credible fear
                                           support staff and other      cases and reasonable fear cases
                                           personnel \104\.             decreases due to a reduction of
                                                                        referrals of credible fear and
                                                                        reasonable fear cases for full
                                                                        proceedings on the merits before
                                                                        immigration judges.
----------------------------------------------------------------------------------------------------------------

    In addition to the impacts summarized above, and as required by OMB 
Circular A-4, Table 2 presents the prepared accounting statement 
showing the costs and benefits to individuals affected by this 
rule.\105\
---------------------------------------------------------------------------

    \103\ Memorandum for the Record, from Ted Kim, Assoc. Dir., 
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: Asylum 
Division Training, Staffing, Capacity, and Credible Fear Procedures 
(Sept. 26, 2024).
    \104\ EOIR, ``Immigration Judge (IJ) Hiring, Data Generated: 
July 19, 2024'' https://www.justice.gov/eoir/media/1344911/dl?inline 
(last accessed Oct. 3, 2024).
    \105\ OMB, ``Circular A-4'' (Nov. 9, 2023) https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf.

                   Table 2--OMB A-4 Accounting Statement Time Period: FY 2019 Through FY 2023
----------------------------------------------------------------------------------------------------------------
                                        Primary          Minimum
             Category                   estimate         estimate          Maximum estimate      Source citation
----------------------------------------------------------------------------------------------------------------
                                                    BENEFITS
----------------------------------------------------------------------------------------------------------------
Monetized Benefits................             N/A              N/A   N/A......................             RIA
----------------------------------------------------------------------------------------------------------------
Annualized quantified, but                     N/A              N/A   N/A......................             RIA
 unmonetized, benefits.
----------------------------------------------------------------------------------------------------------------
Unquantified Benefits.............  The final rule will enable some asylum seekers to move                  RIA
                                    through the asylum process more quickly than may be the
                                    case currently, with potential decreases in adjudication
                                    timelines, thus promoting both fairness with potentially
                                    less time in confinement for those noncitizens subject to a
                                    bar, if they do not otherwise establish potential
                                    eligibility for protection under the Convention Against
                                    Torture regulations and equity for those noncitizens in
                                    removal proceedings who are not subject to a mandatory bar.
                                    In this rule the swift removal of these noncitizens may
                                    create disincentives for other noncitizens who would be
                                    subject to these mandatory bars when considering attempting
                                    to enter the United States. The final rule might enhance
                                    the public safety of the United States due to swift removal
                                    of some noncitizens from the country who pose a threat to
                                    public safety or national security.
----------------------------------------------------------------------------------------------------------------
                                                      COSTS
----------------------------------------------------------------------------------------------------------------
Annualized monetized costs........             N/A              N/A   N/A......................             RIA
----------------------------------------------------------------------------------------------------------------

[[Page 103406]]

 
Annualized quantified, but                     N/A              N/A   There could be potential              RIA
 unmonetized, costs.                                                   non-budget related cost
                                                                       savings due to reduction
                                                                       of annual credible fear
                                                                       of persecution referrals
                                                                       and reasonable fear of
                                                                       persecution referrals
                                                                       for full proceedings on
                                                                       the merits by
                                                                       immigration judges, by
                                                                       2.56 percent (808
                                                                       credible fear of
                                                                       persecution cases on
                                                                       average per year) and
                                                                       17.61 percent (174
                                                                       reasonable fear of
                                                                       persecution cases on
                                                                       average per year)
                                                                       respectively, as this
                                                                       would allow resources at
                                                                       EOIR to be directed to
                                                                       other work..
----------------------------------------------------------------------------------------------------------------
Qualitative (unquantified) costs..  Noncitizens who receive a negative credible fear or                     RIA
                                    reasonable fear determination might lose the opportunity to
                                    gather evidence and contest the application of mandatory
                                    bars in full merits hearing or seek appellate review of the
                                    immigration judge's decision, as they will be removed
                                    quickly under this rule.
                                    Where AOs exercise discretion to apply a mandatory bar at
                                    the screening stage, AOs will spend additional time
                                    eliciting testimony related to and analyzing the mandatory
                                    bar in the screening determination, and SAOs will spend
                                    additional time reviewing fear determinations containing a
                                    mandatory bar analysis. This additional time spent by AOs
                                    may be offset to an extent by not having to include a
                                    separate persecution analysis in the fear determination
                                    where the negative credible or reasonable fear of
                                    persecution finding rests solely on the application of a
                                    mandatory bar.
----------------------------------------------------------------------------------------------------------------
                                                    TRANSFERS
----------------------------------------------------------------------------------------------------------------
Annualized monetized transfers....             N/A              N/A   N/A......................             RIA
----------------------------------------------------------------------------------------------------------------
Annualized unquantified transfers.             N/A              N/A   N/A......................             RIA
----------------------------------------------------------------------------------------------------------------
Miscellaneous Analyses/Category...                            Effects                            Source citation
----------------------------------------------------------------------------------------------------------------
Effects on State, local, or Tribal                             None.                                        RIA
 governments.
----------------------------------------------------------------------------------------------------------------
Effects on small businesses.......    This rule does not directly regulate small entities, but              RIA
                                                        rather individuals.
----------------------------------------------------------------------------------------------------------------
Effects on wages..................                             None.                                        RIA
----------------------------------------------------------------------------------------------------------------
Effects on growth.................                             None.                                        RIA
----------------------------------------------------------------------------------------------------------------

    DHS is unable to quantify the impact of this rule with respect to 
the consideration of the mandatory bars for noncitizens who are a 
danger to the security of the United States at INA secs. 
208(b)(2)(A)(iv) and 241(b)(3)(B)(iv), 8 U.S.C. 1158(b)(2)(A)(iv) and 
1231(b)(3)(B)(iv), should the Security Bars rule go into effect. 85 FR 
84160. Because the Departments have delayed the effective date of that 
rule and it has never been implemented, the Department is unable to 
draw on historical data where this public health-related security bar 
has been flagged in credible fear and reasonable fear screenings. 
Furthermore, as explained above in Section IV.E.2, the bars to asylum 
and withholding of removal promulgated under the Security Bars rule 
would only apply in particular public health-related circumstances. See 
85 FR at 84193 (amending 8 CFR 208.13(c)).\106\ Because those 
circumstances are not currently in effect, DHS is unable to assess the 
potential population of noncitizens who would be subject to the 
provisions of the Security Bars and Processing rule under this rule. 
Finally, it is impossible to predict the number of cases when an AO 
would choose to use their discretion afforded by this rule to apply the 
security bars during a credible fear or reasonable fear screening.
---------------------------------------------------------------------------

