Security Bars and Processing

Federal RegisterDec 23, 2020

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

RIN 1615-AC57

[Docket No: USCIS 2020-0013]

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[Dir. Order No. 11-2021]

RIN 1125-AB08

Security Bars and Processing

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security (“DHS”); Executive Office for Immigration Review, Department of Justice (“DOJ”)

ACTION:

Final rule.

SUMMARY:

On July 9, 2020, DHS and DOJ (collectively, “the Departments”) published a notice of proposed rulemaking (“NPRM”) clarifying that the danger to the security of the United States statutory bar to eligibility for asylum and withholding of removal may encompass emergency public health concerns. This final rule responds to comments received in response to the NPRM and reflects (and in some instances, modifies) intervening changes made to the regulatory framework by Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, published December 11, 2020 (“Global Asylum Final Rule”). Namely, it amends existing regulations to clarify that in certain circumstances there are “reasonable grounds for regarding [an] alien as a danger to the security of the United States” or “reasonable grounds to believe that [an] alien is a danger to the security of the United States” based on emergency public health concerns generated by a communicable disease, making the alien ineligible to be granted asylum in the United States under section 208 of the Immigration and Nationality Act (“INA”) or the protection of withholding of removal under the INA (“statutory withholding of removal”) or subsequent regulations (because of the threat of torture). The final rule further allows DHS to exercise its prosecutorial discretion regarding how to process individuals subject to expedited removal who are determined to be ineligible for asylum and withholding of removal in the United States because they are subject to the danger to the security of the United States. Finally, the rule modifies the process in expedited removal proceedings for screening aliens for potential eligibility for deferral of removal (who are ineligible for withholding of removal as subject to the danger to the security of the United States bar).

DATES:

This final rule is effective January 22, 2021.

FOR FURTHER INFORMATION CONTACT:

FOR USCIS:

Andrew Davidson, Asylum Division Chief, Refugee, Asylum and International Affairs Directorate, U.S. Citizenship and Immigration Services, DHS; telephone 202-272-8377 (not a toll-free call).

For EOIR:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Executive Summary

On July 9, 2020, the Departments published an NPRM entitled Security Bars and Processing. 85 FR 41201

et seq.

(July 9, 2020). In this final rule, the Departments respond to comments received in response to the NPRM and changes made to the regulatory framework by the Global Asylum Final Rule, in order to mitigate the risk of aliens bringing a serious communicable

disease to the United States, or further spreading it within our country. Thus, the Departments make three fundamental and necessary reforms to the Nation's immigration system: (1) Clarifying that the statutory “danger to the security of the United States” bars to eligibility for asylum and withholding of removal apply in certain contexts involving public health crises caused by communicable diseases so that aliens can be expeditiously removed, as appropriate, (2) as to aliens determined during credible fear screenings to be ineligible for asylum and withholding of removal on the basis of the danger to the security of the United States bars or ineligible for asylum for having failed to apply for protection from persecution in a third country where potential relief is available while en route to the United States pursuant to Asylum Eligibility and Procedural Modifications, 85 FR 82260 (December 17, 2020) (“Third-Country Transit Final Rule”), streamlining screening for potential eligibility for deferral of removal in the expedited removal process to similarly allow for the expeditious removal of aliens ineligible for deferral, and (3) as to aliens determined during credible fear screenings to be ineligible for asylum and withholding of removal on the basis of the danger to the security of the United States bars or ineligible for asylum for having failed to apply for protection from persecution in a third country where potential relief is available while en route to the United States pursuant to the Third-Country Transit Final Rule, but who nevertheless establish that they are more likely than not to be tortured in the prospective country of removal, allowing DHS to utilize its prosecutorial discretion to either place the aliens into asylum-and-withholding-only removal proceedings under 8 CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1) (“asylum-and-withholding-only proceedings”)

or to remove them to third countries where they would not be more likely than not to be tortured.

The Department of Health and Human Services defines a communicable disease as “an illness due to a specific infectious agent or its toxic products which arises through transmission of that agent or its products from an infected person or animal or a reservoir to a susceptible host, either directly, or indirectly through an intermediate animal host, vector, or the inanimate environment.” 42 CFR 71.1(b).

Asylum-and-withholding-only proceedings are adjudicated in the same manner that had applied to certain alien crewmembers, stowaways, and applicants for admission under the Visa Waiver Program, among other categories of aliens who are not entitled by statute to removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. 8 CFR 208.2(c)(1)(i)-(viii), 1208.2(c)(1)(i)-(viii). These proceedings generally follow the same rules of procedure that apply in section 240 proceedings, but the immigration judge's consideration is limited solely to a determination on the alien's eligibility for asylum, withholding of removal and deferral of removal (and, if the alien is eligible for asylum, whether he or she should receive it as a matter of discretion). 8 CFR 208.2(c)(3)(i), 1208.2(c)(3)(i).

The amendments made by this final rule will apply to aliens who enter the United States after the rule's effective date, except that the amendments will not apply to aliens who had, before the date of an applicable joint Secretary of Homeland Security and Attorney General designation of an area or areas of the world as to which it is necessary for the public health that certain aliens who were present there be regarded as a danger to the security of the United States, (1) filed asylum and withholding of removal applications, or (2) indicated a fear of return in expedited removal proceedings.

II. Background

The preamble discussion in the NPRM is generally incorporated by reference in this final rule.

As of the date the NPRM was published on July 9, 2020, 3,239,412 persons in the United

States were reported to have contracted COVID-19 and 136,145 had died.

The number of persons infected has now reached 16,519,668 and the death toll has reached 302,992 (as of December 15, 2020).

The preamble discussion is not incorporated to the extent specifically noted in this final rule, or in the context of proposed regulatory text that is not contained in this final rule.

WorldMeter, COVID-19 Tracking Tool,

https://www.worldometers.info/coronavirus/#countries

(last visited November 3, 2020).

CDC COVID Data Tracker,

https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days

(last visited December 17, 2020).

As of December 2020, the impact of the COVID-19 pandemic has been similar to that pandemic impact feared by then-Secretary of Homeland Security Michael Chertoff in 2006—“[a] severe pandemic . . . may affect the lives of millions of Americans, cause significant numbers of illnesses and fatalities, and substantially disrupt our economic and social stability”.

DHS,

Pandemic Influenza: Preparedness, Response, and Recovery: Guide for Critical Infrastructure and Key Resources,

Introduction at 1 (2006) (Michael Chertoff, Secretary of Homeland Security),

https://www.dhs.gov/sites/default/files/publications/cikrpandemicinfluenzaguide.pdf.

On December 16, 2020, the Federal Reserve Board's Open Market Committee (“FOMC”) projected that real gross domestic product (“GDP”) in fiscal year 2020 would fall by 2.4 percent and that the national unemployment rate would be 6.7 percent.

As a result of COVID-19, the national unemployment rate rose from 3.5 percent in February 2020 to a peak of 14.7 percent in April, before subsequently declining, most recently to 6.7 percent in November.

The FOMC also projected that GDP will rebound by 4.2 percent in fiscal year 2021 and the national unemployment rate will fall to 5.0 percent.

On December 16, 2020, the FOMC issued a statement finding that:

FOMC, Federal Reserve System,

December 16, 2020: FOMC Projections Materials, Accessible Version

(table 1). The 2.4 percent fall in GDP is the median projection of Federal Reserve Board members and Federal Reserve Bank presidents from the 4th quarter of 2019 to the 4th quarter of 2020 under each participant's assessment of appropriate monetary policy, with the upper end of central tendency (which excludes the three highest and three lowest projections) a decrease of 2.2 percent and the lower end of central tendency at drop of 2.5 percent. The 6.7 percent unemployment rate is the median projection of the average civilian unemployment rate in the 4th quarter of 2020, with the upper end of central tendency at 6.8 percent and the lower end of range at 6.7 percent.

Bureau of Labor Statistics, U.S. Department of Labor,

The Employment Situation—June 2020

(table A-1) and

The Employment Situation—November 2020

(table A-1) (both providing the seasonally adjusted unemployment rate for the civilian noninstitutional population, persons 16 years old and over).

December 16, 2020: FOMC Projections Materials, Accessible Version

(table 1). The 4.2 percent rise in GDP is the median projection of Federal Reserve Board members and Federal Reserve Bank presidents from the 4th quarter of 2020 to the 4th quarter of 2021 under each participant's assessment of appropriate monetary policy, with the upper end of central tendency an increase of 5.0 percent and the lower end of central tendency an increase of 3.7 percent. The 5.0 percent unemployment rate is the median projection of the average civilian unemployment rate in the 4th quarter of 2021, with the upper end of central tendency at 5.4 percent and the lower end of range at 4.7 percent.

The COVID-19 pandemic is causing tremendous human and economic hardship across the United States and around the world. Economic activity and employment have continued to recover but remain well below their levels at the beginning of the year. . . . The path of the economy will depend significantly on the course of the virus. The ongoing public health crisis will continue to weigh on economic activity, employment, and inflation in the near term, and poses considerable risks to the economic outlook over the medium term.

FOMC, Federal Reserve System,

Federal Open Market Committee Statement

(December 16, 2020).

After evaluating the effects of voluntary and mandatory containment measures, the International Monetary Fund (“IMF”) reported in October that:

If lockdowns were largely responsible for the economic contraction, it would be reasonable to expect a quick economic rebound when they are lifted. But if voluntary social distancing played a predominant role, then economic activity would likely remain subdued until health risks recede.

[T]he analysis suggests that lockdowns and voluntary social distancing played a near comparable role in driving the economic recession. The contribution of voluntary distancing in reducing mobility was stronger in advanced economies, where people can work from home more easily and sustain periods of temporary unemployment because of personal savings and government benefits.

When looking at the recovery path ahead, the importance of voluntary social distancing as a contributing factor to the downturn suggests that lifting lockdowns is unlikely to rapidly bring economic activity back to potential if health risks remain. . . . These findings suggest that economies will continue to operate below potential while health risks persist, even if lockdowns are lifted.

IMF,

World Economic Outlook: Chapter 2: The Great Lockdown: Dissecting the Economic Effects

at 65-66 (October 2020).

IV. Public Comments on the Proposed Rule

A. Summary of Public Comments

On July 9, 2020, the Departments published the NPRM (docket USCIS-2020-0013). The comment period closed on August 10, 2020. The Departments received a total of 5,044 submissions. While some of the comments expressed general support for the proposed rule or expressed a mixed opinion of the rule, the majority of commenters opposed the rule. Of the 5,044 total submissions, 1,417 were unique, nonduplicative submissions.

Overall, and as discussed in more detail below, the Departments generally decline to adopt the recommendations of comments that misstate the NPRM, offer broad and dire hypothetical or speculative effects without any support, are contrary to facts or law or otherwise untethered to a reasoned basis, or lack an understanding of relevant law and procedures regarding the overall immigration system.

B. Comments Expressing General Support for the Proposed Rule

Comment:

At least two organizations and other individual commenters expressed general support for the rule. Commenters who supported the rule considered the health and safety of American citizens as paramount and agreed that public health concerns should be a consideration in evaluating dangers to the national security and considering asylum applications. These commenters supported protecting Americans from the spread of communicable diseases and urged the U.S. government to prevent the healthcare system from becoming overburdened by aliens seeking medical care in the United States.

One commenter noted an increase in COVID-19 cases at border crossings and considered aliens infected with COVID-19 as a threat to Americans' health and a financial burden to the country. Another commenter expressed support for the rule, stating that it was unfair for American taxpayers to pay for the healthcare of aliens.

Some commenters stated that the rule protected U.S. citizens from individuals who abuse the law and take advantage of the United States' generosity and asylum system.

Response:

The Departments note and appreciate these commenters' support for the rule.

C. Comments Expressing General Opposition for the Proposed Rule

Comment:

At least 3,570 commenters, including 2,635 submissions associated with form letter campaigns, expressed general disagreement with the proposed rule. Many commenters characterized the rule as racist, unfair, or otherwise morally wrong. Moreover, some commenters interpreted the rule as discriminatory against black, brown, indigenous persons, and immigrants. Additionally, commenters characterized the rule as an immigration or asylum ban and expressed concerns that the rule would make immigration to the United States more difficult or eliminate the availability of asylum and

withholding of removal in the United States. Some commenters stated that asylum-seekers do not pose a security or safety threat to the United States on the basis of having traveled through other countries.

Many commenters stated that the rule conflicts with American values and the country's deeply rooted policy of welcoming immigrants and refugees, and they asserted that its implementation would damage the United States' standing and reputation in the world. Commenters believed that the United States should welcome asylum-seekers, and that immigration benefits the United States both economically and culturally. Some commenters believed the rule unlawfully infringes on aliens' rights to asylum in the United States.

Many commenters also generally asserted that the rule provides inadequate policy justification or legal analysis, which commenters asserted is evidence that it was inappropriately motivated by the Administration's personal animus against immigrants. Some commenters also rejected the public health rationale, claiming that alternative measures could be taken to protect the American public, and that the rule would do little to mitigate the spread of disease. Additionally, commenters believed that it is unreasonable for the Departments to make decisions regarding public health.

Multiple commenters wrote that the rule would be discriminatory. These commenters claimed the rule would generally contravene international laws against discrimination, including Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),

the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the United States' obligations under the 1951 Convention relating to the Status of Refugees (“Refugee Convention”)

and the 1967 Protocol relating to the Status of Refugees (“Refugee Protocol”),

and Article 7 of the International Covenant on Civil and Political Rights. Some commenters claimed that the rule specifically discriminates on the basis of national origin because applicants could be barred from asylum eligibility on the basis of the countries through which they have travelled.

CAT, art. 3(1), December 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 84.

July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.

Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268. Article 33.1 of the Refugee Convention states that “[n]o Contracting State shall expel or return (`refouler') a refugee in any manner whatsoever to the frontiers or territories

where his life or freedom would be threatened

on account of his race, religion, nationality, membership or a particular social group or political opinion.” 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176 (emphasis added). In 1968, the United States acceded to the Refugee Protocol, which bound parties to comply with the substantive provisions of Articles 2 through 34 of the Convention with respect to refugees.

See I.N.S.

Cardoza-Fonseca,

480 U.S. 421, 429 (1987).

Some commenters said the rule violates guidance provided by the United Nations High Commissioner for Refugees (“UNHCR”) because it denies asylum in “blanket terms” based on consideration of the prevalence of a disease in the countries through which asylum seekers have travelled and because the standard of evidence for triggering the bar is low.

