Circumvention of Lawful Pathways

Federal RegisterFeb 23, 2023

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

[CIS No. 2736-22; Docket No: USCIS 2022-0016]

RIN 1615-AC83

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 5605-2023]

RIN 1125-AB26

Circumvention of Lawful Pathways

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security; Executive Office for Immigration Review, Department of Justice.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) are issuing a notice of proposed rulemaking (“NPRM” or “proposed rule”) in anticipation of a potential surge of migration at the southwest border (“SWB”) of the United States following the eventual termination of the Centers for Disease Control and Prevention's (“CDC”) public health Order. The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. It would do so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would be implemented on a temporary basis, the number of migrants expected to travel without authorization to the United States is expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances. Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the proposed rule to lead to a reduction in the numbers of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner.

DATES:

Comments must be submitted on or before March 27, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day.

ADDRESSES:

You may submit comments on this proposed rule through the Federal eRulemaking Portal:

https://www.regulations.gov.

Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the proposed rule and may not receive a response from the Departments. Please note that the Departments cannot accept any comments that are hand-delivered or couriered. In addition, the Departments cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs or USB drives. The Departments are not accepting mailed comments at this time. If you cannot submit your comment by using

http://www.regulations.gov,

please contact the Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 (not a toll-free call) for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

For DHS:

Daniel Delgado, Acting Director, Border and Immigration Policy, Office of Strategy, Policy, and Plans, U.S. Department of Homeland Security; telephone (202) 447-3459 (not a toll-free call).

For Executive Office for Immigration Review (“EOIR”):

Lauren Alder Reid, Assistant Director, Office of Policy, EOIR, Department of Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to submit comments on this action by submitting relevant written data, views, or arguments. To provide the most assistance to the Departments, comments should reference a specific portion of the proposed rule; explain the reason for any recommendation; and include data, information, or authority that supports the recommended course of action. Comments must be submitted in English, or an English translation must be provided. Comments submitted in a manner other than those listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the proposed rule and may not receive a response from the Departments.

Instructions:

If you submit a comment, you must submit it to DHS Docket Number USCIS 2022-0016. All submissions may be posted, without change, to the Federal eRulemaking Portal at

https://www.regulations.gov,

and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to the Departments. The Departments may withhold information provided in comments from public viewing that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at

https://www.regulations.gov.

Docket:

For access to the docket and to read background documents or comments received, go to

https://www.regulations.gov,

referencing the docket number listed above. You may also sign up for email alerts on the online docket to be notified when comments are posted or another

Federal Register

document is published.

II. Executive Summary

Economic and political instability around the world is fueling the highest levels of migration since World War II, including in the Western Hemisphere. Even while CDC's Title 42 public health Order has been in place, encounters at our SWB

—referring to the number of

times U.S. officials encounter noncitizens

attempting to cross the SWB of the United States without authorization to do so—have reached an all-time high, driven in large part by an unprecedented exodus of migrants from countries such as Colombia, Cuba, Ecuador, Nicaragua, Peru, and Venezuela. For the 30 days ending December 24, 2022, total daily encounters along the SWB consistently fluctuated between approximately 7,100 and 9,700 per day, averaging approximately 8,500 per day, with encounters exceeding 9,000 per day on 12 different occasions during this 30-day stretch.

Smuggling networks enable and exploit this unprecedented movement of people, putting migrants' lives at risk for their own financial gain.

Meanwhile, the current asylum system—in which most migrants who are initially deemed eligible to pursue their claims ultimately are not granted asylum in the subsequent EOIR removal proceedings

—has contributed to a growing backlog of cases awaiting review by asylum officers and immigration judges. The practical result of this growing backlog is that those deserving of protection may have to wait years for their claims to be granted, while individuals who are ultimately found not to merit protection may spend years in the United States before being issued a final order of removal. As the demographics of border encounters have shifted in recent years to include larger numbers of non-Mexicans—who are far more likely to make asylum claims—and as the time required to process and remove noncitizens ineligible for protection has grown (during which time individuals become eligible to apply for employment authorization), the apprehension of border crossers has had limited deterrent effect.

United States Government sources refer to the U.S. border with Mexico by various terms, including “SWB,” “the southern border,” “U.S.-Mexico border,” or “the land border with Mexico.” In some instances, these differences can be substantive, referring only to portions of the border, while in others they simply reflect different word choices. The “southern border” is both a land and maritime border extending from beyond California to the west to beyond Florida to the east. This proposed rule would apply along the entirety of the U.S. land border with Mexico, referred to in the regulatory text as the “southwest land border,” but the Departments use different terms in the preamble to describe the border. This is in large part to reflect the source material supporting the proposed rule, but the Departments believe that the factual

circumstances described in the preamble call for applying the proposed rule across the entirety of the U.S. land border with Mexico.

For purposes of this discussion, the Departments use the term “noncitizen” to be synonymous with the term “alien” as it is used in the Immigration and Nationality Act (“INA” or “Act”).

See

INA 101(a)(3), 8 U.S.C. 1101(a)(3);

Barton

Barr,

140 S. Ct. 1442, 1446 n.2 (2020).

DHS Office of Immigration Statistics (“OIS”) analysis of data downloaded from the U.S. Customs and Border Protection (“CBP”) Unified Immigration Portal (“UIP”) on January 4, 2023.

Miriam Jordan,

Smuggling Migrants at the Border Now a Billion-Dollar Business,

New York Times, July 26, 2022,

https://www.nytimes.com/2022/07/25/us/migrant-smugging-evolution.html

(last visited Dec. 13, 2022).

See

EOIR, Executive Office for Immigration Review Adjudication Statistics: Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim (Oct. 13, 2022),

https://www.justice.gov/eoir/page/file/1062976/download

(last visited Jan. 27, 2023). The EOIR adjudication outcome statistics report on the total number of cases originating with credible fear claims resolved on any ground in a fiscal year, without regard to whether an asylum claim was adjudicated. The asylum grant rate is a percentage of that total number of cases.

For noncitizens encountered at the SWB in FY 2014-FY 2019 who were placed in expedited removal, 6 percent of Mexican nationals made fear claims that were referred to USCIS for adjudication, compared to 57 percent of people from Northern Central America, and 90 percent of all other nationalities. OIS analysis of Enforcement Lifecycle data as of September 30, 2022. Of note, according to OIS analysis of historic EOIR and CBP data, there is a clear correlation since FY 2000 between the increasing time it takes to complete immigration proceedings and the lower share of noncitizens being removed, and the growth in non-Mexican encounters at the SWB. Both trends accelerated in the 2010s, as non-Mexicans became the majority of border encounters, and they have accelerated further since FY 2021, as people from countries other than Mexico and Northern Central America now account for the largest numbers of border encounters.