    \106\ Specifically, the Security Bars rule would apply to a 
noncitizen if a communicable disease has triggered an ongoing 
declaration of a public health emergency under Federal law and they 
(1) have symptoms indicating that they are afflicted with the 
disease or (2) have come into contact with the disease within the 
number of days equivalent to the longest known incubation and 
contagion period for the disease, both per guidance issued by the 
Secretary or the Attorney General, as appropriate. 85 FR at 84193. 
The rule would also allow the Secretary and the Attorney General 
jointly, in consultation with the Secretary of Health and Human 
Services, to apply the bars in other circumstances, such as where a 
noncitizen ``comes'' from a place where a communicable disease of 
public health significance is prevalent or epidemic and traveled 
within a period determined by the Secretary and Attorney General. 
Id.
---------------------------------------------------------------------------

2. Background and Purpose of the Rule
    A DHS immigration officer who encounters a noncitizen subject to 
expedited removal may order the noncitizen to be ``removed from the 
United States without further hearing or review'' unless the noncitizen 
indicates ``an intention to apply for asylum'' or ``a fear of 
persecution'' or torture. INA sec. 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i); see 8 CFR 235.3(b)(4). If the noncitizen indicates 
such an intention or fear, the immigration officer must refer the 
noncitizen for an interview by an AO to determine whether the 
noncitizen has a ``credible fear of persecution.'' INA sec. 
235(b)(1)(A)(ii), (B)(ii), 8 U.S.C. 1225(b)(1)(A)(ii), (B)(ii). A 
credible fear is defined by statute as a ``significant possibility'' 
that the noncitizen could establish eligibility for asylum. INA sec. 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Under current regulations, 
a credible fear of persecution is a ``significant possibility'' that a 
noncitizen can establish eligibility for asylum under INA sec. 208, 8 
U.S.C. 1158 or for statutory withholding of removal under INA sec. 
241(b)(3), 8 U.S.C. 1231(b)(3). 8 CFR 208.30(e)(2). A credible fear of 
torture is a ``significant possibility'' that a noncitizen can 
establish that the noncitizen is eligible for withholding of removal or 
deferral of removal under the Convention Against Torture, pursuant to 8 
CFR 208.16 or 8 CFR 208.17. 8 CFR 208.30(e)(3).\107\
---------------------------------------------------------------------------

    \107\ USCIS, ``Questions and Answers: Credible fear 
screenings,'' https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening. (last 
accessed July 31, 2024).
---------------------------------------------------------------------------

    Certain noncitizens are prohibited from contesting removability 
before an immigration judge or from seeking any relief from removal. 
See INA sec. 238(b)(5), 8 U.S.C. 1228(b)(5) and INA sec. 241(a)(5), 8 
U.S.C.1231(a)(5). If such an individual, who is ordered removed under 
INA sec. 238(b), 8 U.S.C. 1228(b) or whose order of removal is 
reinstated under INA sec. 241(a)(5), 8

[[Page 103407]]

U.S.C.1231(a)(5), expresses a fear of return to the country to which 
they have been ordered removed, the case must be referred to an AO, who 
will determine whether the individual has a ``reasonable fear'' of 
persecution or torture. 8 CFR 208.31(a) and (b). A reasonable fear of 
persecution or torture is a reasonable possibility that the noncitizen 
would be persecuted on account of their race, religion, nationality, 
membership in a particular social group or political opinion, or a 
reasonable possibility that they would be tortured in the country of 
removal. 8 CFR 208.31(c).
    Though mandatory bars to asylum and withholding of removal had no 
impact on a credible fear or reasonable fear of persecution or torture 
determination before the current rulemaking, pursuant to existing 
procedures, AOs elicit testimony related to possible mandatory bars in 
credible fear and reasonable fear interviews.\108\ Under existing 
procedures, when information in the record indicates that a mandatory 
bar may apply to a noncitizen, the AO identifies the possible bar,\109\ 
and if, after consultation with a supervisory AO, there are reasonable 
grounds to believe a mandatory bar (other than firm resettlement) 
applies to a noncitizen, the AO completes a Memo of Adverse Information 
that is forwarded to ICE to notify ICE of the potential bar.\110\ 
Identifying any one of the possible mandatory bars does not affect the 
determination of whether a noncitizen has a credible fear or reasonable 
fear of persecution or torture.\111\ In credible fear cases, regardless 
of whether the AO flags a mandatory bar to asylum or withholding of 
removal, where the AO issues a positive credible fear determination, 
USCIS issues the noncitizen a Form I-862, Notice to Appear (NTA), for 
section 240 removal proceedings for further consideration of the 
noncitizen's claim. 8 CFR 208.30(e)(5). In reasonable fear cases, 
regardless of whether the AO flags a mandatory bar to withholding of 
removal, where the AO issues a positive reasonable fear determination, 
USCIS issues the noncitizen a Form I-863, Notice of Referral to the 
Immigration Judge, for consideration of the noncitizen's request for 
withholding of removal only. 8 CFR 208.31(e).
---------------------------------------------------------------------------

    \108\ See USCIS, RAIO Directorate--Officer Training: Credible 
Fear of Persecution and Torture Determinations (May 9, 2024); USCIS, 
RAIO Directorate--Officer Training: Reasonable Fear of Persecution 
and Torture Determinations (Feb. 13, 2017); see also Credible Fear 
Procedures Manual (CFPM), Section III.E.7; Reasonable Fear 
Procedures Manual (RFPM), Section III.F.
    \109\ In credible fear determinations, AOs flag possible bars on 
the Form I-870, Record of Determination/Credible fear Worksheet, and 
in the Global case management system; in reasonable fear 
determinations, AOs flag possible bars in the Global case management 
system.
    \110\ See CFPM, Section IV.G; see also RFPM Sections III.F.2. 
and IV.E.
    \111\ USCIS, ``Credible Fear Procedures Manual,'' Section IV.G, 
https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf; USCIS, ``Reasonable Fear 
Procedures Manual,'' Section IV.E, https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf.
---------------------------------------------------------------------------