Response:

To provide an overview of the Departments' response to these comments, the Departments emphatically disagree with contentions that the rule is immoral, motivated by racial animus, or promulgated with discriminatory intent. This rulemaking applies equally to all asylum seekers. The demographics of asylum seekers are as vast and varied as the number of countries around the globe and the Departments did not promulgate this rule to impact any particular race, religion, nationality, or category of aliens who may seek asylum.

The Departments also strongly disagree that this rule illegally infringes on the right to seek asylum. Unlike statutory withholding of removal and protections under the regulations issued pursuant to the legislation implementing Article 3 of CAT (“CAT regulations”), asylum is a discretionary benefit. No one has the right to be granted asylum in the United States and this rule does not alter an alien's ability to seek asylum through the statutorily-prescribed channels, including credible fear interviews for aliens in expedited removal proceedings. Additionally, aliens subject to the bars imposed by this rule on asylum and withholding of removal may still receive protection against removal if they establish they are eligible for deferral of removal under the CAT regulations.

The United States continues to fulfill its international commitments as implemented by domestic law. This rule merely reflects the need to protect the American public during times of extraordinary threats to the public health from pandemic diseases, as permitted by those laws.

The Departments have considered and rejected alternatives to mitigate the spread of communicable disease within U.S. Customs and Border Protection (“CBP”) facilities at the border. Although CBP has policies and procedures in place to handle communicable diseases, CBP is not equipped to provide medical support sufficient to meet the unique and specialized challenges posed by particularly infectious or highly contagious illnesses or diseases brought into CBP facilities. Of the 136 CBP facilities along the land and coastal borders, only 46 facilities, all located on the southern land border with Mexico, have contracted medical support on location. Even that support is not currently designed to diagnose, treat, and manage certain infectious or highly contagious illnesses or diseases—particularly novel diseases. Moreover, many CBP facilities, particularly along the southern land border, are located in remote locations distant from hospitals and other medical care and supplies. In short, if a highly contagious illness or disease were to be transmitted within a CBP facility, CBP operations could face significant disruption.

As the Departments explain below, the U.S. government is not bound by UNHCR guidance. And the Departments disagree with the premise that the rule's standards for triggering the bars to eligibility for asylum and withholding of removal are inadequate. The Departments proposed the rule to clarify that authorities provided by Congress can be used to mitigate harms arising from the spread of communicable disease to DHS officers on the border, aliens in DHS custody, and the general public, as well as significant operational and resource strains associated with public health procedures and protocol the Departments must implement, and in the case of COVID-19, are implementing, to mitigate the spread of communicable disease. Additionally, the rule requires that the application of the security bars to asylum and withholding of removal be tailored to the specific threat posed by the relevant public health emergency.

D. Basis for the Rule

1. Legal Authority

Several commenters generally argued that the proposed rule is contrary to international or domestic law, including the Refugee Convention and Refugee Protocol, CAT, and the INA, and is contrary to Congressional intent in enacting these laws and ratifying these treaties to provide protection to those fleeing persecution or torture.

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

Comment:

Commenters argued that the proposed rule ignores or contradicts Congressional intent by not acknowledging the distinction between national security and economic concerns in AEDPA, citing legislative history and sections 413 and 421 of the legislation, which incorporated the terrorism-related removal grounds at INA 212(a)(3)(B)(i) and 237(a)(4)(B) as mandatory bars to eligibility for asylum and withholding of removal. The commenters argued that Congress intended for these provisions to limit the scope of danger to the security of the United States bars to those aliens who have engaged in violent acts or other terrorism-related activity, in marked contrast to the type of threat posed by a communicable disease.

Response:

The Departments disagree with the commenters' analysis of sections 413 and 421 of AEDPA. As discussed in the NPRM, with respect to aliens whom there are reasonable grounds for regarding or believing are a danger to the security of the United States and thus ineligible for asylum and withholding of removal, the scope of the term extends well beyond terrorism considerations, and national defense considerations as well. The Attorney General has previously determined that “danger to the security of the United States” in the context of the bar to eligibility for withholding of removal encompasses considerations of defense, foreign relations, and the economy, finding that:

The INA defines “national security” [in the context of the designation process for foreign terrorist organizations] to mean “the national defense, foreign relations, or economic interests of the United States.” Section 219(c)(2) of the Act, 8 U.S.C. 1189(c)(2) (2000). Read as a whole, therefore, the phrase “danger to the security of the United States” is best understood to mean a risk to the Nation's defense, foreign relations, or economic interests.

Matter of A-H-,

23 I&N Dec. 774, 788 (AG 2005).

The INA's definition of “national security” referred to by the Attorney General provides additional evidence that the term—along with the term “danger to the security of the United States”—should be read to encompass concerns beyond those concerning national defense and terrorism. In fact, the definition was enacted in 1996 as section 401(a) of title IV of AEDPA and was added as enacted by the House-Senate Conference Committee.

The proposed legislation as originally passed by the Senate defined “national security” to mean “the national defense and foreign relations of the United States.”

That version of the bill may have considered economic concerns as separate from national security concerns. For example, it provided that in designating a foreign terrorist organization, the Secretary of State would have had to find that “the organization's terrorism activities threaten the security of United States citizens, national security, foreign policy, or the economy of the United States”—listing ”national security” and “the economy” as two independent considerations.

In addition, the section included a finding that also differentiated between national security concerns and those related to foreign policy and the economy. Congress found that:

H.R. Rep. No. 104-518, at 38 (1996) (Conf. Rep.).

142 Cong. Rec. H2268-03, at H2276 (Mar. 14, 1996) (S. 735, title VI, 401(a)).

Section 401(a) of title IV of S. 735 (as passed the Senate on June 7, 1995), 141 Cong. Rec. S7864 (July 7, 1995).

(B) [T]he Nation's security interests are gravely affected by the terrorist attacks carried out overseas against United States Government facilities and officials, and against American citizens present in foreign countries;

(C) United States foreign policy and economic interests are profoundly affected by terrorist acts overseas directed against foreign governments and their people . . . .

Id.

But Congress then seemingly abandoned this bifurcation between security and the economy. First, the Conference Report merged economic considerations into the definition of national security. Therefore, to the extent one accepts legislative history as a relevant consideration when interpreting the meaning of statutory terms, the change in phrasing in the Conference Report suggests a conscious decision that economic considerations are subsumed within a general reference to national security. Second, the explicit reference to economic considerations in the earlier draft of the legislation, when discussing the threats posed by terroristic activities, also implies a connection between national security and economic concerns—suggesting that considerations related to security in this context are quite broad. Finally, the definition in AEDPA operated in the context of the designation of foreign terrorist organizations. When national security is considered in a much broader context beyond the risk of terrorism, as is the case in this rule, it makes even greater sense for it to encompass economic concerns (and, consequently, public health concerns of such magnitude that they become economic concerns). A pandemic can cause immense economic damage, in addition to the human toll of the illness. Thus, the entry of aliens who may carry communicable diseases to our country or facilitate the spread of such disease within the interior of the country could pose a danger to U.S. security well within the scope of the statutory bars to eligibility for asylum and withholding of removal. The entry of such aliens could also pose a danger to national security by threatening DHS's ability to secure our border and facilitate lawful trade and commerce.

Finally, while aliens who are described in the terrorism-related removal grounds fall under the “danger to security” bars to asylum and withholding, there is nothing in the language of those sections limiting the application of those bars to terrorism grounds. In fact, terrorism-related activity is a separate statutory bar to asylum eligibility from the danger to the security of the United States bar. And the INA specifies that an alien engaging in such activity “shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States,” INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B), thus indicating such an alien represents only a subset of the larger category of aliens for whom there are reasonable grounds to believe are a danger to the security of the United States.

The Departments are not making changes to the final rule in response to these comments.

Refugee Convention, Refugee Protocol, UNHCR Guidance and Statements, the Universal Declaration of Human Rights, and the International Health Regulations

Comment:

Several commenters claimed that the NPRM is inconsistent with U.S. obligations under the Refugee Convention and the Refugee Protocol, including the principal of nonrefoulement, and that those obligations have been implemented into domestic U.S. law through the Refugee Act of 1980. They argued that domestic statutes must be interpreted consistently with international law where possible, and cite sources relating to the U.S. role in negotiation of the Refugee Convention and in the ratification of the Refugee Protocol evincing the intent of the U.S. not to exclude refugees from protection for reasons of health. Commenters argued that the danger to the security of the United States bars to asylum and withholding of removal derive from Articles 32 and 33(2) of the

Refugee Convention. They claimed that these provisions regarding national security do not encompass health concerns. Several commenters also pointed out that withholding of removal is not a discretionary benefit but instead a mandatory protection under Article 33 of the Refugee Convention as codified at section 241(b)(3) of the INA. Two commenters cited UNHCR's guidance and academic papers in arguing that the danger to the security of the United States bars must be based on individualized determinations. Another commenter specifically argued that the “reasonable person” standard proposed by the rule, and the possibility that a person could be expelled for passing through a country where COVID-19 was prevalent without proof of that person's infection (via testing), violates UNHCR guidance against refoulement without evidence of a health risk. An individual also commented that such a denial would violate Article 14 of the Universal Declaration of Human Rights, which guarantees the right to seek and enjoy asylum from persecution. A legal services provider cited to UNHCR guidance,

as well as U.S. correspondence during the formulation of the Refugee Protocol, in arguing the invalidity of security bars applying to an entire class of asylum seekers. Another commenter cited to the 2006 UNHCR guidance for the propositions that (1) the dangers to the security of the United States bars must be restrictively interpreted; (2) the danger posed to national security must be sufficient to justify refoulement; and (3) refoulement must be proportionate to the danger presented.

The commenter then concluded that the proposed rule would fail under all three considerations. Another commenter stated that not considering an asylum seeker's intent with respect to conduct that could give rise to a security bar would be contrary to the humanitarian social purpose of the Refugee Act and the Refugee Convention. Multiple commenters also cited to 2020 UNHCR guidance,

as prohibiting the closure of borders for public health reasons without preserving asylum seekers' rights under international law, noting that the guidance recommended relying on the screening and quarantine of asylum seekers, stated that refoulement could not be justified on a public health basis and stated that a total lock-out of asylum seekers would violate rules of proportionality.

UNHCR,

Advisory Opinion from the UNHCR on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees

5 (2006).

See, e.g.,

Message from the President of the United States, Transmitting the Protocol Relating to the Status of Refugees, at VIII (1968); Dep't of Health, Education, and Welfare (“HEW”),

Memorandum for Ambassador Graham Martin re: Protocol Relating to the Status of Refugees

(July 22, 1968); HEW,

Letter to Ambassador Graham Martin re: Protocol Relating to the Status of Refugees

(July 16, 1968).

UNHCR, Key Legal Considerations on Access to Territory for Persons in Need of International Protection in the Context of the COVID-19 Response (Mar. 2020).

Several commenters stated that the rule breaches international health regulations that bind the United States and require it to exercise health powers with full respect for human rights. A legal services provider commented that the international health regulations provide for the humane treatment of migrants during a screening or quarantine period.

Response:

The United States has undertaken certain obligations under the Refugee Protocol, which incorporates Articles 2-34 of the Refugee Convention. Article 33 of the Refugee Convention, as understood in U.S. law, generally precludes state parties from removing individuals to any country where their lives or freedom would be threatened on account of their race, religion, nationality, political opinion, or membership in a particular social group. Congress made the decision to implement its non-refoulement obligations under the Refugee Protocol through the protection of statutory withholding of removal at section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and in the Foreign Affairs Reform and Restructuring Act (“FARRA”), to implement its CAT non-refoulement obligations through regulations, which resulted in withholding and deferral of removal protections under the CAT regulations.

It was Congress's deliberate decision to establish a requirement that an alien show it is more likely than not that his or her “life or freedom would be threatened” for statutory withholding of removal, the standard designed to meet U.S. obligations under the Refugee Protocol. The Supreme Court stated in

INS

Stevic

that “it seems clear that Congress understood that refugee status alone did not require [statutory] withholding of deportation, but rather, the alien had to satisfy the [more likely than not] standard” under statutory withholding of removal.

Public Law 105-277, div. G, subdiv. B, title XXII, sec. 2242 (b), 112 Stat. 2681-822 (1998), codified at 8 U.S.C. 1231 note; 8 CFR 208.16(b)-(c), 208.17, 208.18; 1208.16(b)-(c), 1208.17, 1208.18.

467 U.S. 407, 428 (1984) (citation omitted).

See Cardoza-Fonseca,

480 U.S. at 440-41.

An alien who can demonstrate that he or she would more likely than not face persecution on account of a protected ground or torture is entitled to withholding of removal or, if more likely than not to be tortured but subject to a mandatory bar to eligibility for withholding, is entitled to CAT deferral of removal. As the Tenth Circuit has stated, “the Refugee Convention's non-refoulement principle—which prohibits the deportation of aliens to countries where the alien will experience persecution—is given full effect by the Attorney General's withholding-only rule”.

And the Ninth Circuit explained that Article 3 of the CAT was implemented in the United States by the FARRA and its implementing regulations.

The Departments also note that neither of these treaties is self-executing and therefore they are not directly enforceable in the U.S. legal context except to the extent that they have been implemented by domestic legislation.

R-S-C

Sessions,

869 F.3d 1176, 1188 & n.11 (10th Cir. 2017);

See also Cardoza-Fonseca,

480 U.S. at 441,

Grace

Sessions,

856 F.3d 27, 40 (1st Cir. 2017) (“[W]ithholding of removal has long been understood to be a mandatory protection that must be given to certain qualifying aliens, while asylum has never been so understood”).

The Supreme Court has ruled that while UNHCR's interpretation of (or recommendations regarding) the Refugee Convention and Refugee Protocol, such as set forth in the UNHCR Handbook, “may be a useful interpretative aid,”

it is not binding on the U.S. government, recognizing that “[i]ndeed, the Handbook itself disclaims such force, explaining that `the determination of refugee status under the [Refugee] Convention and the [Refugee] Protocol . . . is incumbent upon the Contracting State in whose territory the refugee finds himself.' ”

INS

Aguirre-Aguirre,

526 U.S. 415, 427 (1999).

Id.