While the CDC's Title 42 public health Order

has been in effect, migrants who do not have proper travel documents have generally not been processed into the United States; they have instead been expelled to Mexico or to their home countries under the Order's authority without being processed under the authorities set forth in Title 8 of the United States Code, which includes the Immigration and Nationality Act (“INA” or “the Act”). When the Order is eventually lifted, however, the United States Government will process all such migrants who cross the border under Title 8 authorities, as statutorily required. At that time, the number of migrants seeking to cross the SWB without lawful authorization to do so is expected to increase significantly, unless other policy changes are made. Such challenges were evident in the days following the November 15, 2022, court decision that, had it not been stayed on December 19, 2022, would have resulted in vacatur of the Title 42 public health Order effective December 21, 2022.

Leading up to the expected termination date, migrants gathered in various parts of Mexico, including along the SWB, waiting to cross the border once the Title 42 public health Order was lifted.

According to internal Government sources, smugglers were also expanding their messaging and recruitment efforts, using the expected lifting of the Title 42 public health Order to claim that the border was open, thereby seeking to persuade would-be migrants to participate in expensive and dangerous human smuggling schemes. In the weeks between the November announcement that the Title 42 public health Order would be lifted and the December 19 stay order that kept the Title 42 public health Order in place, encounter rates jumped from an average of 7,700 per week (early November) to 8,600 per week (mid-December).

See

CDC, Public Health Determination and Order Regarding Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 87 FR 19941, 19941-42 (Apr. 6, 2022) (describing the CDC's recent Title 42 orders, which “suspend[ ] the right to introduce certain persons into the United States from countries or places where the quarantinable communicable disease exists in order to protect the public health from an increased risk of the introduction of COVID-19”).

See Huisha-Huisha

Mayorkas,

No. 21-100, 2022 WL 16948610 (D.D.C. Nov. 15, 2022),

cert. and stay granted, Arizona

Mayorkas,

No. 22A544, 2022 WL 17957850 (S. Ct. Dec. 27, 2022).

See, e.g.,

Leila Miller,

Asylum Seekers Are Gathering at the U.S.-Mexico Border. This Is Why,

L.A. Times (Dec. 23, 2022),

https://www.latimes.com/world-nation/story/2022-12-23/la-fg-mexico-title-42-confusion

(last visited Jan. 27, 2023).

OIS analysis of CBP UIP data downloaded January 13, 2023.

While a number of factors make it particularly difficult to precisely project the numbers of migrants who would seek to cross the border, without authorization, after the lifting of the Title 42 public health Order, DHS encounter projections and planning models suggest that encounters could rise to 11,000-13,000 encounters per day, absent policy changes and absent a viable mechanism for removing Cuban, Haitian, Nicaraguan, and Venezuelan (“CHNV”) nationals who do not have a valid protection claim.

Early data indicate that the recently announced enforcement processes, as applied to Cuban, Haitian, and Nicaraguan nationals,

which couple new parole

processes with prompt returns of those who cross the SWB without utilizing these processes, are deterring irregular migration from those countries,

thus yielding a decrease in encounter numbers. However, there are a number of factors that could contribute to these gains being erased after the lifting of the Title 42 public health Order, including the presence of several large diaspora populations in Mexico and elsewhere in the hemisphere, the unprecedented recent growth in migration from countries of origin not previously typical, the already large number of migrants in proximity to the SWB, and the general uncertainty surrounding the expected impact of the termination of the Title 42 public health Order on the movement of migrants. Thus, the high end of the estimated encounter rate remains a possibility for which the Departments need to prepare. In the absence of the policy changes included in the proposed rule, most people processed for expedited removal under Title 8 will likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum,

a scenario that would likely incentivize an increasing number of migrants to the United States and further increase the likelihood of sustained, high encounter rates.

DHS SWB Encounter Planning Model generated January 6, 2023. The complexity of international migration limits the Department's ability to precisely project border encounters under the best of circumstances. The current period is characterized by greater than usual uncertainty due to ongoing changes in the major migration source countries (

i.e.,

the shift from Mexico and Northern Central America to new countries of origin, discussed further below), the growing impact of climate change on migration, political instability in several source countries, the evolving recovery from the COVID pandemic, and uncertainty generated by border-related litigation, among other factors.

The DHS Office of Immigration Statistics (OIS) leads an interagency SWB Encounter Projections Working Group that generates encounter projections every 2-4 weeks, using the best data and modeling available. The enterprise encounter projection utilizes a mixed method blended model that combines a longstanding subject matter expert model produced by the CBP STAT Division with a Bayesian structural time series statistical model produced by OIS. The blended model is run through a standard statistical process (Monte Carlo simulations) to generate 68 percent and 95 percent confidence intervals for each of 33 separate demographic groupings. In light of the greater-than-usual uncertainty at the current time, the Department's planning models are designed to prepare the Department for all reasonably likely eventualities, and thereby focus on the upper bounds of the blended model's 68 and 95 percent confidence intervals.

See Part III.E of this preamble.

Encounters of Cubans, Haitians, and Nicaraguans between ports of entry at the southwest border declined from 928 on January 5 (the day of the announcement) to just 92 on January 22—a decline of 92 percent. Encounters of other noncitizens began to rebound from their typical seasonal drop, increasing by 40 percent during the same period. OIS analysis of CBP UIP data downloaded January 23, 2023.

See infra

Section III.C.

Such a high rate of migration risks overwhelming the Departments' ability to effectively process, detain, and remove, as appropriate, the migrants encountered. This would put an enormous strain on already strained resources; risk overcrowding in already crowded U.S. Border Patrol (“USBP”) stations and border ports of entry in ways that pose significant health and safety concerns; and create a situation in which large numbers of migrants—only a small proportion of whom are likely to be granted asylum—are subject to extreme exploitation by the networks that support their movements north.

In response to this urgent and extreme situation, the Departments are proposing a rule that would—

• account for the lawful, safe, and orderly means for noncitizens to enter the United States to seek asylum and other forms of protection,

• provide core protections for noncitizens who would be threatened with persecution or torture in other countries, and

• build upon ongoing efforts to share the responsibility of providing asylum and other forms of protection to deserving migrants with the United States' regional partners.

At the same time, the NPRM would address the reality of unprecedented migratory flows, the systemic costs those flows impose on the immigration system, and the ways in which a network of increasingly sophisticated smuggling networks cruelly exploit the system for financial gain. Specifically, this rule would establish a presumptive condition on asylum eligibility for certain noncitizens who fail to take advantage of the existing and expanded lawful pathways

to enter the United States, including the opportunity to schedule a time and place to present at a port of entry and thus seek asylum or other forms of protection in a lawful, safe, and orderly manner, or to seek asylum or other protection in one of the countries through which they travel on their way to the United States.

The term “lawful pathways,” as used in this preamble, refers to the range of pathways and processes by which migrants are able to enter the United States or other countries in a lawful, safe, and orderly manner and seek asylum and other forms of protection.

This effort draws, in part, on lessons learned from the successful Uniting for Ukraine (“U4U”)

and Venezuela parole processes,

as well as the recently implemented processes for Cubans, Haitians, and Nicaraguans,

under which DHS coupled a mechanism for noncitizens from these countries to seek entry into the United States in a lawful, safe, and orderly manner, with the imposition of new consequences for those who cross the border without authorization to do so—namely returns to Mexico.