    Table 3 illustrates the total credible fear determinations 
(positive and negative) issued by USCIS, the total credible fear 
completions by USCIS (including administrative closures), the total 
reasonable fear determinations (positive and negative) issued by USCIS, 
and the total reasonable fear completions by USCIS (including 
administrative closures) for FY 2019 through FY 2023. From FY 2019 
through FY 2023, in the aggregate and excluding administrative 
closures, the majority of credible fear determinations made by USCIS 
resulted in positive determinations: 68.76 percent of credible fear 
determinations issued by USCIS were positive,\112\ and 31.24 percent 
were negative.\113\ When administrative closures are included in the 
aggregate for that same period, 62.63 percent of credible fear 
completions resulted in positive determinations,\114\ 28.45 percent 
resulted in negative determinations,\115\ and 8.92 percent were 
administratively closed.\116\ For reasonable fear determinations issued 
by USCIS from FY 2019 to FY 2023, in the aggregate and excluding 
administrative closures, 36.52 percent resulted in positive 
determinations,\117\ and 63.48 percent resulted in negative 
determinations.\118\ For those same years, if administrative closures 
are included, 25.73 percent of reasonable fear completions by USCIS 
resulted in positive determinations,\119\ 44.72 percent resulted in 
negative determinations,\120\ and 29.55 percent were administratively 
closed.\121\
---------------------------------------------------------------------------

    \112\ 232,479 total positive credible fear determination/338,087 
FY 2019-FY 2023 all positive and negative credible fear 
determinations = 68.76%
    \113\ 105,608 total negative credible fear determination/338,087 
FY 2019-FY 2023 all positive and negative credible fear 
determinations = 31.24%
    \114\ 232,479 total positive credible fear determination/371,208 
FY 2019-FY 2023 total credible fear completions = 62.63%
    \115\ 105,608 total negative credible fear determination/371,208 
FY 2019-FY 2023 total credible fear completions = 28.45%
    \116\ (371,208 total credible fear completions--338,087 all 
positive and negative credible fear determinations)/371,208 FY 2019-
FY 2023 total credible fear completions = 8.92%
    \117\ 10,334 total positive reasonable fear determination/28,294 
FY 2019-FY 2023 all positive and negative reasonable fear 
determinations = 36.52%
    \118\ 17,960 total negative reasonable fear determination/28,294 
FY 2019-FY 2023 all positive and negative reasonable fear 
determinations = 63.48%
    \119\ 10,334 total positive reasonable fear determination/40,161 
FY 2019-FY 2023 total reasonable fear completions = 25.73%
    \120\ 17,960 total negative reasonable fear determination/40,161 
FY 2019-FY 2023 total reasonable fear completions = 44.72%
    \121\ (40,161 total reasonable fear completions--28,294 all 
positive and negative reasonable fear determinations)/40,161 FY 
2019-FY 2023 total reasonable fear completions = 29.55%
---------------------------------------------------------------------------

BILLING CODE 9111-97-P

[[Page 103408]]

[GRAPHIC] [TIFF OMITTED] TR18DE24.066

BILLING CODE 9111-97-C
    Table 4 presents instances where AOs flagged a potential bar to 
asylum or withholding of removal in a screening interview. It 
illustrates the distribution of possible mandatory bars across credible 
fear and reasonable fear completions. Without accounting for the ``firm 
resettlement'' bar, these mandatory bars protect the public from 
individuals who have persecuted others, have been convicted of 
significant crimes, represent a danger to the public, or have engaged 
in terrorist activity. Currently, flagging of any of the mandatory bars 
does not affect the credible or reasonable fear determination. Records 
show that of 232,479 total positive credible fear determinations and 
10,334 total positive reasonable fear determinations for FY 2019 
through FY 2023, AOs flagged mandatory bars in 15,982 total positive 
credible fear determinations (6.87 percent \122\) and 2,598 total 
positive reasonable fear determinations (25.14 percent \123\). In some 
instances, AOs may have flagged multiple mandatory bars in one case. Of 
those determinations, AOs flagged a mandatory bar other than the firm 
resettlement bar in 7,653 positive credible fear determinations and 
2,407 positive reasonable fear determinations. Overall, AOs flagged a 
mandatory bar, other than the firm resettlement bar, in 3.29 percent 
\124\ of total positive credible fear determinations and 23.29 percent 
\125\ of total positive reasonable fear determinations.
---------------------------------------------------------------------------

    \122\ Calculation: 15,982 total positive credible fear 
determination with possible mandatory bars/232,479 FY 2019-FY2023 
total positive credible fear determination = 6.87%
    \123\ Calculation: 2,598 total positive reasonable fear 
determinations with possible mandatory bars/10,334 FY 2019-FY2023 
total positive reasonable fear determinations = 25.14%
    \124\ Calculation: 7,653 total positive credible fear 
determination with mandatory bar excluding firm resettlement/232,479 
FY 2019-FY2023 total positive credible fear determination = 3.29%
    \125\ Calculation: 2,407 total positive reasonable fear 
determinations with mandatory bar excluding firm resettlement/10,334 
FY 2019-FY2023 total positive reasonable fear determinations = 
23.29%

                        Table 4--Fear Determinations by Specific Possible Mandatory Bars
                                         [FY 2019 through FY 2023 total]
----------------------------------------------------------------------------------------------------------------
                                              Positive         Negative          Positive           Negative
              5-Year total                 credible fear    credible fear    reasonable fear    reasonable fear
                                           determination    determination     determination      determination
----------------------------------------------------------------------------------------------------------------
Total Determinations Flagging Mandatory            15,982            8,923              2,598              5,242
 Bars...................................
Total Determinations Flagging Mandatory             7,653            4,004              2,407              4,979
 Bars Excl. Firm Resettlement Bar.......
Total Determinations *..................          232,479          105,608             10,334             17,960
Mandatory Bars as % of Total                        6.87%            8.45%             25.14%             29.19%
 Determinations.........................
Possible Mandatory Bars Excl. Firm                  3.29%            3.79%             23.29%             27.72%
 Resettlement as % of Total
 Determinations.........................
----------------------------------------------------------------------------------------------------------------
Source: USCIS Refugee, Asylum, and International Operations (``RAIO'') Directorate, Global (queried Sept. 9,
  2024).
Note: Fiscal Year refers to Case Completion Year. Cases can have more than one possible bar. * Total
  Determinations row derived from Table 3: Credible Fear and Reasonable Fear Data (FY 2019 through FY 2023), 5-
  year totals.