The Universal Declaration of Human Rights is a non-binding instrument, not an international agreement; thus, it does not impose obligations on the United States.

Moreover, although it proclaims the right of “everyone” to “seek and to enjoy” asylum, it does not purport to state specific standards for establishing asylum eligibility, and it certainly cannot be read to impose an obligation on the United States to grant asylum to “everyone.”

Sosa

Alvarez-Machain,

542 U.S. 692, 728, 734-35 (2004) (citing John P. Humphrey,

The U.N. Charter and the Universal Declaration of Human Rights,

in The International Protection of Human Rights 39, 50 (Evan Luard ed., 1967) (quoting Eleanor Roosevelt as stating that the Declaration is “ `a statement of principles . . . setting up a common standard of achievement for all peoples and all nations' and `not a treaty or international agreement . . . impos[ing] legal obligations.' ”)).

Art. 14(1).

The Departments do not agree with the commenters' assertions that the rule is inconsistent with the International Health Regulations. This rule implements the immigration authorities of the Departments with respect to eligibility for asylum and withholding of removal, rather than any public health authorities. Specifically, the rule clarifies the Departments' understanding of the bars to eligibility for asylum and withholding of removal based on their being reasonable grounds for regarding or believing an alien to be a danger to the security of the United States. The International Health Regulations do not purport to address or govern asylum eligibility, and the regulations specifically exclude “security measures” from the definition of “health measures.”

Accordingly, the Departments believe the rule is sufficiently tailored to permit the U.S. government to implement recommendations stemming from the International Health Regulations in concert with the application of the danger to security of the United States bars to asylum and withholding of removal in contexts where the Secretary and Attorney General determine, in consultation with the Secretary of Health and Human Services, per the framework established by this rule, such recommendations are insufficient to ensure the security of the United States. Likewise, the Departments disagree that the International Health Regulations otherwise bind the Departments from employing this statutory authority.

World Health Organization, International Health Regulations, Art. 1 (3d ed. 2005).

The Departments are not making changes to the final rule in response to these comments.

Unaccompanied Alien Children and the Trafficking Victims Protection Reauthorization Act of 2008

Comment:

Several commenters expressed concern about the proposal's impact on unaccompanied alien children (UAC). Some commenters noted protections provided for UAC by the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which they argue demonstrates a general intent by Congress to protect UAC. A legal services provider described details of the TVPRA's provisions requiring UAC whom DHS seeks to remove to be placed into removal proceedings under section 240 of the INA, 8 U.S.C. 1229a (“section 240 proceedings”), rather than into expedited removal proceedings, and mandating that asylum officers within DHS exercise initial jurisdiction over asylum applications filed by UAC. The commenter wrote that the proposed rule could undermine Congress' intent and deprive UAC of access to benefits such as Special Immigrant Juvenile classification. Another commenter argued that turning away children at the border, even if they are assessed to have been exposed to a covered disease, would be in violation of TVPRA, adding that they must be transferred to Office of Refugee Resettlement custody and offered the ability to seek protection from removal. An advocacy group commented that the proposal could deny statutorily-protected due process rights to UAC, writing that the possibility of a UAC being barred from asylum on the basis of passing through a country, despite being exempted by Congress from a bar “related to the availability of protection” in the same country, would be absurd. It stated that other immigration law provisions related to public health or medical examination do not bar eligibility for humanitarian or TVPRA protections. It further argued that while it is true that the INA exempts UAC from expedited removal proceedings, and thus that they cannot be expelled from the United States before they have the opportunity to make their case, the proposed rule would still remove UAC's due process protections and subject them to refoulement. Commenters argued that the NPRM is contrary to the best interests of children generally, contravening State child welfare laws and the Convention on the Rights of the Child. The campaign argued that the proposal would violate UAC's right to safety by returning them to abusers, persecutors, and traffickers for reasons outside of their control.

Response:

It is certainly true that not all of the statutory bars to the right to apply for asylum are applicable to UAC (including INA section 208(a)(2)(A) regarding aliens who can be removed to a safe third country pursuant to a bilateral or multilateral agreement and INA section 208(a)(2)(B) regarding aliens who file asylum applications more than one year of their arrival). That said, nothing in this rule negates the statutory rights and protections of UAC, including under the TVPRA. For instance, UAC retain the right to apply for asylum notwithstanding section 208(a)(2)(A)-(B) of the INA. INA 208(a)(2)(E). Notably, however, Congress did not exempt UAC from any of the statutory bars to asylum eligibility. As a result, UAC seeking asylum, like all other asylum seekers, are ineligible for asylum if they are subject to any of the mandatory bars at section 208(b)(2)(A)(i)-(vi) of the Act, 8 U.S.C. 1158(b)(2)(A)(i)-(vi)—including the danger to the security of the United States bar—and if subject to any additional bars implemented pursuant to the Attorney General's and the

Secretary's authority to establish additional limitations on asylum eligibility by regulation. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). Unfortunately, UAC are not immune from pandemic disease, and those bringing such a disease to the United States would have the same impact on the security of the United States as any other aliens seeking asylum.

The rule also does not curtail any other rights or protections to which UAC are entitled under statute. As commenters note, UAC from contiguous territories may withdraw their applications for admission and voluntarily return if it is determined that they are not at risk of trafficking or persecution and that they are capable of making an independent decision to withdraw. 8 U.S.C. 1232(a)(2). All federal agencies must transfer UAC to HHS custody within 72 hours of determining their UAC status (absent exigent circumstances). 8 U.S.C. 1232(b)(3). UAC from non-contiguous countries whom DHS seeks to remove must be placed in section 240 proceedings, 8 U.S.C. 1232(a)(5)(D), where they can pursue asylum or any other relief or protection for which they may be eligible and where immigration judges may make some modifications to ordinary courtroom proceedings to account for their status.

If UAC do apply for asylum, including after they have been placed into section 240 proceedings, USCIS has initial jurisdiction over their claims. INA 208(b)(3)(C). As UAC are not amenable to expedited removal, they will not be impacted by the reforms to the expedited removal process contained in this rule.

EOIR,

Operating Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children

(Dec. 20, 2017),

https://www.justice.gov/eoir/file/oppm17-03/download.

Thus, the Departments are not making changes to the final rule in response to these comments.

Public Health Service Act of 1944

Comment:

A legal services provider argued that the proposed rule is not supported by the Public Health Service Act of 1944 (“PHSA”). The commenter wrote that, as an initial matter, the Centers for Disease Control and Prevention's reliance on that statute in ordering the expulsion of certain aliens is improper. The commenter cited articles in arguing that PHSA is a quarantine law and not an immigration law, and thus that it can only be used for the suspension of entry without regard for immigration status rather than as an “extrajudicial deportation system.”

Response:

The authority for this rule is contained in title 8 of the U.S. Code's INA, not title 42's PHSA. The rule is intended to clarify and operationalize the Departments' understanding of INA 208(b)(2)(A)(iv) and 241(b)(3)(B)(iv). Accordingly, arguments regarding the propriety of the use of the PHSA for expulsions is outside the context of this rule. The Departments are not making changes to the final rule in response to these comments.

The Departments would also note that when Congress created the INA a mere eight years after the enactment of the PHSA, it explicitly considered and affirmed the use of the INA to protect the nation from pandemic diseases (though in the context of a different provision, as asylum and withholding of removal in their current forms would not exist for many years). On April 25, 1952, during House floor consideration of H.R. 5678, to be enacted as the (McCarran-Walter) Immigration Act of 1952, the bill's author, Francis Walter, entered into a debate regarding Abraham Multer's amendment (which was decisively defeated) to limit the bill's grant to the President of the power to bar the entry of aliens (now found at INA section 212(f)). Mr. Multer stated that:

As the bill is presented, we find a provision . . . which provides that at any time the President finds the entry of any aliens or class of aliens would be detrimental to the interests of the United States he may by proclamation suspend the entry of those aliens. The first part of my amendment simply provides that instead of being able to do that at any time, the President may make a proclamation and effectuate such a suspension only in the event of a national emergency, or a state of war.

98 Cong. Rec. 4423 (April 25, 1952).

Mr. Walter responded that:

I rise in opposition to the amendment . . . . [T]his language “whenever the President finds that the entry of any aliens or class of aliens in the United States would be detrimental to the interests of the United States” is absolutely essential because when there is an outbreak of an epidemic in some country, whence these people are coming, it is impossible for Congress to act. People might conceivably in large numbers come to the United States and bring all sorts of communicable diseases with them. . . . In the judgment of the committee, it is advisable at such times to permit the President to say that for a certain time we are not going to aggravate that situation.

Id.

Other Comments Concerning Legal Authority

Comment:

One commenter stated that “the danger of persecution should generally outweigh all but the most egregious of adverse factors” and that the proposal fails to operate by this principle. Another cited 2011 U.S. Immigration and Customs Enforcement (“ICE”) guidance and emphasized that that guidance interpreted the public health removal priority narrowly and only when “articulable” public safety issues were present. The commenter also cited a 2014 DHS memorandum as providing that immigrant health concerns should result in the delay, rather than expedition, of removal proceedings. One commenter stated that, under the INA, asylum seekers cannot be penalized where their country is unable or unwilling to protect them from persecution. The commenter argued that the proposed rule would impute the failure of a country to contain an outbreak to an individual and thus contravene this principle.

Response:

The principle that the danger of persecution should generally outweigh all but the most egregious of adverse factors derives from the Board of Immigration Appeals decision in

Matter of Pula,

which addressed the exercise of discretion to grant or deny asylum to an applicant who had already established eligibility for asylum. This final rule, however, addresses a quite distinct question by clarifying the Departments' understanding of the mandatory bars to eligibility for asylum (and withholding of removal), not an asylum officer's or immigration judge's exercise of discretion once an applicant establishes such eligibility. If there are reasonable grounds for regarding or believing an applicant to be a danger to the security of the United States, he or she is statutorily ineligible for asylum and withholding of removal, and the adjudicator would not have the discretion to grant either form of protection.

19 I&N Dec. 467 (BIA 1987).

Moreover, the Supreme Court has determined that in assessing the “serious nonpolitical crime” bar to eligibility for withholding of removal, adjudicators need not weigh the risk of persecution in determining the applicability of that bar, finding that “[a]s a matter of plain language, it is not obvious that an already-completed crime is somehow rendered less serious by considering the further circumstance that the alien may be subject to persecution if returned to his home country.”

INS

Aguirre-Aguirre,

526 U.S. at 426.

The ICE guidance concerning removal priorities and the DHS memorandum cited by the commenter are unrelated to eligibility for asylum or withholding of removal or the interpretation of the

statutory bars for aliens for whom there are reasonable grounds for regarding or believing are dangers to the security of the United States. Finally, the rule seeks to mitigate the risk of a serious communicable disease being brought to the United States, or being further spread within the country, by clarifying that such public health threats must be considered when determining whether there are reasonable grounds for regarding or believing an alien to be a danger to the security of the United States. The rule does not seek to penalize asylum seekers for the action or inaction of another country, but is rather intended to safeguard the public health and the security of the United States. Accordingly, the Departments are not making changes to the final rule in response to these comments.

2. Substantive Comments on Need/Rationale for the Rule

Comment:

Many commenters provided input on the rationale for the proposed rule or other feedback on whether the rule is necessary to serve its stated goals. Several commenters claimed that its public health claims are specious. Many commenters claimed that the rule would block asylum eligibility on the pretext of a pandemic response, and that the rule improperly assigns a public health risk to asylum-seekers.

Commenters also expressed opposition on the basis that the rule contains no objective standard for applying the proposed health measures. Some suggested that the rule should take into account the availability of effective treatments in applying the bars. One criticized the rule for not taking into account whether a disease is more prevalent in the United States than in the asylum seeker's country of origin and that this oversight undermines the rule's rationale. Another requested information about the empirical basis for the rule, including the number of asylum seekers who have brought contagious diseases into the United States, the source of that data, the effects of those diseases on the general population, and how such a disease could spread in the process of detention and deportation, and argued that limiting asylum can only be justified by compelling answers to these inquiries. Likewise, a few individual commenters stated that the Departments must prove that asylum seekers and other immigrants embody a substantial and direct threat to U.S. health and safety during a pandemic.

Multiple commenters said that the Departments' justification for the rule is at odds with the administration's messaging regarding the severity of the COVID-19 pandemic within the United States.

Some commenters mischaracterized the rule as a travel ban rather than a clarification as to bars to asylum and withholding of removal eligibility. These commenters stated that the rationale for the rule is flawed because it limits nonessential travel across the southern border and denies entry to asylum seekers arriving by land, but grants broad exceptions for travel by U.S. citizens, lawful permanent residents, and people engaged in trade or education. The commenters believe that other individuals traveling across the border are just as likely to transmit COVID-19, and therefore questioned the Departments' logic in creating the danger to the security of the United States bars.

Many commenters claimed that the public health objectives of the proposed rule could be achieved through alternative means without affecting aliens' eligibility to receive asylum or withholding of removal. These commenters stated that the United States has existing procedures to address communicable diseases without targeting asylum eligibility. A few commenters argued that COVID-19 can be managed through sensible policies, including implementing quarantine policies, social distancing, testing, education and trainings, medical treatment, use of personal protective equipment, and contact tracing, citing the advice of public health experts. Similarly, a commenter suggested that additional legal representation and medical services at the border should be considered instead of this rule.

Many commenters suggested eliminating or altering detention policies, or improving conditions of detention, instead of implementing the rule. Some argued that the Departments' rationale that asylum seekers held in congregate settings pose a risk to staff and other detainees is pretextual because the Federal Government has the discretion and authority to release asylum seekers and unaccompanied minors from custody. These commenters proposed reducing the population of aliens in detention centers by releasing aliens on bond and encouraging them to stay with friends and family (some citing data stating that 92 percent of asylum seekers have friends and family in the United States with whom they could shelter) in lieu of the proposed rule. Commenters also claimed that communicable diseases are often designated as public health threats because they require timely diagnosis, treatment, and contact tracing, but the rule does not include provisions for an appropriate public health response (such as testing, treatment, and contact tracing where appropriate). Other commenters argued the proposed rule is pretextual because UAC are currently being released by ICE only after they test negative for COVID-19, citing a recent news publication.