Prior to the implementation of these processes, the Government of Mexico had not been willing to accept the return of such nationals; the Government of Mexico's decision to do so was predicated, in primary part, on the implementation of these processes.

See

DHS,

Uniting for Ukraine

(Sept. 16, 2022),

https://www.dhs.gov/ukraine

(last visited Dec. 13, 2022); DHS, Implementation of the Uniting for Ukraine Parole Process, 87 FR 25040 (Apr. 27, 2022).

See

DHS,

DHS Announces New Migration Enforcement Process for Venezuelans

(Oct. 12, 2022),

https://www.dhs.gov/news/2022/10/12/dhs-announces-new-migration-enforcement-process-venezuelans

(last visited Dec. 13, 2022);

see also

DHS, Implementation of a Parole Process for Venezuelans, 87 FR 63507 (Oct. 19, 2022).

These processes are further discussed in Part III.E of this preamble.

While the Title 42 public health Order has been in place, those returns have been made under Title 42. When the Title 42 public health Order is lifted, the affected noncitizens will instead be subject to removal to Mexico under Title 8.

Prior to the announcement of U4U, for example, thousands of Ukrainian migrants, fleeing their country in the wake of Russia's unprovoked war of aggression, arrived at ports of entry along the SWB seeking entry into the United States. A large informal encampment formed in Tijuana, Mexico, and Ukrainian encounters averaged just under 940 per day in the two weeks prior to the announcement of U4U.

After U4U launched and Ukrainian citizens with approved applications were provided the option to fly directly into the United States—coupled with the return to Mexico pursuant to the Title 42 public health Order of Ukrainians who sought to cross irregularly at the land border—daily SWB encounters of Ukrainians dropped to an average of just over 12 per day in the two weeks ending May 10, 2022.

OIS analysis of data pulled from CBP UIP on December 9, 2022.

Id.

Similarly, within a week of the announcement of the Venezuela parole process on October 12, 2022, the number of Venezuelans encountered at the SWB fell drastically, from an average of over 1,100 a day from October 5-11 to under 200 per day from October 18-24, and further declined to 67 per day as of the week ending November 29, 2022, and 28 per day the week ending January 22.

Similarly, the number of Cuban, Haitian, and Nicaraguan nationals encountered dropped significantly in the wake of the new processes being introduced, which coupled a lawful, safe, and orderly way for such nationals to seek parole in the United States with consequences (in the form of prompt returns to Mexico) for those who nonetheless crossed the SWB without authorization. Between the announcement of these processes on January 5, 2023, and January 21, the number of daily encounters between ports of entry of Cuban, Haitian, and Nicaraguan nationals dropped from 928 to 92, a 92 percent decline.

USBP encountered an average of 225 Venezuelans per day in November 2022 and 199 per day in December 2022. OIS analysis of data pulled from CBP UIP on January 23, 2023. Data are limited to USBP encounters to exclude those being paroled in through ports of entry.

OIS analysis of data pulled from CBP UIP on January 23, 2023.

This NPRM, which draws on these successful processes, would position the Departments to implement a temporary measure that would discourage irregular migration

by encouraging migrants to

use lawful, safe, and orderly pathways and allowing for swift returns of migrants who bypass lawful pathways, even after the termination of the Title 42 public health Order. It would respond to the expected increase of migrants seeking to cross the SWB following the termination of the Title 42 public health Order that would occur in the absence of a policy shift, by encouraging reliance on lawful, safe, and orderly pathways, thereby shifting the relevant incentives that otherwise encourage migrants to make a dangerous journey to the border. It would also be responsive to the requests of foreign partners that have lauded the sharp reductions in irregular migration associated with the aforementioned process for Venezuelans and have urged that the United States continue and build on this kind of approach, which couples processes for individuals to travel directly to the United States with consequences at the land border for those who do not avail themselves of these processes. The United States has, as noted above, already extended this model to Cuba, Haiti, and Nicaragua. The Departments assess that continuing to build on this approach is critical to our ongoing engagements with regional partners, in particular the Government of Mexico, regarding migration management in the region.

In this NPRM, “irregular migration” refers to the movement of people into another country without authorization.

Consonant with these efforts, the United States already has taken significant steps to expand safe and orderly options for migrants to lawfully enter the United States. The United States has, for example, increased and will continue to increase—

• refugee processing in the Western Hemisphere;

• country-specific and other available processes for individuals seeking parole for urgent humanitarian reasons or other reasons of significant public benefit; and

• opportunities to lawfully enter the United States for the purpose of seasonal employment.

In addition, once the Title 42 public health Order is terminated, the United States will expand implementation of the CBP One application (“CBP One app”), an innovative mechanism for noncitizens to schedule a time to arrive at ports of entry at the SWB, to allow an increasing number of migrants who may wish to claim asylum to request an available time and location to present and be inspected and processed at certain ports of entry, in accordance with operational limitations at each port of entry.

Use of this app protects migrants from having to wait in long lines of unknown duration at the ports of entry, and enables the ports of entry to manage the flows in a safe and efficient manner, consistent with their footprint and operational capacity, which vary substantially across the SWB. Once present in the United States, those who enter through this mechanism would be able to make claims for asylum and other forms of protection and would be exempted from this proposed rule's rebuttable presumption on asylum eligibility. They would be vetted and screened, and assuming no public safety or national security concerns, would be eligible to apply for employment authorization after crossing the border as they await resolution of their cases.

As of January 12, 2023, this mechanism is currently available for noncitizens seeking to cross SWB land ports of entry to request a humanitarian exception from the Title 42 public health Order.

See

CBP, Fact Sheet: Using CBP One

to Schedule an Appointment (last modified Jan. 12, 2023),

https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english

(last visited Jan. 13, 2023). Once the Title 42 public health Order is terminated, and the ports of entry open to all migrants who wish to seek entry into the United States, this mechanism will be broadly available to migrants in central and northern Mexico, allowing them to request an available time and location to present and be inspected and processed at certain ports of entry.

Under current employment authorization regulations, there is no waiting period before a noncitizen parolee in this circumstance may apply for employment authorization.

See

8 CFR 274a.12(c)(11).

These and other available pathways increase the accessibility of humanitarian protection and other immigration benefits in ways that provide a lawful, safe, and orderly mechanism for migrants to make their protection claims. Consistent with U4U and the CHNV processes, this proposed rule would also position the Departments to impose consequences on certain noncitizens who fail to avail themselves of the range of lawful, safe, and orderly means for seeking protection in the United States or elsewhere. Specifically, this proposed rule would establish a rebuttable presumption that certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum, if they traveled through a country other than their country of citizenship, nationality, or, if stateless, last habitual residence, unless they were provided appropriate authorization to travel to the United States to seek parole pursuant to a DHS-approved parole process; presented at a port of entry at a pre-scheduled time or demonstrate that the mechanism for scheduling was not possible to access or use; or sought asylum or other protection in a country through which they traveled and received a final decision denying that application. This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the noncitizen or a member of the noncitizen's family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder;

or satisfied the definition of “victim of a severe form of trafficking in persons” provided in 8 CFR 214.11. The presumption also would be rebutted in other exceptionally compelling circumstances, as the adjudicators may determine in the sound exercise of the judgment permitted to them under the proposed rule. Unaccompanied children would be excepted from this presumption.