[[Page 103409]]

    During removal proceedings, the immigration judge determines 
whether a mandatory bar applies. ICE OPLA may consider and further 
develop the information identified by the AO when litigating before 
EOIR, and EOIR may consider this information along with other relevant 
factors in the case during the adjudication in immigration court 
proceedings.\126\ ICE ERO and EOIR may rely upon the identification of 
the potential bar in making custodial determinations.\127\ In Table 5, 
USCIS illustrates the EOIR pending caseload over the last five fiscal 
years. As of FY 2023, there were approximately 2.47 million pending 
cases. The EOIR pending caseload is a cumulative effect of multiple 
factors, such as, though not limited to, pending cases from previous 
years, new cases filed by DHS, the number of immigration judges onboard 
to adjudicate cases, and the space available on each judge's 
docket.\128\
---------------------------------------------------------------------------

    \126\ See Matter of D-R-, 25 I&N Dec. 445, 458 (BIA 2011) (``In 
immigration proceedings, the sole test for admission of evidence is 
whether the evidence is probative and its admission fundamentally 
fair.'' (quotation marks omitted)); Matter of Velasquez, 19 I&N Dec. 
377, 380 (BIA 1986) (same).
    \127\ Matter of R-A-V-P-, 27 I&N Dec. 803, 805 (BIA 2020) (``The 
immigration judge may also consider the likelihood that relief from 
removal will be granted in determining whether [a noncitizen] 
warrants bond.'').
    \128\ Executive Office for Immigration Review (2024). Current 
Operation Environment. EOIR Strategic Plan. Available at https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment. (last accessed Oct. 23, 2024).

Table 5--Pending Cases, Initial Receipts and Total Completions at Executive Office for Immigration Review (EOIR)
                                            [FY 2019 through FY 2023]
----------------------------------------------------------------------------------------------------------------
                                                           Pending cases
                       Fiscal year                           at end of     Initial receipts \2\       Total
                                                          fiscal year \1\                        completions \3\
----------------------------------------------------------------------------------------------------------------
2019....................................................        1,088,606               547,289          277,078
2020....................................................        1,261,077               369,705          232,296
2021....................................................        1,408,801               244,277          115,941
2022....................................................        1,791,493               707,589          314,696
2023....................................................        2,469,960             1,206,201          526,203
                                                         -------------------------------------------------------
    5-Year Total........................................        8,019,937             3,075,061        1,466,214
                                                         -------------------------------------------------------
    5-Year Annual Average...............................        1,603,987               615,012          293,243
----------------------------------------------------------------------------------------------------------------
Source: EOIR, ``Pending Cases, New Cases, and Total Completions, Data Generated: July 19, 2024'' https://www.justice.gov/eoir/media/1344791/dl?inline last accessed Oct. 3, 2024).
Notes: \1\ Pending cases equals removal, deportation, exclusion, asylum-only, and withholding only.
\2\ Initial receipts equals removal, deportation, exclusions, asylum-only, and withholding only.
\3\ Total completions equals initial case completions plus subsequent case completions.

    The purpose of this rule is to allow for consideration of mandatory 
bars during the credible fear of persecution screening process for 
certain noncitizens who are placed into expedited removal under INA 
sec. 235(b)(1), 8 U.S.C. 1225(b)(1) and have been referred to USCIS for 
a fear screening pursuant to 8 CFR 208.30, 208.33, 208.35, INA sec. 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii), and to allow for the 
consideration of mandatory bars during the reasonable fear screening 
process for certain noncitizens who have been ordered removed under INA 
sec. 238(b), 8 U.S.C. 1228(b), or whose deportation, exclusion, or 
removal order has been reinstated under INA sec. 241(a)(5), 8 U.S.C. 
1231(a)(5) and who are referred to USCIS for a reasonable fear 
screening pursuant to 8 CFR 208.31. The rule would allow AOs discretion 
to consider certain mandatory bars during a screening interview and, if 
an AO exercises that discretion, require AOs to enter a negative fear 
determination where there is evidence the mandatory bar may apply, the 
noncitizen is unable to establish at the relevant standard that the bar 
does not apply, and the noncitizen is otherwise unable to demonstrate a 
fear of torture at the applicable standard in a given case. The 
specific mandatory bars this rule would allow AOs to consider are those 
relating to public safety and/or national security threats, with the 
intent of allowing the Department flexibility in some cases to more 
quickly remove individuals who present such concerns. As the rule is 
not changing the current treatment of the ``firm resettlement'' 
mandatory bar, any fear screening determination will not be affected by 
information in the record related to a possible firm resettlement 
bar.\129\
---------------------------------------------------------------------------

    \129\ This rule will not change current treatment of the ``firm 
resettlement'' bar at INA sec. 208(b)(2)(A)(vi), 8 U.S.C. 
1158(b)(2)(A)(vi).
---------------------------------------------------------------------------

    The rule does not apply to unaccompanied children statutorily 
exempted from placement into expedited removal. It also does not apply 
to individuals already residing in the United States and whose presence 
in the United States is outside the coverage of noncitizens designated 
by the Secretary as subject to expedited removal, provided such 
individuals have not been ordered removed under INA sec. 238(b), 8 
U.S.C. 1228(b), or have not had an order of removal are reinstated 
under INA sec. 241(a)(5), 8 U.S.C.1231(a)(5). The rule also does not 
apply to stowaways or noncitizens who are physically present in or 
arriving in the Commonwealth of the Northern Mariana Islands (CNMI). 
Those classes of noncitizens will continue to be referred to asylum/
withholding-only hearings before an immigration judge under 8 CFR 
208.2(c).
3. Impacts of the Rule
a. Impacts on the Population Screened for Credible Fear or Reasonable 
Fear
    The final rule will impact certain individuals who undergo credible 
fear or reasonable fear screenings. These individuals are noncitizens 
who, where an AO exercises discretion to consider certain mandatory 
bars to asylum or statutory withholding of removal, are unable to 
establish at the relevant standard of proof that the bar or bars at 
issue do not apply to them and are otherwise unable to establish a fear 
of torture at the applicable standard for the given case. The type of 
credible fear or reasonable fear screenings where this rule could be 
outcome-determinative is limited to cases where a noncitizen is not 
found to have a credible fear or reasonable fear of torture and would

[[Page 103410]]

have been found to have a credible fear of persecution or a reasonable 
fear of persecution but for the application of a bar under this rule. 
The type of credible or reasonable fear determination where this rule 
will not be outcome-determinative are cases where a positive credible 
or reasonable fear of torture is found. Table 6 shows positive credible 
fear of persecution only cases and positive reasonable fear of 
persecution only cases; and a subset of those cases that were 
identified during the last five fiscal years as having mandatory bars 
other than the firm resettlement bar. For FY 2019 through FY 2023, 
USCIS records indicated that of total positive credible fear of 
persecution determinations, USCIS identified a potential mandatory bar 
(other than firm resettlement) in 2.56 percent of total cases with a 
positive credible fear of persecution determination. From FY 2019 
through FY 2023, USCIS identified a potential bar to withholding of 
removal in 17.61 percent of positive reasonable fear of persecution 
determinations.