Many commenters compared the proposed rule to other countries' responses to the COVID-19 pandemic, stating that other countries have adopted immigration policies that protect against the pandemic without eliminating eligibility for asylum protection. Several commenters said these countries prove that asylum seekers can be safely processed during a pandemic by adopting enhanced health measures and quarantine requirements. Another commenter argued that the proposal cannot be justified by a lack of COVID-19 testing capacity in the United States.

Many commenters stated that COVID-19 is not a reasonable basis for the proposed restrictions on asylum because the United States has one of the highest per capita infection and mortality rates for COVID-19, belying the proposed rule's claim to protect Americans from COVID-19. Commenters cited data showing that some countries, including Canada and Mexico, have fewer COVID-19 cases than the United States, arguing that the rule is unnecessary because United States poses the greater threat of spreading COVID-19. Several commenters said that the United States' COVID-19 high infection rate makes removing asylum seekers to other countries a significant public health threat to other countries and to asylum seekers themselves.

Some commenters added that the diseases listed in the rule do not pose a risk to the general public or are not subject to U.S. quarantine laws. Other commenters argued that regulations to control the spread of disease should not apply to treatable conditions, especially the ones that do not pose a significant health risk to the public.

A commenter claimed that the fact that the rule creates a judicial review process is evidence that the proposed rule uses public health as a pretext to deny asylum and withholding of removal. This commenter argued that because asylum seekers often remain in detention for longer than the prescribed 7 to 10 days for judicial review, aliens would remain at risk to contract or spread disease during this prolonged time period. The commenter concluded the proposed rule is an ineffective protection against the spread of disease.

Another commenter stated that the proposed rule cannot be justified by the length of the adjudication process for asylum seekers. The organization asserted that the DOJ's own policies contribute to the immigration court backlog, including increasing the number of respondents in removal proceedings and changing policies for asylum seekers who are eligible for bond. The commenter concluded that the Departments should not use the consequences of their policies as the basis for banning the same asylum seekers from humanitarian relief.

Response:

The Departments disagree that the rule lacks an objective basis for applying the danger to the security of the United States bars to asylum and withholding of removal. This rule specifically provides that aliens whose entry poses a public health danger to the United States constitute a “danger to the security of the United States” and thus are ineligible for asylum or withholding of removal protections in the United States under INA 208 and 241, 8 U.S.C. 1158 and 1231, and 8 CFR 208.16 and 1208.16. The bars apply to aliens whose entry poses a heightened risk of bringing into the United States or further spreading within our country serious contagious diseases, posing a danger to the security of the United States, during times of declared public health emergencies in the United States or because of conditions in their country of origin or point of embarkation to the United States. More specifically, the bars apply in certain delineated instances after a communicable disease has triggered an ongoing declaration of a public health emergency under Federal law. They also apply after the Secretary and the Attorney General, in consultation with the Secretary of Health and Human Services, have jointly determined that the physical presence in the United States of aliens who are coming from areas of the world where a communicable disease of public health significance is or was prevalent or epidemic would cause a danger to the public health in the United States, and they consequently jointly designated the relevant areas and the period of time or circumstances under which it is necessary for the public health that aliens or classes of aliens who have come from those areas (and are still within the number of days equivalent to the longest known incubation and contagion period for the disease) be regarded as a danger to the security of the United States. The Departments note that many comments referred to factors or facts specific to the ongoing COVID-19 pandemic, but that the rule is intended to address future pandemics and is not limited to current circumstances.

These factors are consistent with the Attorney General's determination that “danger to the security of the United States” in the context of the bar to eligibility for withholding of removal encompasses considerations of defense, foreign relations, and the economy.

In that decision, the Attorney General made clear that the “nontrivial degree of risk” standard is satisfied where there is a reasonable belief that an alien poses a danger.

Yusupov

Attorney General,

the Third Circuit determined that the Attorney General's understanding that the bar to eligibility for statutory withholding of removal “applied to any `nontrivial level of danger' or `nontrivial degree of risk' to U.S. security” was a reasonable interpretation of the INA, and the court deferred to the Attorney General in upholding that statutory interpretation. The court explained that the eligibility bar “does not easily accord acceptable gradations, as almost any `danger' to U.S. security is serious.”

It concluded that “Congress did not announce a clear intent that the danger to U.S. security be `serious' because such a modifier likely would be redundant. . . . [I]t would be illogical for us to hold that Congress clearly intended for an alien to be non-removable if he poses only a moderate danger to national security.”

As discussed in detail in the NPRM and above, epidemics and pandemics, such as the COVID-19 crisis, pose a danger to the United States.

Matter of A-H-,

23 I&N Dec. at 788.

Id.

518 F.3d 185 (3rd Cir. 2008) (as amended Mar. 27, 2008).

Id.

at 204.

Id.

The Departments disagree with commenters who stated that to be barred from eligibility asylum or withholding of removal under this rule, the Departments must prove that an alien poses a substantial and direct threat to the health and safety of the United States residents during a pandemic. As explained above, the Attorney General has clarified that the appropriate standard to apply is a “nontrivial degree of risk.” Pandemics such as COVID-19 can cause serious illness or death on a mass scale, and inflict serious, or even catastrophic, damage to the country's economy, and thus, to the security of the United States.

Applying the danger to the security of the United States bars to eligibility for asylum and withholding of removal is necessary to reduce health and safety dangers to DHS personnel and to the public. On this, the Departments defer to the expertise of the CDC,

which has determined that the introduction into Border Patrol stations and POEs of those aliens traveling from Canada and Mexico who are usually held for “material lengths of time” in the congregate areas of these facilities “increases the serious danger of introducing COVID-19 to others in the facilities—including DHS personnel, U.S. citizens, U.S. nationals, and LPRs, and other aliens—and ultimately spreading COVID-19 into the interior of the United States.”

The CDC based its assessment on the fact that:

Courts routinely recognize the CDC's public health expertise.

See, e.g., Bragdon

Abbott,

524 U.S. 624, 650 (1998) (“the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority”);

In re Approval of Judicial Emergency Declared in Eastern District of California,

956 F.3d 1175, 1181 (9th Cir. 2020) (determining that it would not be safe to resume normal court operations until “the CDC lifts its guidance regarding travel-associated risks and congregate settings and physical distancing”); and

Hickox

Christie,

205 F. Supp. 3d 579, 598-99 (D.N.J. 2016) (relying on CDC recommendations to determine the legality of state-mandated quarantine in light of the risk of Ebola posed by persons entering the United States after treating Ebola patients).

Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right To Introduce and Prohibition of Introduction of Persons Into United States From Designated Foreign Countries or Places for Public Health Purposes, 85 FR 56424, 56433 (final rule) (September 11, 2020).

[T]here are structural and operational impediments to quarantining and isolating [such] aliens in CBP facilities that neither HHS/CDC nor CBP can overcome, especially given the large number of [such] aliens that move through the congregate areas of the facilities. Border Patrol stations and POEs were designed for short-term holding of individuals in congregate settings [and were] not designed and equipped with sufficient interior space or partitions to quarantine potentially infected persons, or isolate infected persons. They also are not equipped to provide on-site care to infected persons who present with severe disease.

Id.

CDC laid out the consequences of placing such aliens CBP facilities:

The public health risks . . . include transmission and spread of COVID-19 to CBP personnel, U.S. citizens, lawful permanent residents, and other persons in the POEs and Border Patrol stations; further transmission and spread of COVID-19 in the interior; and the increased strain that further transmission and spread of COVID-19 would put on the United States healthcare system and supply chain during the current public health emergency.

Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 85 FR 65806, 65807 (October 16, 2020) (notice).

The Departments have also considered the array of alternatives commenters argued the Departments could implement to reduce the risk of aliens spreading communicable disease in the United States. The Departments disagree that the rule is unnecessary because of the availability of the alternatives posed, which include quarantines, social distancing, testing, education and trainings, medical treatment, use of personal protective equipment, and contact tracing.

In the context of COVID-19, the CDC has already determined these alternatives to not be sufficient to adequately protect the public health. The CDC has determined that “quarantine, isolation, and conditional release are still not workable options on the scale that would be needed for protecting U.S. public health from the introduction of COVID-19”

and that “Federal Orders requiring the quarantine, isolation, or conditional release of persons arriving into the United States from foreign countries may be inadequate to protect public health from the serious danger of the introduction into the United States of a quarantinable communicable disease.”

Id.

at 56526.

As to quarantines, the CDC has concluded that:

Federal quarantine and isolation . . . where HHS/CDC funds and operates residential facilities with 24-hour wrap-around services for persons arriving into the United States from a foreign country may be scalable and effective for hundreds of persons, but not thousands of them. Even then, Federal quarantine and isolation require substantial resources and are not sustainable for extended periods of time.

Id.

A Federal quarantine and isolation of covered aliens would have likely required the procurement or construction and equipping of numerous permanent or temporary facilities across the Northern and Southern land borders, in close proximity to the POEs and Border Patrol stations. The facilities would have to accommodate a rotating population of covered aliens—including family units, single adults, and children with varying countries of origin, social customs, and criminal histories—for the duration of each covered alien's quarantine or isolation period. During that period, HHS/CDC and CBP would have to shelter, feed, and provide medical services to each covered alien onsite. The burden of undertaking such a joint public health and safety mission across thousands of miles of territory during a pandemic is impracticable. [T]o the knowledge of HHS/CDC, the largest Federal quarantine and isolation operation in modern U.S. history is the one that HHS/CDC and other agencies conducted in early 2020 [in response to COVID-19] for the approximately 3,200 persons who disembarked from cruise ships in U.S. ports or were repatriated from Asia. That operation would have been dwarfed by an ongoing quarantine and isolation mission for covered aliens. . . . HHS/CDC and CBP could not have . . . . quarantined or isolated a daily average population of 3,292 covered aliens from March 21, 2020 to the present. The relevant agencies simply lack the personnel and resources to operate such a large and complex Federal quarantine and isolation program, spread over thousands of miles of territory, and a period of many months, during a global pandemic. This is especially true when HHS/CDC and CBP must prioritize their finite resources for the benefit of the public health and safety, respectively, of the domestic population.

Id.

at 56433. The CDC noted that “the Federal government no longer operates Public Health Service hospitals capable of acting as dedicated quarantine and isolation facilities able to house hundreds of people for multiple weeks. The securing of sites was challenging because when the agencies identified suitable facilities, local officials sometimes objected to the use of the facilities.”

Id.

at 56430.

The Departments also disagree with suggestions that increased testing of aliens could serve as an adequate alternative to the rule. In many cases, it is not possible to know whether an individual is infected at the time of processing or apprehension. Where testing is available, the time frame required to obtain test results may both be operational unfeasible and expose DHS officers, other aliens, and domestic communities to possible infection while results are pending. The CDC concluded that:

HHS/CDC considered whether it could avert the serious danger of the introduction of COVID-19 into CBP facilities through COVID-19 testing. Specifically, HHS/CDC considered the asymptomatic transmission of COVID-19; the lack or limited availability of diagnostic testing for COVID-19; the time required to obtain diagnostic test results; the need to prioritize testing resources for the domestic population . . . . In any pandemic caused by a novel virus that spreads asymptomatically there will be a period when diagnostic testing is not widely available due to the time necessary to create, manufacture, distribute, administer, and receive the results of diagnostic tests. Even then, it may be appropriate to prioritize diagnostic testing for some populations over others, and diagnostic testing may produce at least some false negatives.

Id.

at 56433-34 n.70.

In congregate settings, travelers infected with a quarantinable communicable disease (whether asymptomatic or symptomatic) may spread the disease to other travelers or government personnel or private sector workers who may, in turn, spread disease to the domestic population. In such a scenario, the subsequent separation of the original, infected traveler would not mitigate the spread of disease through other individuals who interacted with the traveler in the congregate setting.

Id.

at 56426.

The Departments disagree with commenters' suggestions that public health interests would be better served if the Departments eliminated detention pending proceedings. The INA requires that all aliens placed into expedited removal proceedings are subject to mandatory detention from the commencement of proceedings until their credible fear interviews, INA 235(b)(1)(B)(iii)(IV), subject to mandatory detention if found not to have a credible fear,

id.,

and also subject to mandatory detention if found to have a credible fear “for further consideration of their application for asylum” in asylum-and-withholding-only proceedings. Such aliens can be released by paroling them pursuant to section 212(d)(5) of the INA or on bond.

As explained in the NPRM, once a non-detained alien is placed into such proceedings, it can be months or years before their cases are adjudicated, as immigration courts in EOIR have a backlog of more than 1,000,000 pending cases, at least 517,000 of which include an asylum application. Of those released, many simply abscond without pursuing their asylum claims. There were 595,430 fugitive aliens at the end of fiscal year 2019.

In 2003, DOJ's Inspector General issued a report that found that the former INS had successfully carried out removal orders with respect to only 13 percent of non-detained aliens who were subject to final removal orders—and was able to remove only three percent of non-detained aliens who had unsuccessfully

sought asylum.

Recent initiatives to track family unit cases revealed that close to 82 percent of completed cases have resulted in an in absentia order of removal. It has been reported that EOIR's immigration courts have higher failure to appear rates than any other state or federal courts in the country.

In fiscal year 2017, 44 percent of never detained aliens, 41 percent of released aliens, and 49 percent of unaccompanied alien minors (who have generally been released to sponsors, 8 U.S.C. 1232(c)(2)-(3)) who received removal orders received them in absentia for failing to appear.

Even putting aside the issue of absconders, releasing aliens with a communicable disease from detention merely transfers the risk from DHS officers and other detainees to the general public.

Matter of X-K-,

23 I&N Dec. 731, 736 (BIA 2005), the BIA concluded that arriving aliens at POEs found to have a credible fear and placed into section 240 proceedings were subject to mandatory detention, but those apprehended between POEs were eligible for bond. The Attorney General overruled

Matter of X-K-

Matter of M-S-,

27 I&N Dec. 509 (A.G. 2019), and determined that all aliens found to have a credible fear were subject to mandatory detention (and thus only releasable on parole). However, in

Padilla

ICE,

953 F.3d 1134, 1143 (9th Cir. 2020) (petition for cert. filed Aug. 24, 2020), the Ninth Circuit upheld a district court's grant of a nationwide preliminary injunction requiring, in part, that all aliens found to have a credible fear be eligible for a bond hearing and possible release (not through parole) on bond.

Enforcement and Removal Operations, ICE,

U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report

at 10. Alien fugitives are those who had failed to leave the United States based upon a final order of removal or who had failed to report to ICE after receiving notice to do so.