The term “imminent” refers to the immediacy of the threat; it makes clear that the threat cannot be speculative, based on generalized concerns about safety, or based on a prior threat that no longer poses an immediate threat. The term “extreme” refers to the seriousness of the threat; the threat needs to be sufficiently grave, such as a threat of rape, kidnapping, torture, or murder, to trigger this ground for rebuttal.

The rebuttable presumption would be a “condition[ ]” on asylum eligibility, INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), (d)(5)(B), that would apply in affirmative and defensive asylum application merits adjudications, as well as during credible fear screenings. Individuals subject to the rebuttable presumption would remain eligible for statutory withholding of removal and protection under the regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85, 114.

With the availability to schedule a time and place to arrive at U.S. ports of entry and other lawful pathways, this proposed system is designed to protect against an unmanageable flow of migrants arriving at the SWB; ensure that those with valid asylum claims have an opportunity to have their claims heard, whether in the United States or elsewhere; enable the Departments to continue administering the immigration laws fairly and effectively; and reduce the role of exploitative transnational criminal organizations and smugglers.

The Departments propose that the rule would apply to noncitizens who enter the United States without authorization at the southwest land border on or after the date of termination of the Title 42 public health Order and before a specified sunset date, 24 months from the rule's effective

date. After the sunset date, the rule would continue to apply to such noncitizens during their Title 8 proceedings. The Departments intend that the rule would be subject to a review prior to its scheduled termination date, to determine whether the rebuttable presumption should be extended, modified, or sunset as provided in the rule.

Issuance of this rule is justified in light of the migration patterns witnessed in late November and December of 2022, and the concern about the possibility of a surge in irregular migration upon, or in anticipation of, the eventual lifting of the Title 42 public health Order. The Departments seek to obtain public comment on the proposal and to avoid any misimpression that migrants will be able to cross the border without authorization, and without consequence, upon the eventual lifting of the Order. Under this proposed rule the Departments would use their Title 8 authorities to process, detain, and remove, as appropriate, those who cross the SWB without authorization and do not have a valid protection claim.

The Departments are issuing this proposed role with a 30-day comment period because they seek to be in a position to finalize the proposed rule, as appropriate, before the Title 42 public health Order is lifted. The lifting of the Order could occur as a result of several different litigation and policy developments, including the vacatur of the preliminary injunction entered in

Louisiana

CDC,

No. 22-cv-885, 2022 WL 1604901 (W.D. La. May 20, 2022),

appeal pending,

No. 22-30303 (5th Cir.); the lifting of the stay entered by the Supreme Court in

Arizona

Mayorkas,

No. 22A544, 2022 WL 17957850 (U.S. Dec. 27, 2022); or “the expiration of the Secretary of HHS' declaration that COVID-19 constitutes a public health emergency,” 86 FR at 42829. The termination of the Secretary of HHS' declaration that COVID-19 constitutes a public health emergency is expected to occur on May 11, 2023 in light of the recent announcement that “[a]t present, the Administration's plan is to extend” the public health emergency to May 11 and then end it on that date, Office of Mgmt. & Budget, Exec. Office of the President, Statement of Administration Policy (Jan. 30, 2023),

available at https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-Res.-7.pdf.

The Departments are thus seeking to move as expeditiously as possible, while also allowing sufficient time for public comment. For similar reasons, the Departments may conclude that it is necessary to shorten or forgo the standard 30-day delay in the final rule's effective date. In addition, if, prior to the issuance of the final rule, the Title 42 public health Order is lifted or encounter rates rise significantly (even without the lifting of the Title 42 public health Order), the Departments intend to take appropriate action, consistent with the Administrative Procedure Act (“APA”), which may include issuance of a temporary or interim final rule similar to this NPRM while the Departments complete the notice-and-comment rulemaking process.

The Departments are requesting comments on all aspects of the NPRM and particularly welcome comments addressing the following issues:

• Whether the proposed duration of the rule should be modified, including whether it should be shorter, longer, or of indefinite duration;

• Whether the Departments should modify, eliminate, or add to the proposed grounds for necessarily rebutting the rebuttable presumption;

• Whether the Departments should modify, eliminate, or add to the proposed exceptions to the rebuttable presumption;

• Whether the proposed mechanisms for evaluating asylum, statutory withholding, and CAT claims should be retained or modified;

• Whether any further regulatory provisions should be added or amended to address the application of the rebuttable presumption in adjudications that take place after the rule's sunset date; and

• Whether the proposed rule appropriately provides migrants a meaningful and realistic opportunity to seek protection.

In addition, although the Departments have not identified any persons or entities with justifiable reliance interests in the status quo concerning eligibility for asylum—which is an entirely discretionary benefit—the Departments welcome comments on the existence of reliance interests and the best ways to address them.

III. Background

A. Migratory Trends

Political and economic instability, coupled with the lingering adverse effects of the COVID-19 global pandemic, have fueled a substantial increase in migration throughout the world. This global increase is reflected in the trends on our border, where we have experienced a sharp increase in encounters of non-Mexican nationals over the past two years, and particularly in the final months of 2022. Throughout the 1980s and into the first decade of the 2000s, encounters along the SWB routinely numbered in excess of one million per year, with USBP averaging 1.2 million encounters per year from Fiscal Year (“FY”) 1983 through FY 2006.

By the early 2010s, three decades of investments in border security and strategy contributed to reduced border flows, with USBP averaging fewer than 400,000 encounters per year from 2011-2018.

These gains were subsequently reversed, however, as USBP SWB encounters more than doubled between 2017 and 2019 to reach a 12-year high.

Following a steep drop in the first months of the COVID-19 pandemic, encounters almost doubled again in 2021 as compared to 2019, increased by an additional one-third between 2021 and 2022, and reached an all-time high of 2.2 million USBP SWB encounters in FY 2022.

Encounters in the first quarter of FY 2023 (October-December 2022) exceeded the same period in FY 2022 by more than a third, and non-Mexican encounters in this same period were up 61 percent over the previous year.

(See Figure 1, below.)

OIS analysis of historic USBP data. Encounter data prior to 2005 are only available for U.S. Border Patrol. All numbers in this paragraph are likewise therefore limited to USBP encounters.

Id.

As discussed in the following section, encounter data from March 2020 through the current data somewhat overstate flows to the border since repeat encounters have been markedly higher during the period that Title 42 expulsions have been completed.

OIS Persist data through December 31, 2022.