    Table 6--Positive Credible Fear of Persecution, Positive Reasonable Fear of Persecution, Possible Mandatory Bar Flag Excluding Firm Resettlement
                                                                [FY 2019 through FY 2023]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Credible fear of persecution                             Reasonable fear of persecution
                                     -------------------------------------------------------------------------------------------------------------------
                                           Positive determination                                   Positive determination
                                     ----------------------------------   Possible mandatory  ----------------------------------  Possible mandatory bar
             Fiscal year                                                    bar excl. firm                            Total      excl. firm resettlement
                                          Possible      Total credible  resettlement as share      Possible        reasonable     as share of reasonable
                                        mandatory bar       fear of      of credible fear of     mandatory bar       fear of       fear of persecution
                                       excluding firm     persecution   persecution cases (%)   excluding firm     persecution          cases (%)
                                        resettlement         cases                               resettlement         cases
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019................................               898          50,074                  1.79                173           1,333                    12.98
2020................................               357           8,887                  4.02                 56             394                    14.21
2021................................               522          24,512                  2.13                 82             541                    15.16
2022................................               664          24,277                  2.74                239           1,127                    21.21
2023................................             1,600          50,132                  3.19                318           1,534                    20.73
                                     -------------------------------------------------------------------------------------------------------------------
    5-Year Total....................             4,041         157,882                  2.56                868           4,929                    17.61
                                     -------------------------------------------------------------------------------------------------------------------
    5-Year Annual Average...........               808          31,576                                      174             986
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS RAIO Directorate, Global (queried Sept. 9, 2024).
Note: Fiscal Year refers to Case Completion Year.
Note: Table 6 excludes Credible Fear of Torture and Reasonable Fear of Torture cases.

    Table 6 does not include positive credible fear of torture and 
positive reasonable fear of torture determinations. This rule will not 
impact credible or reasonable fear cases that receive a positive fear 
of torture determination, since the screening for torture encompasses 
screening for deferral of removal under CAT, for which there are no 
bars. Likewise, this rule will not affect negative credible or 
reasonable fear determinations where the AO did not flag a mandatory 
bar because in those cases, the application of a mandatory bar would 
not change the outcome. For the latter two categories, AOs will 
continue to identify bars where they may be evident in the record, even 
if they are not outcome determinative in a given case. Based on the 
information provided in Table 6, the additional annualized population 
that could receive a negative credible fear of persecution 
determination in a typical year is 808, and the additional annualized 
population that could receive a negative reasonable fear of persecution 
determination is 174 due to this rule. The Department expects that AOs 
would choose to apply a mandatory bar to an even smaller subset of 
these flagged cases, because not all flagged cases have sufficient 
supporting evidence easily available to the AO. Under the rule, 
noncitizens subject to the above cited bars will be more quickly 
removed from the United States, freeing up the Department's resources 
to safely, humanely, and effectively enforce and administer the 
immigration laws. The public safety of the United States may be 
enhanced as some noncitizens who have engaged in certain criminal 
activity, persecuted others, or been involved in terrorist activities 
are quickly removed from the country. The swift removal of these 
noncitizens may create disincentives for other noncitizens who would be 
subject to these mandatory bars when considering attempting to enter 
the United States.
    The pending caseload at EOIR (see Table 5) leads to extended wait 
times for noncitizens who received a positive credible fear 
determination and were then referred to EOIR by USCIS, which creates 
uncertainty for a subset of those ultimately determined to merit asylum 
and other forms of humanitarian protection. This rule might help such 
noncitizens experience shorter wait times, advancing equity for those 
noncitizens in removal proceedings who are not subject to a mandatory 
bar, less detention time for those noncitizens to whom a bar is applied 
and who otherwise have not been able to establish potential eligibility 
for protection under the Convention Against Torture regulations, and 
fairness.
    Noncitizens would primarily bear the costs of the final rule. 
Noncitizens to whom an AO would apply the above-cited bars in credible 
fear and reasonable fear screenings would lose the opportunity to 
contest the application of the mandatory bars in a full section 240 
merits hearing before an immigration judge or to seek appellate review 
of the immigration judge's decision should the immigration judge 
determine that a mandatory bar applies and affirm the negative 
determination. Such noncitizens would experience a shorter period of 
time between the fear screening before USCIS and removal under the 
final rule than they currently do. Therefore, they would lose the 
opportunity to gather additional evidence to show that the mandatory 
bar in question should not be applied in their case.
b. Impacts to USCIS
    AOs will have the discretion to consider certain mandatory bars, 
while evaluating whether the noncitizen has met the requisite standard 
of proof with respect to their eligibility for asylum or statutory 
withholding of removal, as