Id.

at 10 n.9.

Office of the Inspector General, Evaluation and Inspections Division, DOJ,

The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders

(I-2003-004) at i, ii (2003).

Mark Metcalf,

U.S. Immigration Courts & Aliens Who Disappear Before Trial,

2019 Center for Immigration Studies at 1, 7-8 n.1-2.

Planning, Analysis & Statistics Division, EOIR, DOJ,

Statistics Yearbook: Fiscal Year 2017,

at 33 (figure 25).

The Departments also reject the notion of stopping or reducing the enforcement of immigration laws as a means of reducing the strain on the nation's immigration system. The solution is not to ignore the rule of law but to find ways to promote compliance with the law and to increase the efficiency of the nation's immigration system.

As to simply allowing aliens to reside with friends and family pending their asylum-and-withholding-only proceedings, this would reduce the transmission of disease within detention centers themselves. However, as the CDC concluded, such a practice would merely transfer the risk from DHS officers and other detainees to the general public and could exacerbate community spread within the interior. The CDC has also found that:

[I]t is not reasonable to assume that all . . . aliens [entering the United States illegally or without proper documents, who would need to be placed in congregate setting,] can or will comply with conditional release orders or safely self-quarantine or self-isolate after introduction into the country. That has not been HHS/CDC's experience with foreign nationals arriving in the United States on commercial flights, which require valid travel documents and clearance of customs. Even some foreign nationals who produce valid travel documents, fly internationally, and clear customs do not comply with self-quarantine or self-isolation protocols, or provide contact information to HHS/CDC for use in public health monitoring and contract tracing investigations. . . . Persons who are unprepared to comply with U.S. legal processes and lack transportation and a permanent U.S. residence would likely encounter difficulties complying with conditional release orders or self-quarantine or self-isolation protocols. For such orders or protocols to be effective, persons who HHS/CDC temporarily apprehends and then conditionally releases with orders—or, alternatively, persons to whom HHS/CDC recommends self-quarantine or self-isolation—must be able to travel to suitable quarantine or isolation locations, and then quarantine or isolate for the time period prescribed or recommended by HHS/CDC. Many [aliens entering the United States illegally or without proper documents, who would need to be placed in congregate settings,] would have to overcome significant hurdles to meet those basic requirements. Moreover, implementation of conditional release orders for covered aliens would divert substantial HHS/CDC resources away from existing public health operations during the COVID-19 pandemic. . . .

To implement conditional release orders for covered aliens, HHS/CDC would have to open and operate new quarantine stations at numerous Border Patrol stations and POEs, surge technical support to CBP at the same locations, or do some combination of both. HHS/CDC would also have to monitor the health of tens of thousands of . . . aliens introduced into the United States, and alert public health departments about any health issues that need follow-up. HHS/CDC does not have resources and personnel available to execute those additional functions; HHS/CDC would have to reallocate personnel from existing quarantine operations, which would jeopardize the effectiveness of those operations, endanger public health, and impose additional costs on U.S. taxpayers.

Further, the Departments strongly disagree with comments that suggested the rule is pretextual, unnecessary, or ineffective because of the high rate of COVID-19 infections in the United States. Rather, the Departments defer to the expertise of the CDC, which has concluded that the introduction of additional cases, in addition to threatening the health and safety of DHS officers and other aliens, could exacerbate the spread of disease in the general public and further strain medical providers in many communities, presenting a serious threat to the security of the United States. As the CDC has stated, “even if persons or property in the United States are already infected or contaminated with a quarantinable communicable disease, the introduction of one or more additional persons capable of disease transmission in the same or different localities can nevertheless present a serious danger of the introduction of the disease into the United States”

and “helping to slow the community transmission of COVID-19 and the number of new COVID-19 cases in the States in the U.S.-Mexico border region . . . helps protect the domestic population from COVID-19.”

For these reasons, the Departments see no need to provide additional empirical data, as requested by commenters, regarding the number of asylum seekers who have brought contagious diseases into the United States, the source of that data, the effects of those diseases on the general population, and how such a disease could spread in the process of deportation, including while an alien is in ICE custody. In addition, “arbitrary and capricious” review is “highly deferential, presuming the agency action to be valid.”

It is “reasonable for the [agency] to rely on its experience” to arrive at its conclusions, even if those conclusions are not supported with “empirical research.”

Id.

at 56454.

Id.

at 56456.

Sacora

Thomas,

628 F.3d 1059, 1068 (9th Cir. 2010) (

citing Motor Vehicle Mfrs Ass'n

State Farm Mut. Auto Ins. Co,

463 U.S. 29, 43 (1983)).

Id.

at 1069.

The Departments also disagree with commenters who argued that the fact that other countries have not curtailed asylum eligibility because of the COVID-19 pandemic proves that the NPRM is unnecessary or pretextual. The Departments are utilizing longstanding authority under domestic law to mitigate the danger of aliens bringing into the United States or exacerbating the spread within the United States of a serious contagious disease and thereby mitigate a threat to the security of the United States. It is outside the scope of this rule to evaluate the availability of legal tools to foreign governments regarding restricting asylum eligibility based on a threat to the national security. Further, the Departments disagree with comments that state that the risk of spreading a contagious disease or illness to the alien's home country or country of removal outweighs the Federal government's interest in preventing or mitigating potentially catastrophic harm to the health and security of the United States or is even a relevant consideration in interpreting the applicability of section 208(b)(2)(A)(iv) or section 241(b)(3)(B)(iv) of the INA, which are solely focused on the danger to the security of the United States. As the CDC has concluded, the “faster a[n alien who will be placed in a congregate setting] is returned . . . the lower the

risk the alien poses of introducing transmitting, or spreading COVID-19 into POEs, Border Patrol stations, other congregate settings, and the interior [of the United States].”

Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 FR 17060, 17067 (Mar. 20, 2020).

Some commenters opposed the NPRM because they believed that the diseases referred to in the NPRM do not present a significant risk to the general public or are treatable. To the contrary, the diseases are serious by any measure. The term “communicable disease of public health significance” includes any of the following diseases:

(1) Communicable diseases as listed in a Presidential Executive Order, as provided under Section 361(b) of the Public Health Service Act. . . .

The current list of quarantinable communicable diseases is available at

http://www.cdc.gov

and

http://www.archives.gov/federal-register.

(2) Communicable diseases that may pose a public health emergency of international concern if it meets one or more of the factors listed in [42 CFR] § 34.3(d) and for which the Director has determined a threat exists for importation into the United States, and such disease may potentially affect the health of the American public. . . .

(i) Any of the communicable diseases for which a single case requires notification to the World Health Organization (WHO) as an event that may constitute a public health emergency of international concern, or

(ii) Any other communicable disease the occurrence of which requires notification to the WHO as an event that may constitute a public health emergency of international concern. . . .

(3) Gonorrhea.

(4) Hansen's disease, infectious.

(5) Syphilis, infectious.

(6) Tuberculosis, active.

42 CFR 34.2(b).

Under section 1 of Executive Order 13295, as amended:

Based upon the recommendation of the Secretary of Health and Human Services . . ., in consultation with the Surgeon General . . . the following communicable diseases are hereby specified pursuant to section 361(b) of the [PHSA]:

(a) Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).

(b) Severe acute respiratory syndromes, which are diseases [other than influenza] that are associated with . . . pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled. . . .

In addition, the bars will only apply (1) to communicable diseases that have triggered an ongoing declaration of a public health emergency under Federal law, and (2) where the Secretary and the Attorney General have, in consultation with HHS, jointly determined that, because a communicable disease of public health significance (in accordance with HHS regulations) is prevalent or epidemic in an area of the world, the physical presence in the United States of an alien or a class of aliens who have come from such area during a period in which the disease is or was prevalent or epidemic there would cause a danger to the public health in the United States, and have consequently designate the place, the period of time, or circumstances under which they deem it necessary for the public health that such alien or class of aliens be regarded as a danger to the security of the United States. The Departments believe this framework provides the Departments sufficient flexibility to apply the bars in cases of potential future pandemics or public health crises while ensuring that the bars are only applied in situations that present a public health crisis sufficient to threaten the security of the United States.

In addition, the Departments disagree that the availability of treatment is an adequate marker to determine whether a contagious disease poses a threat to the security of the United States such that the bar to asylum and withholding of removal should apply. Treatment may only, and to a partial extent at that, ameliorate symptoms without curing a disease, and may be prohibitively expensive or resource-intensive.

The Departments note that as to the “judicial review protocol,” it is prescribed by statute and is not something the Departments created through regulation. Section 235(b) of the INA, 8 U.S.C. 1225(b), provides that:

The Attorney General shall provide by regulation and upon the alien's request for prompt review by an immigration judge of a determination . . . that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination . . . .

The Departments disagree with comments suggesting that the rule's rationale is flawed because the United States has been allowing certain classes of individuals to travel to the United States and because the rule does not apply to U.S. citizens, lawful permanent residents, and people engaged in trade and education. Of course, only aliens may receive asylum and withholding of removal. Aliens seeking asylum or withholding of removal, including aliens with a lawful immigration status, are subject to the bar, which the Departments have put in place to protect the United States from those who are determined to be a danger to the Nation's security.

When evaluating aliens' eligibility for asylum and withholding of removal, this rule does not apply the public health bars to those aliens who file such an application upon return from Canada pursuant to the U.S.-Canada safe third country agreement.

Finally, the Departments disagree that protecting the security of the United States is inconsistent with the administration's messaging regarding the COVID-19 pandemic and decline to further respond on the basis that such messaging is outside the scope of this rule.

E. Proposed Changes to the Rule

1. Clarifying Application of “Danger to the Security of the United States” Bars to Eligibility for Asylum and Withholding of Removal

Categorical Nature of the Bars

Comment:

One commenter stated that denying asylum seekers “categorically” would contravene the intent of U.S. immigration law and especially the Refugee Act. Relying on the plain language of the statute, a legal services provider argued that the proposal exceeds its statutory authority by potentially barring, without time limitation, thousands of individuals on a class-wide basis who pose no risk to the United States. Similarly, a group of commenters cited

Grace

Whitaker,

and an advocacy group provided citations to additional cases, in arguing that asylum determinations must be made on an individualized basis. Other commenters argued that no individualized determination would be possible under the NPRM as it instructs adjudicators that they “may consider” symptoms and travel history for a determination as to whether an alien is subject to the danger to the security of the United States bars and simultaneously instructs adjudicators that the Secretary of Homeland Security and the Attorney General have already “deem[ed]” entire classes of individuals to be regarded as a danger to the security of the United States. More specifically, commenters argued that:

“[p]roposed 8 CFR 208.13(c)(10) and 1208.13(c)(10) do not provide clear guidance as to whether adjudicators are required to apply an individualized or a categorical bar, and in some circumstances appears to entirely remove discretion from adjudicators and require a blanket determination that a person be subject to the bar, without an individualized determination.”

344 F. Supp.3d 96 (D.D.C. 2018),

aff'd in part and vacated in part by Grace

Barr,

965 F.3d 883 (D.C. Cir. 2020).

Response:

The commenters raised a valid concern that the NPRM did not provide sufficiently clear guidance as to whether adjudicators are required to apply the proposed bars in an individualized or categorical fashion. Of course, all statutory bars to eligibility, including the danger to the security of the United States bars, for asylum and withholding of removal are “categorical,” in that any alien to whom they apply is ineligible for asylum.” As to asylum, “[p]aragaph (1) [describing which aliens may be granted asylum]

shall not apply

to an alien if the [Secretary or the] Attorney General determines that . . . .” INA 208(b)(2)(A), 8 U.S.C. 208(b)(2)(A) (emphasis added). As to withholding of removal, “[s]ubparagraph (A) [describing which aliens may not be removed to a country where their life or freedom would be threatened]

does not apply

to an alien . . . if the [Secretary or the] Attorney General decides that . . . .” INA 241(b)(3)(B), 8 U.S.C.(b)(3)(B) (emphasis added). The parameters under which an alien is considered ineligible for asylum and withholding of removal in order to protect law enforcement officers and the public during a public health crisis are ones that should be decided by the Secretary and the Attorney General, taking into consideration the advice of governmental experts, not individual officials or adjudicators on an ad hoc basis. The role of individual officials and adjudicators should be to determine whether aliens in fact meet the criteria for ineligibility that have been set forth to protect our country.

Therefore, the final rule clarifies that the bars established by the rule (implementing the Departments' understanding of the danger to the security of the United States bars) are “categorical” in the following manner. First, if a communicable disease has triggered an ongoing declaration of a public health emergency under Federal law, such as under section 319 of the Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3, then an alien is ineligible for asylum and withholding of removal (on the basis of there being reasonable grounds for regarding the alien as a danger to the security of the United States) if the alien either exhibits symptoms indicating that he or she is afflicted with the disease, per guidance issued by the Secretary or the Attorney General, as appropriate, or has come into contact with the disease, per guidance issued by the Secretary or the Attorney General, as appropriate.

Second, if, regarding a communicable disease of public health significance as defined at 42 CFR 34.2(b), the Secretary and the Attorney General, in consultation with the Secretary of Health and Human Services, have jointly

• Determined that the physical presence in the United States of aliens who are coming from a country or countries (or one or more subdivisions or regions thereof), or who have embarked at a place or places where such disease is prevalent or epidemic (or had come from that country or countries (or one or more subdivisions or regions thereof), or had embarked at that place or places, during a period in which the disease was prevalent or epidemic there), would cause a danger to the public health in the United States, and

• Designated the foreign country or countries (or one or more subdivisions or regions thereof), or place or places, and the period of time or circumstances under which they jointly deem it necessary for the public health that aliens or classes of aliens described in the first bullet point who were present in an impacted region within the number of days equivalent to the longest known incubation and contagion period for the disease be regarded as a danger to the security of the United States, including any relevant exceptions as appropriate,

Then, an alien or class of aliens are ineligible for asylum and withholding of removal (on the basis of there being reasonable grounds for regarding the alien or class of aliens as a danger to the security of the United States) if the alien or class of aliens are described in the first bullet point and are regarded as a danger to the security of the United States as provided in the second bullet point.