1. Changing Demographics

Shifts in migrants' demographics have accelerated the increase in flows. Border encounters in the 1980s and 1990s consisted overwhelmingly of single adults from Mexico, most of whom were migrating for economic reasons.

Beginning in the 2010s, a growing share of migrants have been from Northern Central America (“NCA”)

and, since the late 2010s, from countries throughout the Americas.

As the

make-up of border crossers has expanded from Mexican single adults to single adults and families from throughout the hemisphere (and beyond), the number of encounters has increased; those encountered also have been more likely to seek asylum and other forms of relief.

According to historic OIS Yearbooks of Immigration Statistics, Mexican nationals accounted for 96 to over 99 percent of apprehensions of persons entering without inspection between 1980 and 2000. On Mexican migrants from this era's demographics and economic motivations, see Jorge Durand et al., “The New Era of Mexican Migration to the United States,” 86

The Journal of American History,

no. 2, 518 (1999) (addressing the demographics and economic motivations of Mexican migrants from this era).

Northern Central America refers to El Salvador, Guatemala, and Honduras.

According to OIS Production data, Mexican nationals continued to account for 89 percent of total SWB encounters in FY 2010, with Northern Central Americans accounting for 8 percent and all

other nationalities for 3 percent. Northern Central Americans' share of total encounters increased to 21 percent by FY 2012 and averaged 46 percent in FY 2014-FY 2019, the last full year before the start of the COVID-19 pandemic. All other countries accounted for an average of 5 percent of total SWB encounters in FY 2010-FY 2013, and for 10 percent of total encounters in FY 2014-FY 2019.

The application of Title 42 authorities at the land border also has altered migratory patterns, in part by incentivizing individuals who are expelled—without being issued a removal order, which, unlike a Title 42 expulsion order, carries immigration consequences

—to try to re-enter, often multiple times.

For this reason, the growth in encounters since 2021 is best assessed by comparing unique encounters—defined as the number of individuals who are encountered in a given year, instead of the total number of encounters, which can include a single migrant who sought to enter multiple times and is counted as an encounter each time—in recent months to those in the pre-pandemic period of FY 2014-FY 2019.

For example, subject to certain exceptions, noncitizens ordered removed pursuant to expedited removal (INA section 235(b)(1), 8 U.S.C. 1225(b)(1)) or section 240 (8 U.S.C. 1229a) removal proceedings initiated at the time of arrival in the United States are inadmissible for five years after the date of removal. INA 212(a)(9)(A)(i), 8 U.S.C. 1182(a)(9)(A)(i). Noncitizens previously removed pursuant to expedited removal orders or section 240 removal orders who enter or attempt to re-enter the United States without being admitted are also inadmissible pursuant to section 212(a)(9)(C)(i)(II) of the INA, 8 U.S.C. 1182(a)(9)(C)(i)(II). Such noncitizens may be subject to reinstatement of such a prior order of removal upon subsequent illegal re-entry. INA 241(a)(5), 8 U.S.C. 1231(a)(5).

According to OIS analysis of OIS Persist Data through June 30, 2022, a total of 39 percent of noncitizens expelled under the Title 42 authority between March 2020 and May 2022 were re-encountered within one month, compared to 5 percent of those repatriated after issuance of a removal order issued pursuant to Title 8 authorities; and 12-month re-encounter rates were 47 percent for Title 42 expulsions compared to 14 percent for Title 8 repatriations. Persons expelled under the Title 42 authority were more likely to be re-encountered than those repatriated after issuance of a removal order issued pursuant to Title 8 authorities, regardless of citizenship or family status.

The period FY 2014-FY 2019 is chosen as the comparison period because these were the first years in which non-Mexicans consistently accounted for a large and growing share of SWB encounters. The period since FY 2021 focuses on

unique

encounters, defined as persons not previously encountered in the 12 months prior to the referenced encounter date, because Title 42 has contributed to much higher repeat encounter rates, as 28 percent of SWB encounters since April 2020 have been repeat encounters, where repeat encounters are defined as encounters of individuals previously encountered in the preceding 12 months, compared to 15 percent of SWB encounters in FY 2013 through February 2020. OIS Persist Dataset based on data through December 31, 2022. (Detailed data on repeat versus unique encounters are not available before FY 2013.)

The number of unique encounters increased sharply in FY 2021 to 1,126,888 (and 1,734,683 total encounters) from an average of 471,216 unique encounters (and 581,045 total encounters) per year in FY 2014-FY 2019.

Notably, both the number and percentage of unique encounters from countries other than Mexico and NCA contributed to a big share of this increase, rising sharply in FY 2021 to 322,123 (representing 29 percent of unique encounters), from an average of 40,549 per year (8 percent of unique encounters) in FY 2014-FY 2019.

This trend continued in FY 2022, with unique encounters reaching 1,741,506 (2,378,945 total encounters). This increase was largely driven by nationals of countries other than Mexico and NCA, accounting for 972,191 unique encounters (1,028,987 total encounters) in FY 2022 (56 percent of unique encounters; 43 percent of total encounters) and 424,530 unique encounters (442,932 total encounters) in the first three months of FY 2023 (71 percent of unique encounters; 62 percent of total encounters).

Migrant populations from these newer source countries have included large numbers of families and children.

OIS Persist Dataset based on data through December 31, 2022.

Id.

A total of 65 percent of unique NCA encounters and 40 percent of all other unique non-Mexican encounters were unaccompanied children or family unit individuals in FY 2021-FY 2023Q1, compared to 13 percent of unique Mexican encounters. OIS Persist Dataset based on data through December 31, 2022.

Much of this shift is driven by a significant increase in unique encounters of CHNV nationals, which jumped more than ten-fold from an average of 15,557 in FY 2014-FY 2019 to 169,436 in FY 2021, with total CHNV encounters increasing from an average of 33,095 to 184,716.

CHNV unique encounters increased sharply again in FY 2022 to 605,690 (626,410 total encounters), constituting 35 percent of all unique encounters in FY 2022 and 26 percent of total encounters that year.

Overall, unique encounters of CHNV nationals rose 257 percent between FY 2021 and FY 2022 (with total CHNV encounters rising 239 percent), unique encounters of Brazilians, Colombians, Ecuadorans, and Peruvians increased 100 percent (with total encounters increasing 56 percent), and unique encounters of Mexican and NCA nationals fell 4 percent (with total encounters falling 0.5 percent).

These trends continued in the first 3 months of FY 2023, with CHNV countries accounting for 40 percent of unique encounters October-December 2022 and Brazilians, Colombians, Ecuadorans, and Peruvians climbing to 19 percent.

(See Figure 2, below.)

OIS Persist Dataset based on data through December 31, 2022.

Id.