[[Page 103411]]

applicable, when making credible fear determinations and reasonable 
fear determinations under this rule. Under this rule, noncitizens will 
still be able to seek review of negative credible fear or reasonable 
fear determinations before an immigration judge. AOs already identify 
potential mandatory bars in credible fear or reasonable fear 
determinations, and under this rule will only consider a bar in those 
cases where there is easily verifiable evidence available to the AO 
that a mandatory bar may apply, and the AO can consider that bar 
efficiently during a screening interview.
    In some cases, the final rule will result in AOs spending 
additional time during fear screenings to inquire into the 
applicability of mandatory bars, additional time documenting the 
mandatory bar analysis for the credible or reasonable fear 
determination, and additional time spent by SAOs to review any 
mandatory bar analysis. This additional time may be offset to an extent 
by not having to include a separate persecution analysis in the fear 
determination where the negative credible or reasonable fear of 
persecution finding rests solely on the application of a mandatory bar. 
AOs will have discretion whether to consider such bars at the screening 
stage and could therefore minimize the government costs associated with 
the final rule in cases where the additional development of the record 
and analysis would not be outcome determinative or an otherwise 
effective use of resources.
    The benefits of the final rule are expected to include a modest, 
unquantified reduction of the resources expended to detain noncitizens 
subject to the above cited mandatory bars for potentially lengthy 
periods of time while their cases are considered by immigration courts.
c. Impacts to EOIR
    Where application of this rule results in a negative credible fear 
or reasonable fear determination that would have otherwise been a 
positive credible fear of persecution or reasonable fear of persecution 
determination, those cases will not be referred to EOIR for removal 
proceedings. This rule is therefore expected to reduce the number of 
credible fears of persecution and reasonable fear of persecution cases 
being referred to EOIR for removal proceedings. Additionally, 
immigration judges will continue to conduct de novo review of a 
negative credible fear and reasonable fear determinations when 
requested by a noncitizen. Preventing certain cases where a mandatory 
bar applied at the screening stage from being placed into removal 
proceedings before EOIR, may create additional capacity for immigration 
judges to work on their existing caseloads and other high-priority 
matters.
    Accordingly, every such positive credible fear or reasonable fear 
of persecution determination that would have been referred to EOIR for 
removal proceedings that, instead, results in a negative determination 
under this rule will constitute a direct reduction in new cases that 
EOIR would have to adjudicate. If the negative determination is 
concurred upon by an immigration judge where a review is requested. 
Given EOIR's significant pending caseload of approximately 2.47 million 
cases (see Table 5), reducing the number of positive credible fear of 
persecution cases referred to EOIR by 2.56 percent \130\ and positive 
reasonable fear of persecution cases referred to EOIR by 17.61 percent 
\131\ (see Table 6) as upper bound estimates, will enable EOIR to focus 
limited resources on existing pending cases and reduce the overall 
pending caseload.
---------------------------------------------------------------------------

    \130\ Calculation: 808 5-Year Average of Positive credible fear 
of persecution cases with a flag of mandatory bar excluding ``firm 
resettlement''/31,576 5-Year Average of Positive credible fear of 
persecution cases = 2.56 percent.
    \131\ Calculation:- 174 5-Year Average of Positive credible fear 
of persecution cases with a flag of mandatory bar excluding ``firm 
resettlement''/986 5-Year Average of Positive credible fear of 
persecution cases = 17.61 percent.
---------------------------------------------------------------------------

    The estimated reduction in new cases is based on positive credible 
or reasonable fear of persecution cases referred to EOIR from FY 2019 
through FY 2023 and should be considered as an upper bound due to (a) 
lack of sufficient supporting evidence of application of mandatory bars 
except for firm resettlement available to AOs during the screening 
stage and (b) conversion of a subset of fear of persecution cases to 
fear of torture cases after application of mandatory bars. A reduction 
in the pending caseload will reduce the overall time required for 
adjudications because dockets would not have to be set as far into the 
future. This reduction in turn would better enable EOIR to meet its 
mission of fairly, expeditiously, and uniformly interpreting and 
administering the Nation's immigration laws, including granting relief 
or protection to noncitizens who are eligible.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Public Law 104-121 (March 29, 1996), requires Federal 
agencies to consider the potential impact of regulations on small 
businesses, small governmental jurisdictions, and small organizations 
during the development of their rules. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
or governmental jurisdictions with populations of less than 
50,000.\132\
---------------------------------------------------------------------------

    \132\ A small business is defined as any independently owned and 
operated business not dominant in its field that qualifies as a 
small business per the Small Business Act, 15 U.S.C. 632.
---------------------------------------------------------------------------

    DHS has reviewed this rule in accordance with the RFA, Public Law 
96-354, 94 Stat. 1164 (1980), as amended (codified at 5 U.S.C. 601-612) 
and has certified that this rule would not have a significant economic 
impact on a substantial number of small entities. The rule would not 
regulate ``small entities'' as that term is defined in 5 U.S.C. 601(6). 
Only individuals, rather than entities, are eligible to apply for 
asylum or are otherwise placed in immigration proceedings.

C. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal 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, which 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.\133\ 
The inflation adjusted value of $100 million in 1995 is approximately 
$200 million in 2023 based on the Consumer Price Index for All Urban 
Consumers (CPI-U).\134\
---------------------------------------------------------------------------

    \133\ See Public Law 104-4, 109 Stat. 48; see also 2 U.S.C. 
1532(a).
    \134\ See Bureau of Labor Statistics, ``Historical Consumer 
Price Index for All Urban Consumers (CPI-U): U.S. city average, all 
items, by month,'' https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202312.pdf (last visited Jan. 17, 2024). 
Calculation of inflation: (1) Calculate the average monthly CPI-U 
for the reference year (1995) and the current year (2023); (2) 
Subtract reference year CPI-U from current year CPI-U; (3) Divide 
the difference of the reference year CPI-U and current year CPI-U by 
the reference year CPI-U; (4) Multiply by 100 = [(Average monthly 
CPI-U for 2023 - Average monthly CPI-U for 1995) / (Average monthly 
CPI-U for 1995)] x 100 = [(304.702-152.383) / 152.383] = (152.319/
152.383) = 0.99958001 x 100 = 99.96 percent = 100 percent (rounded). 
Calculation of inflation-adjusted value: $100 million in 1995 
dollars x 2.00 = $200 million in 2023 dollars.