While the discretionary/categorical distinction was not discussed in the NPRM, as the D.C. Circuit ruled in

Nat'l Mining Ass'n

Mine Safety and Health Admin:

An agency's final rules are frequently different from the ones it published as proposals. The reason is obvious. Agencies often “adjust or abandon their proposals in light of public comments or internal agency reconsideration.” . . . Whether in such instances the agency should have issued additional notice and received additional comment on the revised proposal “depends, according to our precedent, on whether the final rule is a `logical outgrowth' of the proposed rule.” . . . While we often apply the doctrine simply by comparing the final rule to the one proposed, we have also taken into account the comments, statements and proposals made during the notice-and-comment period. . . . In

South Terminal Corp.

EPA,

the case that gave birth to the “logical outgrowth” formulation, the court did the same. 504 F.2d 646, 659 (1st Cir. 1974). The court held that the final rule was “a logical outgrowth”-not simply of the proposed rule—but “of the hearing and related procedures” during the notice and comment period.

512 F.3d 696, 699 (D.C. Cir. 2008) (citations omitted).

As the Circuit had realized earlier in

Int'l Harvester Co.

Ruckelshaus,

“[a] contrary rule would lead to the absurdity that in rule-making under the [Administrative Procedure Act] the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary.”

478 F.2d 615, 632 n.51 (D.C. Cir. 1973).

As illustrated by the thoughtful comments the Departments received highlighting the need to clarify whether the NPRM was discretionary or categorical, the clarification in the final rule meets any “logical outgrowth” requirements under the APA.

Applicability to Aliens Who Are Applying for Asylum or Withholding of Removal in the United States Upon Return From Canada (Pursuant to the Agreement Between the Government of the United States and the Government of Canada for Cooperation in the Examination of Refugee Status Claims From Nationals of Third Countries)

Comment:

Several commenters cited litigation in Canada surrounding the “safe third country” agreement between the United States and Canada and noted that a Canadian federal court found the agreement to be unconstitutional. One commenter stated that if published, this final rule would further damage the reputation of the United States as a leader in providing humanitarian protection.

Response:

The Departments note that maintenance of the United States' reputation as a leader in providing humanitarian protection must not eclipse the importance of maintaining a strong and effective safe third country agreement with our Canadian partners. Accordingly, this rule provides for an exemption for those aliens who apply for asylum or withholding of removal upon return from Canada to the United States pursuant to the U.S.-Canada safe third country agreement.

Level of Danger Required To Invoke the Danger to Security Bars to Asylum and Withholding of Removal

Comment:

Several commenters argued, citing

Yusupov

Att'y Gen. of U.S.,

that the danger to the security of the United States bars to eligibility for asylum and withholding of removal may only be applied to an applicant who poses an “actual” threat rather than a possible or potential threat or to one who “may” pose a danger. The commenters contend that the rule is impermissibly broad because it applies the bars to those who do not actually carry a communicable disease, contrary to the actual threat standard.

One commenter also wrote that

Yusupov

requires that security bars apply only in a narrow set of circumstances and that, given the widespread nature of the COVID-19 pandemic even within the United States, the proposal contravenes this requirement. The commenter further asked that the Departments demonstrate how border enforcement personnel face a higher risk from asylum seekers than from others those officials regularly encounter in their own communities and how finding an applicant ineligible for asylum would reduce the risk to enforcement personnel. Another legal services provider wrote that the Departments' focus on the probable cause standard is a “distraction” and cannot allow the Departments to rely on a potential risk rather than an actual one as the grounds for a security bar. A professional association expressed worry that the proposed rule could apply an asylum bar to an applicant on the basis of a probable cause standard and using evidence that does not meet the standard of admissibility for court proceedings.

Additionally, commenters argued that the mere potential exposure of an asylum seeker to a disease or the untrained opinion of a non-expert adjudicator of a person's symptoms could not provide a reasonable basis for barring the applicant from eligibility for asylum.

Another commenter added that the threat posed by an individual asylum applicant's health falls below the “non-trivial” standard set forth in

Matter of A-H-,

arguing that the threat of migrants must be viewed individually.

Matter of A-H-,

23 I&N Dec. 774, 788 (A.G. 2005).

Response:

The Departments fully acknowledge that an alien must actually pose the requisite level of danger, noting the Ninth Circuit's conclusion that “[t]he bottom line in

Yusupov,

which we adopt, is that . . . the alien must `actually pose a danger' to United States security . . . .”

However, as the Departments stated in the NPRM, it also must be recognized that the danger posed by aliens during a pandemic is unique. In many cases it will not be possible to know whether any particular individual is infected at the time of apprehension or application. As the CDC has explained, depending on the disease at issue, many individuals who are actually infected may be asymptomatic, reliable testing may not be available, and, even where available, the time frame required to obtain test results may both be operationally unfeasible and expose DHS officers, other aliens, and domestic communities to possible infection while results are pending. In conclusion, an alien who arrives from a location in which the spread of a communicable disease already poses a serious danger and who will need to be placed in a congregate setting represents on their own a danger to the security of the United States.

Malkandi

Holder,

576 F.3d 906, 914 (9th Cir. 2009).

Of course, this rule cannot eliminate all risk that border enforcement personnel may face in their communities related to a communicable disease of public health significance. It is not designed to do so, nor could it. The final rule is designed to ameliorate the specific risk identified by the CDC of their being placed in close personal contact in congregate settings with aliens at a heightened risk of infection.

Finally, the Departments reject that reliance on the probable cause standard is a “distraction.” It is the legal standard set forth in binding precedent and is necessary to understand the “reasonable grounds” component of the danger to the security of the United States bars to eligibility for asylum and withholding of removal. In

Matter of A-H

-, the Attorney General determined that “reasonable” in the context of the danger to the security of the United States bar to withholding of removal “implied the use of a `reasonable person' standard” that was “substantially less stringent than preponderance of the evidence,” and instead akin to “probable cause.”

The standard “is satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security.”

23 I&N Dec. at 788-89.

Id.

at 789 (citation omitted).

Accordingly, the Departments are not making changes to the final rule in response to these comments.

Public Health Concerns as a Basis for Finding “Danger to the Security of the United States” or Otherwise Bar Eligibility for Asylum

Comment:

Several commenters argued that public health concerns should not be a basis for denying asylum or for finding reasonable grounds for regarding an applicant to be a danger to the security of the United States. Some commenters argued that the rule exceeds the Departments' authority, as only Congress can expand upon the “danger to security” bar or define the bounds of asylum eligibility. Commenters contended that section 208(b)(2)(C) of the INA does not give the Departments authority to add new bars to asylum eligibility and that the INA unambiguously defines “dangers to the security of the United States” without reference to public health and thus that the NPRM is an unlawful attempt to expand the statute.

Commenters also argued that section 208 of the INA intentionally omits public health concerns as a basis of denial (such as by not incorporating the INA's health-related inadmissibility grounds, INA 212(a)(1), 8 U.S.C. 1182(a)(1), as a basis for finding an alien ineligible for asylum) and that when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) it could have defined the danger to the security of the United States bar, but chose not to do so. One commenter cited dictionary definitions of “reasonable”, “danger”, and “security” to argue that the proposed rule contravenes the INA. Another argued that the NPRM is unjust and inconsistent with the character of the INA in that it applied a bar based on a factor outside of an asylum seeker's control.

Another commenter argued that the “expresio unis” canon of construction, whereby when multiple items of a category are expressly mentioned, others in the same class are excluded, leads to the conclusion that because the three statutory bars to applying for asylum, INA 208(a)(2), do not include public health concerns, such concerns should not bar an alien from being able to apply for asylum. Another commenter argued more generally that the NPRM violates section 208(a)(1) of the INA, which guarantees the right of every alien physically present in the United States to apply for asylum, by denying asylum seekers who arrive in the United States the right to seek refuge.

Other commenters argued that the danger to the security of the United

States bars should only be read to apply to criminal and/or terrorist-related concerns, one arguing that because other mandatory bars to asylum found in INA 208(b)(2)(A) include references to crimes, the term danger to the security of the United States must be read narrowly to involve considerations of criminal threats or intentional harm to others rather than for any type of harm. The commenter cited the “ejusdem generis” canon of construction whereby when “a more general term follows more specific terms in a list, the general term is usually understood to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Several commenters argued that the bars should be limited to terrorism-related threats and that the proposed rule misinterprets

Matter of A-H-,

reasoning that “economic interests” should be understood as economic interests that could be targeted by terrorists, not those affected by public health concerns. Another group of commenters stated that nothing in the INA permits a definition of “economic interests” which includes public health concerns.

Response:

The Departments disagree with comments stating that public health concerns cannot constitute reasonable grounds for regarding or believing an alien as a danger to the security of the United States. As then-Secretary of Homeland Security, Michael Chertoff, stated in 2006, “[a] severe pandemic . . . may affect the lives of millions of Americans, cause significant numbers of illnesses and fatalities, and substantially disrupt our economic and social stability.”

In addition, components of the U.S. military have indicated that the global spread of pandemics can impact military readiness, thus posing a direct threat to U.S. national security.

For example, the risk of further spread of COVID-19 this year has led to the cancellation or reduction of various large-scale military exercises and a 60-day stop-movement order.

DHS,

Pandemic Influenza: Preparedness, Response, and Recovery: Guide for Critical Infrastructure and Key Resources,

Introduction at 1 (2006) (Michael Chertoff, Secretary of Homeland Security),

https://www.dhs.gov/sites/default/files/publications/cikrpandemicinfluenzaguide.pdf.

Diane DiEuliis & Laura Junor,

Ready or Not: Regaining Military Readiness During COVID19,

Strategic Insights, U.S. Army Europe (Apr. 10, 2020),

https://www.eur.army.mil/COVID-19/COVID19Archive/Article/2145444/ready-or-not-regaining-military-readiness-during-covid19/

(discussing the spread within the military of twentieth-century pandemics and consequences of the spread this year of COVID-19).

See id.

The Departments reject the argument that because the statutory bars to eligibility for asylum and withholding of removal do not specifically reference the health-related inadmissibility grounds found at section 212(a)(1)(A) of the INA, that no public health concerns can be considered in assessing an applicant's potential danger to the security of the United States. This rule was never designed to incorporate all these health-related grounds—which can make an alien inadmissible as a result of the lack of immunization, physical or mental disorders that may pose or have posed a threat to the property, safety, or welfare of the alien or others, and drug abuse and addiction—into the bars to eligibility for asylum and withholding. It is only in limited circumstances involving declared Federal public health emergencies or joint determinations by the Secretary of Homeland Security and Attorney General that aliens coming from areas of the world where a communicable disease of public health significance is prevalent or epidemic would constitute a danger to public health and that an asylum or withholding applicant would be considered to pose a danger to the security of the United States. Similarly, the Departments reject commenters' arguments that because the asylum bars do not specifically mention public health concerns, that the bar regarding danger to the security of the United States should be interpreted to exclude such concerns.

Additionally, the rule does not contravene section 208(a)(1) of the INA since it does not create a bar to applying for asylum. Rather, it clarifies the Departments' understanding of a longstanding statutory bar to asylum eligibility. Finally, the bars to applying for asylum at section 208(a)(2) and the bars to asylum eligibility at section 208(b)(2) in fact do include factors that are outside an applicant's control or “categorical,” such as the existence of a safe third country agreement. INA 208(a)(2)(A).

The Departments are not making changes to the final rule in response to these comments.

Guidance and Training for Officers Determining Application of the Bars

2. Application of the Danger of the Security of the United States Bars in Credible Fear Screenings in the Expedited Removal Process

Comment:

Several commenters expressed concern about applying the danger to the security of the United States bars at the credible fear stage, where previously negative credible fear determinations could not be based on aliens being subject to such bars. Commenters argued that this would deny individuals with a well-founded fear of persecution the opportunity to establish their eligibility for humanitarian protection, that it would eliminate all exercise of judgement or discretion, and make it nearly impossible to disprove the application of the bars, which deprives asylum seekers of the opportunity to seek asylum in court before an immigration judge.

Other commenters argued that the proposed rule is

ultra vires

by creating an “infectious disease” bar to asylum and withholding of removal that would disqualify applicants at the credible fear stage, when such individuals (even if infected with COVID-19 at the time of arrival) would be unlikely to remain infectious by the time of adjudication of their applications for asylum or withholding of removal. They argued that the NPRM would not protect border security personnel from a communicable disease or prevent spread in border facilities or the community, because the period when an applicant is most likely to spread a communicable disease is during the credible fear process (including the credible fear interview and review by an immigration judge) that can take from seven to ten days. The commenters stated that this timeline was not sufficiently addressed in the proposed rule and expressed concern that CBP and ICE would continue holding individuals in “congregate settings” during the credible fear process, a practice that would put many others at risk prior to the application of the NPRM's changes to the credible fear process. The commenters also questioned why DHS could not test each asylum seeker upon apprehension and provide results within the time required for a credible fear interview and review by an immigration judge.

An individual commenter asked several questions about the procedural steps that would be involved should asylum seekers stop exhibiting the perceived symptoms that led to a determination that they may have COVID-19. Specifically, the commenter asks whether an immigration judge could overturn a negative credible fear finding and whether the BIA could overturn a denial of asylum when the applicant has ceased exhibiting the symptoms that were the basis of the determination.

Another commenter argued that the agencies' assertion that the NPRM's impact on time spent making and reviewing screening decisions “would be minimal” was incorrect because

adding the consideration of a danger to the security of the United States bars in the screening process would “exponentially increase the length and complexity of the adjudication.” Another legal services provider expressed concern that the proposal's anticipation of “minimal” review time indicates the review will be “cursory and not appropriately detailed.”

Response:

The rule does not create an “infectious” or “communicable” disease bar to asylum and withholding of removal. Rather, the rule clarifies the Departments' understanding of the existing statutory bars regarding aliens who are reasonably regarded to be dangers to the security of the United States.

The Departments acknowledge that an applicant may be most likely to spread a communicable disease upon and soon after arrival, which coincides with the period in which an alien placed into expedited removal proceedings would be going through credible fear screening. However, this is not always true. As the CDC has stated, there is an “ever-present risk that future pandemics may present new or different challenges . . . . A new virus could have a longer incubation period than . . . the virus that causes COVID-19 . . . or cause a disease that takes longer to run its course.”

By way of example, the incubation period for tuberculosis can be years in length, and that of hepatitis B can be up to 180 days.