Of note, OIS utilizes a rigorous record matching methodology to generate unique encounter data, and the program is only run monthly upon receipt of CBP's official monthly encounter data. (The official encounter data are also only produced monthly after the real-time data go through extensive quality control.) OIS has only extended its person-level record matching back to 2013. For these reasons, unique encounter records are only available for encounters occurring between 2013 and December 2022. Most references in this preamble report on total encounter data, instead of unique encounter data, since it allows analysis of more recent numbers as well as longer historic comparisons. To the extent we are relying on unique encounters, the text will explicitly say so.

Id.

BILLING CODE 4410-30-P

Figure 1: SWB U.S. Border Patrol Encounters, FY 1960-FY 2022

EP23FE23.011

Note:

Figure is limited to U.S. Border Patrol encounters because Office of Field Operations data are unavailable prior to 2005. Border Patrol encounters account for 87 percent of SWB encounters since FY 2009.

Source: OIS analysis of CBP data and OIS Production data through December 31, 2022.

Figure 2: Total SWB Encounters by Selected Citizenships, FY 2010-December 2022

EP23FE23.012

Source: OIS Production data through December 31, 2022.

BILLING CODE 4410-30-C

2. Impact on Regional Partners

These migratory flows have affected every country throughout the Western Hemisphere. In the first nine months of 2022 alone, the Government of Colombia encountered over 170,000 Venezuelan migrants; as of September 2022, there were nearly 2.5 million Venezuelans living in Colombia, compared to 1.7 million in September 2021, representing an increase of approximately 800,000 in just one year.

From January through October 2022, the Government of Panama encountered approximately 210,000 irregular migrants having crossed through the Darién Gap—a dangerous 100-kilometer stretch of dense jungle between Colombia and Panama, which is particularly notorious for the violence of the human smugglers operating in lawless stretches of jungle

—with nearly 60,000 migrants crossing into Panama irregularly via the Darién Gap in October 2022 alone, a sharp increase compared to the almost 5,000 migrants encountered in January 2022.

The

Costa Rican migration agency similarly reports that 3,700 migrants were arriving every single day at Costa Rica's border with Panama in October 2022.

Meanwhile, the number of displaced Nicaraguans in Costa Rica doubled in an eight-month period, reaching more than 150,000 in February 2022, before the same figure increased to approximately 200,000 by June 2022.

Nicaraguans also claimed asylum in Mexico at three times the rate in 2022 as compared to 2021

and, as discussed above, are being encountered on our border at an unprecedented rate.

R4V, Regional Refugee and Migrant Response Plan 2023-2024 (Nov. 30, 2022),

https://www.r4v.info/en/rmrp2023-2024

(last visited Dec. 15, 2022); R4V, Refugees and Migrants from Venezuela (Dec. 12, 2022),

https://www.r4v.info/en/refugeeandmigrants

(last visited Dec. 15, 2022).

Refugees International,

Life on the Edge of the Darien Gap

(June 16, 2022)

https://www.refugeesinternational.org/reports/2022/6/16/life-on-the-edge-of-the-darien-gap

(last visited Dec. 15, 2022); United Nations Office on Drugs and Crime,

Abused and Neglected: A Gender Perspective on Aggravated Migrant Smuggling Offences and Response, https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf

(last visited Dec. 11, 2022).

Government of Panama,

Irregulares en Tránsito Frontera Panamá-Colombia 2022, https://

www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf

(last visited Dec. 11, 2022).

Michael D. McDonald,

The American Dream Is Over for Venezuelans Stranded in Costa Rica,

Bloomberg, Oct. 27, 2022,

https://www.bloomberg.com/news/articles/2022-10-27/american-dream-is-over-for-venezuelans-stranded-in-costa-rica

(last visited Dec. 13, 2022).

Boris Cheshirkov,

Number of Displaced Nicaraguans in Costa Rica Doubles in Less than a Year,

UNHCR, Mar. 25, 2022,

https://www.unhcr.org/news/briefing/2022/3/623d894c4/number-displaced-nicaraguans-costa-rica-doubles-year.html

(last visited Dec. 13, 2022); UNHCR,

Costa Rica Fact Sheet September 2022

(Oct. 30, 2022),

https://reliefweb.int/report/costa-rica/costa-rica-fact-sheet-september-2022

(last visited Dec. 13, 2022) (“As of June 30, 2022, Costa Rica was hosting 215,933 people of concern: of these, 11,205 are refugees and 204,728 asylum seekers, the majority Nicaraguans (89%).”).

See

Government of Mexico,

La COMAR en Números

(Dec. 2022),

https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf

(last visited Feb. 1, 2023).

Mexico has similarly experienced a sharp increase in irregular migration in recent months. In October 2022, the Government of Mexico encountered more than 50,000 irregular migrants, almost doubling the numbers encountered only a few months earlier.

This increase was driven largely by a dramatic rise in Venezuelan encounters, which rose from about 1,200 in February 2022 to more than 20,000 in October 2022.

In addition to Venezuela and the NCA countries, Mexico also saw consistently high volumes from a wide range of countries in the Western Hemisphere, including Brazil, Colombia, Cuba, Ecuador, Nicaragua, and Peru.

From January to October 2022, some 350,000 irregular migrants have been encountered in Mexico, which is already more than it encountered in all of calendar year 2021.

Government of Mexico,

Events of People in an Irregular Migratory Situation in Mexico by Continent and Country of Nationality, 2022

(Cuadro 3.1.1),

http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/CuadrosBOLETIN?Anual=2022&Secc=3

(last visited Dec. 11, 2022).

Id.

The increased flow of Venezuelans and Nicaraguans has posed a particular concern for the region, as neither government accepts the repatriation of their nationals at anywhere near the scale at which they are currently migrating. Colombia is hosting more than 2 million Venezuelans and has granted temporary protection to 1.5 million; Peru is hosting 1.5 million Venezuelans, including over 500,000 asylum seekers; Brazil and Chile are hosting 380,000 Haitians; and Costa Rica is hosting more than 200,000 Nicaraguans and recently announced its intention to grant Nicaraguans and Venezuelans temporary protection.

UNHCR,

Colombia Operational Update: January-February 2022

(Mar. 19, 2022),

https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022

(last visited Dec. 4, 2022); The White House,

Fact Sheet: The Los Angeles Declaration on Migration and Protection U.S. Government and Foreign Partner Deliverables

(June 10, 2022) (“L.A. Declaration Fact Sheet”),

https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/

(last visited Dec. 13, 2022); UNHCR,

Peru, https://reporting.unhcr.org/peru

(last visited Dec. 11, 2022); Migration Policy Institute,

Haitian Migration through the Americas: A Decade in the Making

(Sept. 30, 2021),

https://www.migrationpolicy.org/article/haitian-migration-through-americas

(last visited Dec. 13, 2022); Alvaro Murillo et al.,

Costa Rica Prepares Plan to Regularize Status of 200,000 Mostly Nicaraguan Migrants,

Reuters, Aug. 10, 2022,

https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/

(last visited Dec. 13, 2022).