---------------------------------------------------------------------------

[[Page 103412]]

    The term ``Federal mandate'' means a Federal intergovernmental 
mandate or a Federal private sector mandate.\135\ The term ``Federal 
intergovernmental mandate'' means, in relevant part, a provision that 
would impose an enforceable duty upon State, local, or Tribal 
governments (except as a condition of Federal assistance or a duty 
arising from participation in a voluntary Federal program).\136\ The 
term ``Federal private sector mandate'' means, in relevant part, a 
provision that would impose an enforceable duty upon the private sector 
except (except as a condition of Federal assistance or a duty arising 
from participation in a voluntary Federal program).\137\
---------------------------------------------------------------------------

    \135\ See 2 U.S.C. 1502(1), 658(6).
    \136\ 2 U.S.C. 658(5).
    \137\ 2 U.S.C. 658(7).
---------------------------------------------------------------------------

    This rule does not contain such a mandate, because it does not 
impose any enforceable duty upon any other level of government or 
private sector entity. Any downstream effects on such entities would 
arise solely due to their voluntary choices and would not be a 
consequence of an enforceable duty. Similarly, any costs or transfer 
effects on State and local governments would not result from a Federal 
mandate as that term is defined under UMRA.\138\ The requirements of 
title II of UMRA, therefore, do not apply, and DHS has not prepared a 
statement under UMRA.
---------------------------------------------------------------------------

    \138\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

D. Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act)

    The Congressional Review Act (CRA) was included as part of SBREFA 
by section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et 
seq. The Office of Information and Regulatory Affairs has determined 
that this rule does not meet the criteria set forth in 5 U.S.C. 804(2). 
DHS has complied with the CRA's reporting requirements and has sent 
this rule to Congress and to the Comptroller General as required by 5 
U.S.C. 801(a)(1).

E. Executive Order 13132 (Federalism)

    Executive Order 13132 was issued to ensure the appropriate division 
of policymaking authority between the States and the Federal Government 
and to further the policies of UMRA. This rule will 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.

F. Executive Order 12988 (Civil Justice Reform)

    This rule was drafted and reviewed in accordance with Executive 
Order 12988, Civil Justice Reform. DHS has determined that this rule 
meets the applicable standards provided in section 3 of Executive Order 
12988.

G. Family Assessment

    DHS has reviewed this rule in line with the requirements of section 
654 of the Treasury and General Government Appropriations Act, 
1999,\139\ enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act, 1999.\140\ DHS has systematically 
reviewed the criteria specified in section 654(c)(1), by evaluating 
whether this regulatory action: (1) impacts the stability or safety of 
the family, particularly in terms of marital commitment; (2) impacts 
the authority of parents in the education, nurture, and supervision of 
their children; (3) helps the family perform its functions; (4) affects 
disposable income or poverty of families and children; (5) only 
financially impacts families, if at all, to the extent such impacts are 
justified; (6) may be carried out by State or local government 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.
---------------------------------------------------------------------------

    \139\ See 5 U.S.C. 601 note.
    \140\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------

    DHS has determined that this rule will not negatively affect family 
well-being or the autonomy or integrity of the family as an 
institution, as it does not change the process for family credible fear 
screenings.

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

    This rule does not have Tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does 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.

I. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    Executive Order 13045 requires agencies to consider the impacts of 
environmental health risks or safety risks that may disproportionately 
affect children. DHS has reviewed this rule and have determined that 
this rule is not a covered regulatory action under Executive Order 
13045. The rule is not considered significant under Section 3(f)(1) of 
Executive Order 12866 and would not create an environmental risk to 
health or risk to safety that might disproportionately affect children.

J. National Environmental Policy Act

    DHS and its components analyze final actions to determine whether 
the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., 
applies to them and, if so, what degree of analysis is required. DHS 
Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01 
(Instruction Manual) \141\ establish the policies and procedures that 
DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------

    \141\ The Instruction Manual contains DHS's procedures for 
implementing NEPA and was issued November 6, 2014, available at DHS, 
``Implementing the National Environmental Policy Act,'' https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex (last visited July 25, 2024).
---------------------------------------------------------------------------

    NEPA implementing procedures allow Federal agencies to establish 
categories of actions (``categorical exclusions'') that experience has 
shown do not, individually or cumulatively, have a significant effect 
on the human environment and, therefore, do not require an 
environmental assessment (EA) or environmental impact statement 
(EIS).\142\ An agency is not required to prepare an EA or EIS for a 
proposed action ``if the proposed agency action is excluded pursuant to 
one of the agency's categorical exclusions.'' 42 U.S.C. 4336(a)(2). The 
Instruction Manual, Appendix A lists the DHS Categorical 
Exclusions.\143\
---------------------------------------------------------------------------

    \142\ [thinsp]40 CFR 1507.3(e)(2)(ii) and 1501.4.
    \143\ [thinsp]See Appendix A, Table 1.
---------------------------------------------------------------------------

    Under DHS 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

[[Page 103413]]

create the potential for a significant environmental effect.\144\
---------------------------------------------------------------------------

    \144\ DHS, ``Instruction Manual 023-01-001-01, Revision 01, 
Implementation of the National Environmental Policy Act (NEPA),'' 
V.B(2)(a)-(c), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
---------------------------------------------------------------------------

    The rule allows AOs to apply certain bars to asylum and statutory 
withholding of removal at the fear screening stage. DHS has determined 
that the promulgation of this rule satisfies all three requirements for 
a categorical exclusion. First, the rule fits clearly within 
categorical exclusion A3 of the Instruction Manual, Appendix A, for the 
promulgation of rules that ``interpret or amend an existing regulation 
without changing its environmental effect.'' The rule only changes the 
point in time at which certain statutory bars are considered but would 
not change any environmental effect of the bars. Second, this rule is a 
standalone rule and is not part of any larger action. Third, DHS is not 
aware of any extraordinary circumstances that would cause a significant 
environmental impact. Therefore, this rule is categorically excluded, 
and no further NEPA analysis or documentation is required.

K. Paperwork Reduction Act

    This rule does not propose new, or revisions to existing, 
``collection[s] of information'' as that term is defined under the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13, 109 Stat. 163, 44 
U.S.C. chapter 35) and its implementing regulations, 5 CFR part 1320.

List of Subjects in 8 CFR Part 208

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

    Accordingly, for the reasons set forth in the preamble, the 
Secretary of Homeland Security amends 8 CFR part 208 as set forth 
below.