Illinois Department of Public Health,

available at https://dph.illinois.gov/sites.default/files/publications/commchartschool-032817.pdg

(last visited on October 15, 2020); Center for Acute Disease Epidemiology, Iowa Department of Public Health,

The Epidemiology of Common Communicable Diseases,

available at

https://idph.iowa.gov/Portals/1/userfiles/79/Documents/Epi%20of%20Common%20Communicable%20Diseases%20June%202013%20-%20FINAL.pdf

(last visited on October 15, 2020).

The Departments did consider limiting the scope of this rule, such as by only applying the bars to those aliens who are symptomatic. But as the CDC has determined in the context of COVID-19:

Identifying those infected with COVID-19 can be difficult, as asymptomatic cases are currently believed to represent roughly 40% of all COVID-19 infections. The infectiousness of asymptomatic individuals is believed to be about 75% of the infectiousness of symptomatic individuals. HHS/CDC's current best estimate is that between 40 to 50% of infections are transmitted prior to symptom onset (pre-symptomatic transmission).

The Departments note that the final rule is not, as the NPRM proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage. In the interim between the NPRM and the final rule, the Global Asylum Final Rule did so for all of the bars to eligibility for asylum and withholding of removal. In any event, the Departments do not intend for asylum officer and immigration judge assessments of the applicability of the security bars in the credible fear process to be “cursory and not appropriately detailed.” As stated in the proposed rule, it is anticipated that asylum officers and immigration judges will need to spend additional time during the credible fear process to determine whether an alien is ineligible for asylum or withholding of removal based on the security bars. However, the Departments believe that the additional time spent making such determinations will be minimal because the issues to be explored by the asylum officer and the immigration judge will usually be fairly straightforward and not involve complex analysis,

e.g.,

the place and time of an alien's embarkation.

The Departments are not making changes to the final rule in response to these comments.

Higher Standard for Credible Fear Determinations

Comment:

Multiple commenters argued that the rule impermissibly raises the standard for demonstrating a credible fear and imposes the burden onto the asylum seeker to “disprove the assumption that they are a danger to security due to public health.” The commenters state that asylum seekers would be ill equipped to meet the proposed higher standards in the credible fear screening process due to trauma, lack of evidence or key information when they arrive at the border, lack of legal representation, and lack of English proficiency, all of which renders them incapable of contributing meaningfully to their own defense. Another commenter added that the rule denies asylum seekers the opportunity to receive meaningful administrative or judicial review. Another noted that asylum seekers would have difficulty proving they do not have a disease at this stage in the process because they would not have access to physicians, medical screenings, or tests while in detention. Another commenter argued that the burden of proof concerning credible fear and application of the national security bars should fall to the government, given the danger, including death, that some asylum seekers may face upon return to their home country.

Response:

The rule does not, and could not, alter the standard for demonstrating a credible fear of persecution, which is set by statute as a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum . . . .” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Asylum officers and immigration judges will continue to assess credible fear for purposes of potential eligibility for asylum by determining whether there is a significant possibility that the alien can establish eligibility for asylum—which of necessity requires the alien to demonstrate a significant possibility of each element of asylum eligibility. Thus, to meet the credible fear standard, the alien need only establish a significant possibility that the danger to the security of the United States bar does not apply and a significant possibility of meeting the other relevant eligibility criteria.

The Departments do not agree that it is appropriate to place the burden on the government concerning the application of the danger to the security of the United States bars, or that they could even do so consistent with the INA. Section 235(b)(1)(B)(iii)(II) of the INA, which requires an asylum officer to prepare a written record of a negative credible fear determination analyzing why “the alien has not established a credible fear of persecution,” states that it is the alien's responsibility to establish a credible fear of persecution. While the burden lies with the alien, the officer is charged with eliciting (in a non-adversarial manner) relevant information that bears on whether the alien has a credible fear of persecution, including whether there is a significant possibility that the danger to the security of the United States bars does or does not apply. 8 CFR 208.30(d). The Departments point out that testimony alone, if otherwise credible, can be sufficient to meet the alien's burden of proof.

INA 208(b)(1)(B)(ii) and 241(b)(3)(C), 8 U.S.C. 1158(b)(1)(B)(ii) and 1231(b)(3)(C); 8 CFR 208.13(a), 208.16, and 208.16(c)(2).

The Departments are not making changes to the final rule in response to these comments.

Role of Asylum Officers and Border Agents

Comment:

Several commenters raised concerns that the rule, by placing this inquiry in the credible fear stage of the removal process, increases the decision-making authority of “low-level immigration officials,” including border agents and asylum officers, to make complex national security determinations without the proper expertise and without the “significant pre-hearing preparations” that would accompany removal proceedings before an immigration judge. Several commenters posed questions about what kind of guidance, training, or other measures would be implemented to enable CBP officers, asylum officers, and immigration judges to determine whether an asylum seeker is exhibiting symptoms consistent with a contagious disease. Others asked whether such trainings would address implicit and explicit bias in making such determinations, and how such determinations would be tracked and measured. Another commenter argued that requiring asylum officers to make determinations about withholding of removal under the CAT regulations violates 8 CFR 208.16(a), which states that asylum officers “shall not” decide withholding claims.

Response:

As noted, the final rule is not, as the NPRM proposed, modifying the regulatory framework to apply the danger to the security of the United States bars at the credible fear stage because, in the interim between the NPRM and the final rule, the Global Asylum Final Rule did so for all of the bars to eligibility for asylum and withholding of removal. In any event, the application of asylum eligibility bars at the credible fear stage has no bearing on how asylum officers or immigration judges assess alleged trauma during the screening process. Adjudicators in both Departments are trained to make these assessments and are well versed in assessing the credibility of applicants, including accounting for trauma as relevant. Regarding commenters' concerns about requiring asylum officers to determine whether the bars apply during the credible fear interview, the Departments note that asylum officers are well trained in asylum law and are more than capable of determining whether statutory bars apply, especially in the credible fear-screening context. An asylum officer must have “had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications [for asylum],” and “is supervised by an officer who [has had similar training] and has had substantial experience adjudicating asylum applications.” INA 235(b)(1)(E), 8 U.S.C. 1235(b)(1)(E)); 8 CFR 208.1(b). DHS asylum officers regularly make determinations on a variety of issues surrounding eligibility in a manner consistent with their extensive and multi-faceted training and country conditions and other resources at their disposal. Asylum officers receive extensive training in all the requirements for asylum eligibility, international human rights law, non-adversarial interviewing techniques, and other national and international refugee laws and principles. 8 CFR 208.1(b). This training includes specific lessons on cross-cultural communication; interviewing survivors of torture; and working with an interpreter, all of which touch on explicit and implicit bias. With the publication of this rule, asylum officers will receive additional training on the standards and requirements set forth in this rule. The Departments also note that even before promulgation of the Global Asylum Final Rule, asylum officers already elicited testimony related to mandatory bars to asylum and/or withholding of removal in the credible fear context—they simply did not apply them under then-current regulations.

See

Government Accountability Office,

Actions Needed to Strengthen USCIS's Oversight and Data Quality of Credible and Reasonable Fear Screenings

(Feb. 2020) at 10 (“In screening non-citizens for credible or reasonable fear. . . [a] USCIS asylum officer is to determine if the individual has any bars to asylum or withholding of removal that will be pertinent if the individual is referred to immigration court for full removal proceedings.”),

https://www.gao.gov/assets/710/704732.pdf;

USCIS Refugee, Asylum, and International Operations,

Lesson Plan on Credible Fear of Persecution and Torture Determinations

(Apr. 30, 2019) at 31 (“Even though the bars to asylum do not apply to the credible fear determination, the interviewing officer must elicit and make note of all information relevant to whether a bar to asylum or withholding applies or not.”),

https://fingfx.thomsonreuters.com/gfx/mkt/11/10239/10146/2019%20training%20document%20for%20asylum%20screenings.pdf.

Lastly, responding to commenters' concerns that such determinations would be “final,” 8 CFR 208.16(a) provides that an asylum officer “shall not decide whether . . . removal of an alien . . . must be withheld.” The rule provides for the asylum officer to conduct a screening for potential eligibility for withholding and deferral of removal. Asylum officer screening for these protections is currently part of the credible fear process and do not result in a grant or denial of withholding or deferral of removal, which can only be done by an immigration judge, 8 CFR 208.16(a), 208.17, 1208.16(a), and 1208.17. An asylum officer's determination following a credible fear interview can be reviewed by an immigration judge, either as part of a de novo review of a negative credible fear determination, or in asylum-and-withholding-only proceedings, where the immigration judge is not bound by findings of the asylum officer. As the Supreme Court has observed, “[a]n alien subject to expedited removal thus has an opportunity at three levels to obtain an asylum hearing, and the applicant will obtain one unless the asylum officer, a supervisor, and an immigration judge all find that the applicant has not asserted a credible fear.”

Thuraissigiam,

140 S. Ct. at 1965-66.

The Departments have reviewed and considered the comments and are not making changes to the final rule in response to these comments.

Confidentiality of Health Information

Comment:

One commenter stated that the rule violates asylum seekers' right to privacy and confidentiality by requiring them to disclose health information to immigration officers. The commenter also faulted the rule for failing to include specifics on how asylum seekers' personal health information, medical records, and health data would be collected, stored, and transmitted.

Response:

Information voluntarily provided to DHS for purposes of adjudicating a requested benefit often contains sensitive personally identifiable information. In particular, health information that is collected and maintained within DHS systems of records, for example in the context of the health ground of inadmissibility, INA 212(a)(1), 8 U.S.C. 1182(a)(1); INA 237(a)(1)(A), 8 U.S.C. 1227((a)(1)(A), as it applies to applications for adjustment of status, INA 245(a)(2), 8 U.S.C. 1255(a)(2), is appropriately protected and handled in the same manner as other sensitive information possessed by DHS. Information about the safeguarding of health information and other sensitive information may be found in the various System of Records Notice and Privacy Impact Assessments that DHS and its components are statutorily required to prepare.

Moreover, asylum, credible fear, reasonable fear and by policy, refugee information, enjoy heighted

confidentiality protections provided for in accordance with 8 CFR 208.6.

Available at

https://www.dhs.gov/uscis-pias-and-sorns.

Written Record and Immigration Judge Review of Negative Credible Fear Determinations

Comment:

One commenter addressed the proposed provision at 8 CFR 208.30(e)(1), which calls for a written record in the credible fear proceeding “subject to (e)(5)”. The commenter stated this amendment was unclear and warned that excusing any credible fear interview from the written record requirement violates the statute at 8 U.S.C. 1225(b)(1)(B)(iii)(II).

Response:

The Departments appreciate the comment received and acknowledge the ambiguity that may have been created from the proposed amendment to section 208.30(e)(1). The proposed language was intended to simply clarify that when an asylum officer creates a written record of his or her determination following a credible fear interview, the officer should, as applicable, include a written record of their determination as to whether the alien has demonstrated that it is more likely than not that he or she would be tortured in the country of removal. After considering the comment, the Departments have revised the language of the proposed amendment (now at section 208.30(e)(4) following the promulgation of the Global Asylum Final Rule) to make this clearer.

Violation of Congressional Intent for Credible Fear Screening Process

Comment:

A joint submission argued that Congress did not grant DHS authority to create bars to credible fear that are unrelated to asylum eligibility at the time of the adjudication of an application. Multiple commenters argued that Congress intended for the credible fear process to employ a “low screening standard” in order to ensure that asylum seekers with genuine claims have access to the full asylum process and are not returned to persecution, and faulted the proposal for raising this standard.

Response:

The NPRM did propose to modify the then-existing regulatory framework in order to apply the danger to the security of the United States bars at the credible fear stage. However, subsequent to the publication of the NPRM, the intervening Global Asylum Final Rule amended the regulatory framework to apply all bars to eligibility for asylum and withholding of removal—including the danger to the security of the United States bars—at the credible fear stage. This rule does not make additional revisions to that regulatory framework.

In any event, the final rule does not create a “bar” to credible fear unrelated to asylum eligibility. The Departments will continue to employ the “low screening standard” prescribed in statute and regulations—a significant possibility that the alien could establish eligibility for asylum. However, pursuant to the Global Asylum Final Rule, asylum officers must determine whether aliens are subject to a bar to relief as part of the significant possibility anaylsis. Accordingly, the Departments are not making changes to the final rule in response to these comments.

3. Streamlining Screening for Deferral of Removal Eligibility in Expedited Removal

Ability of Asylum Seekers To Meet Higher Standard for Protection Under CAT in Credible Fear Screenings

Comment:

The Departments received multiple comments concerning the provisions of the rule that amend the screening standard for potential eligibility for deferral of removal under the CAT regulations. Under the rule, section 208.30(e)(5)(i)(B) is amended to provide that where the asylum officer determines that the applicant is subject to the danger to the security of the United States bars to asylum and withholding of removal, the officer will screen for potential deferral of removal protection under the CAT regulations for an alien who has raised a fear of torture by determining whether the alien is able to establish that it is more likely than not that he or she would be tortured in the prospective country of removal, rather than whether there is a reasonable possibility that the alien would be tortured in the prospective country of removal. Several commenters stated that the “more likely than not” standard is unreasonable in the context of a credible fear screening and argued that this standard was only appropriate for a full immigration hearing before an immigration judge, where a “more likely than not standard” is used as the eligibility standard for deferral of removal. The commenters further argued that raising the standard of proof to the level of a full immigration hearing was inappropriate because individuals in screenings are likely to have less than the required amount of evidence at the time of their arrival and insufficient time to prove their case. Multiple commenters argued that applying the “more likely than not” standard at the expedited removal stage violates the expedited removal standard that was intentionally designed by Congress to be “generous” and “over-inclusive” to avoid the risk of refoulement. The commenters said requiring individuals subject to a danger to the security of the United States bar to prove they are “more likely than not” to be tortured in the country of removal was an unlawful change to the credible fear standard intended by Congress and clearly articulated in the text and legislative history of IIRIRA. Other commenters noted that those seeking protection under the CAT regulations who have suffered recent trauma and psychological harm would have difficulty understanding complex legal requirements and would be unable to fully disclose everything that has happened to them in a “rushed” interview with a stranger, resulting in an undue risk that those facing torture would not be provided appropriate protection. Another commenter added that allowing removal to a third country at the early screening stage would mean that no thorough record will exist as to a person's risk of torture in that third country, a risk the commenter argued may be very high considering the permeability of borders and ease of movement of persecutors between Mexico and Central American countries.