3. Venezuela Process

As described above, on October 12, 2022, in an effort to address the significant increase in Venezuelan migrants, the United States and Mexico jointly announced a new process that was modeled on the successful U4U process, seeking to incentivize Venezuelans to use a new lawful process to come to the United States and disincentivize them from traveling to the U.S.-Mexico land border. Specifically, the Venezuela process allows eligible Venezuelan nationals, and their family members, to request an advance authorization to travel to the United States, which, if issued, allows them to travel to the United States to be considered for a case-by-case determination of parole by U.S. Customs and Border Protection (“CBP”) officers. The initiation of this process was paired with a decision by the Mexican Government to accept the return (under the Title 42 public health Order currently in place) of Venezuelans who sought to cross the U.S.-Mexico border irregularly. The United States Government is currently in close consultation with the Government of Mexico, as well as other foreign partners, to accept the return of third-country nationals under Title 8 authorities, including Venezuelan nationals, subsequent to the lifting of the Title 42 public health Order.

The Venezuela process has had a profound impact on the movement of Venezuelan migrants throughout the region. In the week leading up to the October 12, 2022, announcement, the United States was encountering approximately 1,100 Venezuelans between ports of entry at its SWB every day; numbers fell sharply within weeks and averaged 67 Venezuelans per day the week ending November 29, 2022, and 28 per day the week ending January 22, 2023.

Panama's daily encounters of Venezuelans also declined significantly in the wake of the parole process, falling some 88 percent, from 4,339 on October 16, 2022, to 532 by the end of that month. In October 2022, there were a total of 59,773 migrants who irregularly entered Panama; as a result of the sharp decline in Venezuelan migration, Panama encountered 16,632 migrants in November.

OIS analysis of data pulled from CBP UIP on January 23, 2023.

Government of Panama,

Irregulares en Tránsito Frontera Panamá-Colombia 2022, https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf

(last visited Dec. 11, 2022).

The success of the Venezuela process provided a model for the subsequently announced Cuban, Haitian, and Nicaragua processes and supports this proposed rule. These processes demonstrate that the availability of processes to enter the United States in an orderly manner, coupled with consequences imposed on those who bypass lawful pathways, can significantly change migratory patterns in ways that protect migrants from a dangerous journey, reduce the role of pernicious smuggling networks, and respond to the urgency of the moment, given the current and anticipated flows and capacity limitations at the SWB.

4. Processes for Cubans, Haitians, and Nicaraguans

On January 5, 2023, as part of the United States' continued efforts to decrease migration flows at the SWB and building upon the successes of the Venezuela process, DHS announced similar border enforcement measures to address the significant increase in encounters of Cuban, Haitian, and Nicaraguan nationals attempting to enter the United States without

authorization.

Further, DHS lifted the initial cap of 24,000 on the number of parolees eligible for the previously implemented Venezuela process and replaced it with a monthly cap of 30,000 travel authorizations spread across the four separate parole processes.

Although it has only recently been implemented, initial results indicate that the parole processes for Cuban, Haitian, and Nicaraguan nationals—which coupled the implementation of new pathways for nationals from these countries to enter the United States with the prompt return to Mexico of those who arrived at the SWB without advance authorization—have had a similar effect as the Venezuela process in disincentivizing migrants from these countries from making the dangerous irregular journey to United States. In the first weeks after the announcement, encounters of Cubans, Haitians, and Nicaraguans (“CHNs”) between ports of entry on the SWB declined from 928 on the day of the announcement (January 5, 2023) to just 92 on January 22—a decline of 92 percent. The decline in encounters of nationals of these countries occurred even as encounters of other noncitizens began to rebound from their typical seasonal drop.

See,

DHS, DHS Continues to Prepare for End of Title 42; Announces New Border Enforcement Measures and Additional Safe and Orderly Processes (Jan. 5, 2023),

https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and

(last visited Jan. 30, 2023).

See

88 FR 1279, 1280 (Jan. 9, 2023).

OIS analysis of CBP UIP data downloaded January 23, 2023. SWB encounters typically fall in the weeks between Christmas and mid-January, a pattern also observed in the 2022-2023 cycle. Total SWB encounters between ports of entry averaged 7,728 per day for December 1-24, 2022, and then dropped to an average of almost 4,900 per day between December 25, 2022 and January 1, 2023, including a low of 2,750 on the first. Similarly, encounters of Cubans, Haitians, and Nicaraguans between ports of entry averaged 2,828 per day December 1-24 and dropped to an average of just over 1,300 per day December 25-January 1, including a low of 467 on January 1. Yet while encounters of all groups rebounded after New Year's, CHN and non-CHN nationals have diverged since the announcement of the new processes, with encounters of non-CHN nationals increasing 67 percent January 1-22 and encounters of CHN nationals falling back below their New Year's day level.

Id.

5. Border Encounters Remain High, and Are Likely To Increase Further Absent Additional Policy Changes

Despite the sharp decrease in Venezuelan migration encountered at the U.S. border in the wake of implementation of the Venezuela process, the baseline number of total SWB encounters remained high throughout the end of 2022—and significantly higher than the historical average of less than 1,600 encounters per day from 2014-2019.

For the 30 days ending December 24, 2022, total daily encounters along the SWB consistently fluctuated between approximately 7,100 and 9,700, averaging approximately 8,500 per day, with encounters exceeding 9,000 per day on twelve different occasions during this 30-day period.

OIS Persist Dataset based on data through December 2022.

OIS analysis of data pulled from CBP UIP on January 4, 2023.

The number of migrants crossing the Darién Gap and heading north also remained high by historical standards, even after the number of Venezuelan migrants began to decline.

Almost 110,000 migrants traveled through the Darién Gap between 2010 and 2019.

The majority of these encounters occurred in 2015, 2016, and 2019, which saw 29,289, 30,055, and 22,102 encounters per year, respectively;

encounters were fewer than 10,000 all other years.

This is compared to over 16,000 in the month of November alone in 2022.

As of the end of November 2022, approximately 4,000 migrants crossed the Darién Gap per week on average from a wide range of countries, including most prominently Ecuador and Haiti,

and NGOs operating in Mexico reported that there were at least 125,000 migrants moving northward through Mexico that month as well, many of whom may seek to make their way to the SWB.

Government of Panama,

Baja Ingreso de Migrantes Irregulares a Panamá

(Oct. 28, 2022),

https://www.migracion.gob.pa/inicio/noticias/878-baja-ingreso-de-migrantes-irregulares-a-panama

(last visited Dec. 13, 2022).

Government of Panama,

Irregulares en Tránsito Frontera Panamá—Colombia 2010-2019, https://www.migracion.gob.pa/images/img2021/pdf/IRREGULARES%202010-2019%20actualizado.pdf

(last visited Dec. 8, 2022).

Id.

Government of Panama,

Irregulares en Tránsito Frontera Panamá-Colombia 2022, https://www.migracion.gob.pa/images/img2022/PDF/IRREGULARES_%20POR_%20DARI%C3%89N_NOVIEMBRE_2022.pdf

(last visited Dec. 11, 2022).

Id.