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

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


0
2. Amend Sec.  208.30 by revising the first sentence of paragraph 
(e)(2) and revising paragraph (e)(5) to read as follows:


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

* * * * *
    (e) * * *
    (2) An alien will be found to have 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 can establish eligibility for asylum under section 208 of the 
Act or for withholding of removal under section 241(b)(3) of the Act, 
including that the alien is not subject to a mandatory bar, if 
considered under paragraph (e)(5)(ii) of this section. * * *
* * * * *
    (5) Except as provided in paragraph (e)(6) or (7) of this section:
    (i) If an alien is able to establish a credible fear of persecution 
or torture but appears to be subject to one or more of the mandatory 
bars to applying for, or being granted, asylum contained in section 
208(a)(2) and (b)(2)(A)(vi) of the Act, the Department of Homeland 
Security shall nonetheless issue a Notice to Appear or retain 
jurisdiction over the alien's case for further consideration of the 
alien's claim pursuant to paragraph (f) of this section, if the alien 
is not a stowaway.
    (ii) If an alien, who is unable to establish a credible fear of 
torture, is able to establish a credible fear of persecution but 
appears to be subject to one or more of the mandatory bars to being 
granted either asylum or withholding of removal, as set forth in 
section 208(b)(2)(A)(i) through (v) of the Act or section 241(b)(3)(B) 
of the Act, respectively, the asylum officer may consider the 
applicability of such bar(s) as part of the asylum officer's credible 
fear determination.
    (A) The asylum officer shall issue a negative credible fear finding 
with regard to the alien's eligibility for asylum or withholding of 
removal under the Act if the asylum officer determines there is not a 
significant possibility that, in a proceeding on the merits, the alien 
would be able to establish by a preponderance of the evidence that such 
bar(s) do not apply.
    (B) The asylum officer shall issue a Notice to Appear or retain 
jurisdiction over the alien's case for further consideration of the 
alien's claim pursuant to paragraph (f) of this section, if the asylum 
officer finds that there is a significant possibility that, in a 
proceeding on the merits, the alien would be able to establish by a 
preponderance of the evidence that such bar(s) do not apply.
    (iii) In all cases, if the alien is a stowaway and the Department 
would otherwise initiate proceedings under paragraphs (e)(5)(i) and 
(ii) of this section, the Department shall place the alien in 
proceedings for consideration of the alien's claim pursuant to Sec.  
208.2(c)(3) and shall not retain jurisdiction over the case for further 
consideration nor issue a Notice to Appear.
* * * * *


0
3. Amend Sec.  208.31 by revising paragraphs (c) and (g) to read as 
follows:


Sec.  208.31   Reasonable fear of persecution or torture determinations 
involving aliens ordered removed under section 238(b) of the Act and 
aliens whose removal is reinstated under section 241(a)(5) of the Act.

* * * * *
    (c) Interview and procedure. The asylum officer shall conduct the 
interview in a non-adversarial manner, separate and apart from the 
general public. At the time of the interview, the asylum officer shall 
determine that the alien has an understanding of the reasonable fear 
determination process. The alien may be represented by counsel or an 
accredited representative at the interview, at no expense to the 
Government, and may present evidence, if available, relevant to the 
possibility of persecution or torture. The alien's representative may 
present a statement at the end of the interview. The asylum officer, in 
his or her discretion, may place reasonable limits on the number of 
persons who may be present at the interview and the length of the 
statement. If the alien is unable to proceed effectively in English, 
and if the asylum officer is unable to proceed competently in a 
language chosen by the alien, the asylum officer shall arrange for the 
assistance of an interpreter in conducting the interview. The 
interpreter may not be a representative or employee of the applicant's 
country or nationality, or if the applicant is stateless, the 
applicant's country of last habitual residence. The asylum officer 
shall create a summary of the material facts as stated by the 
applicant. At the conclusion of the interview, the officer shall review 
the summary with the alien and provide the alien with an opportunity to 
correct errors therein. The asylum officer shall create a written 
record of his or her determination, including a summary of the material 
facts as stated by the applicant, any additional facts relied on by the 
officers, and the officer's determination of whether, in light of such 
facts, the alien has established a reasonable fear of persecution or 
torture. The alien shall be determined to have a reasonable fear of 
persecution if the alien establishes a reasonable possibility that he 
or she would be persecuted on account of his

[[Page 103414]]

or her race, religion, nationality, membership in a particular social 
group or political opinion, unless the alien appears to be subject to 
one or more of the mandatory bars to being granted withholding of 
removal under the Act contained in section 241(b)(3)(B) of the Act and 
the alien fails to show that there is a reasonable possibility that no 
mandatory bar applies, if the asylum officer considers such bars. The 
alien shall be determined to have a reasonable fear of torture if the 
alien establishes a reasonable possibility that he or she would be 
tortured in the country of removal.
* * * * *
    (g) Review by immigration judge. The asylum officer's negative 
decision regarding reasonable fear shall be subject to review by an 
immigration judge upon the alien's request. If the alien requests such 
review, the asylum officer shall serve him or her 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. The immigration 
judge's review shall proceed under the procedures set forth in 8 CFR 
1208.31(g).


0
4. Amend Sec.  208.33 by revising paragraphs (b)(2)(i) through (iii) to 
read as follows:


Sec.  208.33  Lawful pathways condition on asylum eligibility.

* * * * *
    (b) * * *
    (2) * * *
    (i) In cases in which the asylum officer enters a negative credible 
fear determination under paragraph (b)(1)(i) of this section, the 
asylum officer will assess whether the alien has established a 
reasonable possibility of persecution (meaning a reasonable possibility 
of being persecuted because of their race, religion, nationality, 
membership in a particular social group, or political opinion) or 
torture, with respect to the identified country or countries of removal 
identified pursuant to section 241(b) of the Act. As part of this 
reasonable possibility determination, if there is evidence that the 
alien is subject to one or more of the mandatory bars to being granted 
withholding of removal under the Act contained in section 241(b)(3)(B) 
of the Act, the asylum officer may consider the applicability of such 
bar(s).
    (ii) In cases described in paragraph (b)(2)(i) of this section, if 
the alien establishes a reasonable possibility of persecution with 
respect to the identified country or countries of removal and, to the 
extent bars are considered, that there is a reasonable possibility that 
no mandatory bar applies, the Department will issue a Form I-862, 
Notice to Appear. If the alien establishes a reasonable possibility of 
torture with respect to the identified country or countries of removal, 
the Department will issue a Form I-862, Notice to Appear.
    (iii) In cases described in paragraph (b)(2)(i) of this section, if 
an alien fails to establish a reasonable possibility of persecution 
with respect to the identified country or countries of removal or, to 
the extent bars are considered, fails to establish that there is a 
reasonable possibility that no mandatory bar applies, and fails to 
establish a reasonable possibility of torture with respect to the 
identified country or countries of removal, the asylum officer will 
provide the alien with a written notice of decision and inquire whether 
the alien wishes to have an immigration judge review the negative 
credible fear determination.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2024-29617 Filed 12-17-24; 8:45 am]
 BILLING CODE 9111-97-P