Response:

The Departments first note that the expedited removal provisions of the INA do not even reference screening for withholding or deferral of removal under the CAT regulations. The rule continues to apply the credible fear standard required by statute, defined as a significant possibility that the alien can establish eligibility for asylum. INA 235(b)(1)(B)(v). It is only when the alien is determined not to meet that significant possibility standard due to the application of the danger to the security of the United States bars (subject to review by an immigration judge), and determined not to meet the screening standard for withholding of removal (a reasonable possibility of persecution on account of a protected ground and a reasonable possibility of torture), that DHS will use the “more likely than not” standard to screen for potential eligibility for deferral of removal. There is no statutory requirement to even screen for deferral of removal, putting aside the screening standard used by DHS when it voluntarily engages in screening.

The Departments note that the utilization of the “more likely than not” standard in deferral screenings only applies to aliens determined by DHS to be ineligible for asylum and withholding of removal pursuant to the danger to the security of the United States eligibility bars (or ineligible for asylum pursuant to the Third-Country Transit Final Rule). Aliens determined

by asylum officers to be ineligible for asylum or withholding of removal pursuant to the other mandatory bars will continue to be screened for deferral of removal under the reasonable possibility of torture standard, as provided by the Global Asylum Final Rule.

Sending an alien to immigration court for a deferral of removal adjudication often results in his or her release into the United States for periods of years while the aliens await decisional finality. The need to streamline and expedite screening for deferral of removal is especially great in the context of outbreaks of communicable disease to prevent infected aliens from release into the United States when they are not even ultimately eligible for deferral. As the CDC has concluded, the “faster a covered alien

is returned . . . the lower the risk the alien poses of introducing, transmitting, or spreading COVID-19 into POEs, Border Patrol stations, other congregate settings, and the interior [of the United States].”

In the context of the CDC Order, a “covered alien” includes those “persons who are traveling from Canada or Mexico (regardless of their country of origin), and who must be held longer in congregate settings in POEs or Border Patrol stations to facilitate immigration processing, would typically be aliens seeking to enter the United States at POEs who do not have proper travel documents, aliens whose entry is otherwise contrary to law, and all aliens who are apprehended near the border seeking to unlawfully enter the United States between POEs.” 85 FR at 17067.

Id.

The Departments disagree that the “more likely than not” standard is an inappropriate screening standard for potential protection under the CAT regulations. In fact, Congress made clear that in providing protection under the CAT regulations, the government should not grant protection to aliens barred from eligibility for withholding of removal “[t]o the maximum extent consistent with the obligations of the United States under [CAT].”

The sole purpose of CAT deferral is to provide protection to such aliens (barred from eligibility for withholding of removal) in order ensure that they are not refouled to a country where it is likely that they will be tortured. The preamble to the 1999 CAT rule stated that “[d]eferral of removal will be granted . . . to an alien who is likely to be tortured in the country of removal but who is barred from withholding of removal[,]”

and the regulatory text itself states that to be eligible for deferral an alien must be “subject to the provisions for mandatory denial of withholding of removal under § 208.16(d)(2) or (d)(3).”

FARRA sec. 2242(c), 8 U.S.C. 1231 note (c).

Regulations Concerning the Convention Against Torture, 64 FR 8478, 8480 (Feb. 19, 1999).

8 CFR 208.17(a), 1208.17(a).

This rule furthers Congress's mandate that the withholding of removal eligibility bars apply to aliens seeking protection under the CAT regulations “[t]o the maximum extent consistent with the obligations of the United States under [CAT]” by requiring that aliens meet at the credible fear stage their ultimate burden to demonstrate eligibility for deferral of removal—

i.e.,

that it is more likely than not that they would be tortured in the country of removal. 8 CFR 208.16(c)(2), 208.17(a).

Regarding the commenter's concern about the alien's ability to meet his or her burden with respect to possible torture, as the Departments have noted, asylum officers are trained to research and consider country conditions information, and engage in non-adversarial interview techniques that are designed to elicit all relevant information.

And, as the Departments have noted, testimony alone, if otherwise credible, can be sufficient to meet the alien's burden.

The Departments are confident that officers will be able to access and consider all relevant information that may bear on an alien's potential risk of torture in any particular country.

8 CFR 208.30(d).

INA 208(b)(1)(B)(ii) and 241(b)(3)(C), 8 U.S.C. 1158(b)(1)(B)(ii) and 1231(b)(3)(C); 8 CFR 208.13(a), 208.16, and 208.16(c)(2).

Regarding commenters' concerns that this standard is higher than the asylum standard, the “more likely than not” standard better aligns the initial screening standard of proof with the higher standard used to determine whether aliens are in fact eligible for this form of protection when applying before an immigration judge (than the ultimate standard for asylum eligibility). As noted, Congress intended the “more likely than not” standard to meet United States' non-refoulement obligations in Article 33(1) of the Refugee Convention, not the lower asylum standard.

The Departments recognize that a higher screening standard may make it more difficult to receive a positive fear determination, though that standard is consistent with the higher burden of proof required for considerations of the merits. However, the Departments disagree with commenters that raising the screening standard for deferral of removal will require aliens to submit significantly stronger documentary evidence. Just as in screenings for asylum and withholding of removal eligibility, the testimony of the applicant, if credible, may be sufficient to sustain the alien's burden of proof without corroboration. 8 CFR 208.17(a). At the credible fear interview stage, these claims rest largely on the applicant's testimony, which does not require any additional evidence gathering on the applicant's part. Additionally, an alien who receives an adverse “more likely than not” determination by an asylum officer may seek review of such determination by an immigration judge.

Requirement To Affirmatively Raise and Affirmatively Establish Likelihood of Torture in Prospective Country of Removal

Comment:

Several commenters argued that, since asylum seekers fleeing torture often experience trauma and lack of understanding of U.S. immigration law, they should not be required to make an affirmative statement in credible fear interviews that they may be tortured if returned to their home country. Some commenters opposed the requirement that an asylum seeker in the expedited removal process “affirmatively establish” that torture in the prospective country of removal is more likely than not. A group of commenters said the rule would essentially require asylum seekers to somehow “affirmatively establish” eligibility for withholding of removal or protection under the CAT regulations in an unknown third country. Another commenter said it is unclear how the Departments understand “affirmatively establish” (in the proposed regulations) in relation to “affirmatively raise” (only stated in the preamble). The commenter said the shift to “affirmatively establish” in the proposed regulations appears to suggest a heightened burden on the asylum seeker, in addition to raising the required risk of torture, signaling a burden of presenting affirmative proof of torture at the credible or reasonable fear interviews. The commenter said it is unclear and confusing as to what standard the Departments are inserting.

Response:

The Departments appreciate the comments concerning the “affirmatively establish” language that appeared in the regulatory language of the proposed rule. The adverb was included to make clear that the alien has the burden of proof to establish that torture is more likely than not to occur in the prospective country of removal. After considering the comments, the Departments have concluded that the term “affirmatively” may cause confusion and is not necessary to clarify the burden of proof, which clearly rests with the alien. Accordingly, the term “affirmatively” has been deleted from

the regulatory text in the final rule at sections 208.30(e)(5)(i)(B)(3), (e)(5)(iii)(B), (e)(5)(iii)(B)(3), and 1208.30(g)(2)(iv)(A). An alien's obligation is simply to “establish.”

As to “affirmatively raises”, the preamble to the NPRM stated that “[i]f the alien

affirmatively raises

fear of torture . . . the asylum officer will then assess, as appropriate, the alien's eligibility for deferral of removal under the CAT regulations” and that “[a]n alien who is found by the asylum officer to be subject to the bars and who

affirmatively raises

a fear of torture but does not establish that it is more likely than not that he or she would be tortured can obtain review of both of those determinations by an IJ.”

The Departments have concluded that the phrase “affirmatively raises” could cause confusion, and thus incorporate the preceding sentences by reference in this final rule with the understanding that “affirmatively raises” should read, “has raised”.

Security Bars NPRM, 85 FR at 41213 (emphasis added).

The INS and now DHS's longstanding practice has been to ask every alien subject to expedited removal about a potential fear of return. The regulatory text at 8 CFR 235.3(b)(2)(i), which is not changed by this rule, does not state this explicitly, providing that:

In every case in which the expedited removal provisions will be applied and before removing an alien from the United States pursuant to this section, the examining immigration officer shall create a record of the facts of the case and statements made by the alien. This shall be accomplished by means of a sworn statement using Form I-867AB . . . . The examining immigration officer shall read (or have read) to the alien all information contained on Form I-867A.

However, the preamble to the regulation made clear that all aliens placed into expedited removal were to be questioned about a fear of return:

Service procedures require that all expedited removal cases will be documented by creation of an official Service file, to include a complete sworn statement taken from the alien recording all the facts of the case and the reasons for a finding of inadmissibility. This sworn statement will be taken on a new Form I-867AB, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act. The form will be used in every case where it is determined that an alien is subject to the expedited removal process, and contains a statement of rights, purpose, and consequences of the process. . . . The final page of the form contains a standard question asking if the alien has any fear or concern of being removed or of being sent home.

Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10319 (Mar. 6, 1997) (interim rule with request for comments) (emphasis added).

Accordingly, CBP/ICE officers ask aliens these questions during the expedited removal process:

• Why did you leave your home country or country of last residence?

• Do you have any fear or concern about being returned to your home country or being removed from the United States?

• Would you be harmed if you are returned to your home country or country of last residence?

The alien's answers to these questions are memorialized on the I-867B Form.

DHS, Form I-867B (08/01/07) (Jurat for Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act).

Thus, all aliens receiving credible fear screening interviews will already have been asked whether they have a fear of return and have answered in the affirmative (triggering the credible fear process). Aliens with a fear of return based on torture would presumably have stated such a fear at that time.

Unidentified Third Country

Comment:

Many commenters stated that the rule would eliminate even the prospect of protection under the CAT regulations because DHS officials would be permitted to send an alien to a third country unless the alien proves during a credible fear interview that they would be persecuted or tortured in that specific country—without any requirement that the person be informed of the identity of the country in advance, which one commenter argued is nonsensical, immoral, and cruel. Without notice of the country a person would be sent to, these commenters said asylum applicants would face a near-impossible burden to avoid being sent to a place where they may be tortured.

Response:

The Departments appreciate the comments and agree that an alien should be informed of the identity of a prospective country of removal, provided with an opportunity to raise a fear of torture if removed to that country, and to have that fear assessed to determine whether he or she has established that it is more likely than not that they will be tortured in that country. That was always the Departments' intent, and the Departments accordingly include language in the final rule clarifying that aliens must be notified of the identity of the proposed country.

Unclear Process for Removability Determinations

Comment:

Some commenters stated that the proposed rule is unclear as to the process by which determinations about removability to a third country will be made for individuals who have shown a credible fear of persecution or torture in their home country. The commenters said that given that asylum seekers only request withholding or deferral of removal in removal proceedings before an immigration judge

after

the credible fear process is completed, it is unclear when and how asylum seekers would be advised of the potential for removal to a third country and provided an opportunity to withdraw their request in order to prevent removal to the third country. Another commenter said asylum seekers will be confused by this advisal and feel coerced into abandoning any claim for protection out of fear that they might be removed to a country that they may never have been to, and where they have no support system or means of ensuring their safety or survival. Other commenters said the rule fails to include an exception for LGBTQ persons who may not be able to survive in a third country due to on-the-ground homophobia or transphobia, as it remains illegal or fundamentally dangerous to openly identify as LGBTQ (or even be perceived as LGBTQ) in over 80 countries around the world.

Response:

The Departments appreciate the comments concerning the rule's requirement that aliens be notified of the possibility of third country removal at the time of requesting withholding or deferral of removal and provided an opportunity to withdraw their request in order to prevent removal to the third country. However, after considering the comments, the Departments are not making changes to the final rule.

Once an asylum officer determines that an alien has not established the requisite fear with respect to potential eligibility for asylum and withholding of removal because they are subject to the danger to the security of the United States eligibility bars, if the alien had raised a fear of torture in the prospective country of removal, the asylum officer will assess whether it is more likely than not that the alien would be tortured in that country of removal, and thus potentially eligible for deferral of removal. Prior to that assessment, the alien would be notified of the possibility of removal to a third country and provided the opportunity to proceed to removal pursuant to INA 241(b), as appropriate.

The Departments do not view the process as coercive as suggested by the commenters. Rather, the process provides applicants with an opportunity to avoid an outcome that already exists.

Under current regulations, an alien who is granted withholding or deferral of removal is protected from removal only to a particular country, and remains subject to removal to other countries. 8 CFR 1208.30(f). This rule provides the alien with the option to return to his or her home country rather than to seek withholding or deferral protection, which could lead to such third country removal.

As stated previously, asylum officers are trained to research and consider country conditions information and engage in non-adversarial interview techniques designed to elicit all relevant information. Accordingly, the Departments are confident that officers will be able to access and consider all relevant information that may bear on an LGBTQ person's potential risk of torture in any particular country.

Similarities With the MPP Process

Comment:

Several commenters raised concerns related to the Migrant Protection Protocols (MPP), which implement DHS's authority under INA 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to return certain aliens temporarily to Mexico during the pendency of their section 240 removal proceedings. They argued that the Departments failed to acknowledge and discuss adverse legal precedent issued in the MPP context and claimed that this rule broadens the “disastrous humanitarian consequences” caused by the MPP. Specifically, one commenter noted that under the MPP, individuals must “affirmatively” express a fear of return to Mexico and then prove that it is “more likely than not” that they “will face persecution or torture if returned to Mexico,” the same standards used to avoid being sent to a third country under the NPRM. Further, they pointed out that in

Innovation Law Lab

Wolf,

the Ninth Circuit held that the MPP “does not comply with the United States' anti-refoulement obligations,” and the commenter claimed that the use of the same standards in the third country removal process also does not provide sufficient protection against non-refoulement.

951 F.3d 1073 (9th Cir. 2020).

Response:

This rule is in no way related to the MPP and does not constitute an expansion or modification of the MPP. The MPP implements DHS's authority under INA 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to return certain aliens temporarily to Mexico during the pendency of their section 240 removal proceedings. The MPP does not involve or implement any bars to eligibility for asylum or withholding of removal.

This rule, on the other hand, allows the Departments to consider em

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