La Prensa Latina Bilingual Media,

NGOs Estimate 125K Migrants Moving North Through Southern Mexico

(Nov. 7, 2022),

https://www.laprensalatina.com/ngos-estimate-125k-migrants-moving-north-through-southern-mexico/

(last visited Dec. 13, 2022).

Meanwhile, the refusal of certain countries to accept the removal of their own nationals poses particular challenges. There was a significant increase in the number of encounters of Cuban and Nicaraguan nationals at the SWB in the fall of 2022—in part driven by the fact that, generally, neither country accepts removals of their nationals at the rate the United States seeks to remove them. Nationals from these two countries accounted for over 83,000 SWB encounters in the 30 days ending December 24, 2022—an average of approximately 2,770 a day, as compared to an average of approximately 1,570 a day in the 30 days preceding the April 1, 2022, CDC termination order.

Cubans and Nicaraguans together accounted for just over 32 percent of total encounters during the more recent time period.

These challenges prompted the January 5, 2023, adoption of new parole processes for Cuban, Haitian, and Nicaraguan nationals that combine the implementation of lawful, safe, and orderly pathways for nationals from those countries to seek to come to the United States, coupled with the prompt return of those who fail to use these lawful processes. This was made possible by the Government of Mexico's independent decision to start accepting returns of nationals of these countries—a decision that was in part contingent on the implementation of these new lawful processes for migrants from these countries to enter the United States without making the dangerous journey to the SWB. Within the first weeks of implementation, the numbers of Cuban, Haitian, and Nicaraguan nationals encountered at the SWB without authorization decreased significantly, and while these processes are in place, DHS anticipates that encounters of Cuban, Haitian, and Nicaraguan nationals will remain low, as compared to the numbers encountered at the end of 2022, akin to the results that were observed following the implementation of the Venezuela process. However, DHS anticipates that flows from all four countries would increase—perhaps significantly—in the absence of (1) a policy change to allow for swift removal of inadmissible noncitizens; and (2) the Government of Mexico's continued willingness to accept the returns of CHNV nationals, once the Title 42 public health Order is lifted.

OIS Persist Dataset based on data through October 2022, and OIS analysis of data pulled from CBP UIP on January 4, 2023.

OIS analysis of data pulled from CBP UIP on January 4, 2023.

Specifically, the DHS Office of Immigration Statistics planning model assumes that, without a meaningful policy change, border encounters could rise, and potentially rise dramatically—up to as high as 13,000 a day—subsequent to the lifting of the Title 42 public health Order.

As described below, DHS does not currently have the

infrastructure, personnel, or funding to sustain the processing of migratory flows of this magnitude in a safe and orderly manner over time.

DHS SWB Encounter Planning Model generated January 6, 2023.

6. The Importance of Quickly Returning Migrants Without a Legal Basis To Stay

DHS data shows that the ability to quickly remove individuals who do not have a legal basis to remain in the United States can reduce migratory flows—whereas, conversely, the inability or failure to do so risks yielding increased flows. CBP, for example, saw rapidly increasing numbers of encounters of Guatemalan and Honduran nationals from January 2021 until August 2021, when these countries began accepting the direct return of their nationals via Title 42. In January 2021, CBP encountered an average of 424 Guatemalan nationals and 362 Honduran nationals a day. By August 4, 2021, the 30-day average daily encounter rates had climbed to 1,249 Guatemalan nationals and 1,502 Honduran nationals—an increase of 195 percent and 315 percent, respectively. In the 60 days immediately following the resumption of return flights, average daily encounters fell by 38 percent for Guatemala and 42 percent for Honduras, as shown in Figure 3 below.

Since then, encounters for both countries have fluctuated but remain well below the pre-August 4, 2021, numbers; in November 2022, encounters averaged 481 per day for Guatemala and 433 per day for Honduras.

OIS analysis of OIS Persist Dataset based on data through August 31, 2022.

OIS Persist Dataset based on data through November 2022.

Figure 3: Daily Encounters of Guatemalan and Honduran Nationals, May 1-November 1, 2021

EP23FE23.013

Note:

Figure depicts 30-day average of daily encounters.

Source: OIS Persist Data as of September 30, 2022.

Returns have proven to be effective, but the Departments do not believe that they are sufficient. For instance, while the numbers of encounters of Guatemalan and Honduran nationals have fallen, in the 30 days ending December 24, 2022, CBP encountered an average of around 970 nationals from these two countries each day.

The provision of lawful processes for individuals who intend to migrate is also a critical component to reducing migratory flows, particularly when paired with a consequence for bypassing such lawful pathways—a model that has been proven to work by U4U and the Venezuela process in recent months, as detailed above.

OIS analysis of data pulled from CBP UIP on January 3, 2023.

7. The Pernicious Role of Smuggling Networks

As described above, migratory movements to the SWB are in many cases facilitated by, and actively encouraged by, human smuggling organizations that exploit migrants for profit. These smuggling networks have become more and more sophisticated over time, increasingly using social media to deceive migrants and lure them into initiating a dangerous journey during which they may be robbed and otherwise harmed, often with false promises about what will happen to them when they reach the United States.

Migrants often pay large sums to be brought through jungles, mountains, and rivers, frequently with small children in tow.

Tech Transparency Project,

Inside the World of Misinformation Targeting Migrants on Social Media

(July 26, 2022),

https://www.techtransparencyproject.org/articles/inside-world-misinformation-targeting-migrants-social-media

(last visited Dec. 6, 2022).

The Darién Gap is particularly notorious for the violence of the human smugglers operating in lawless stretches of the jungle.

As of October 2022, over 210,000 migrants have travelled to the SWB from South America through the Darién Gap in 2022 alone.

The International Organization for Migration (“IOM”) reports that as of October 2022, 30 individuals had died crossing the Darién Gap in 2022, including nine

children.

Women and children are particularly vulnerable to attack and injury; children are also at risk for diarrhea, respiratory diseases, dehydration, and other ailments that require immediate attention. The Panamanian Red Cross reports that 10 to 15 percent of migrants are sexually assaulted crossing the Darién Gap.

Upon reaching the border area, noncitizens seeking to cross into the United States usually pay transnational criminal organizations—including, increasingly, the Mexican drug cartels—to coordinate and guide them along the final miles of their journey.

This cartel-controlled movement of people across the border is a billion-dollar criminal enterprise, in which the migrants pay thousands of dollars to be smuggled in inhumane conditions.

United Nations Office on Drugs and Crime,

Abused and Neglected: A Gender Perspective on Aggravated Migrant Smuggling Offences and Response, https://www.unodc.org/documents/human-trafficking/2021/Aggravated_SOM_and_Gender.pdf

(last visited Dec. 11, 2022).

Government of Panama,

Irregular Migrants Transiting through Darién by Country, https://www.datosabiertos.gob.pa/dataset/ebb56d40-112f-455e-9418-ccd73560021d/resource/3fae4878-5068-4b80-b250-ee9e52b16510/download/irregulares-en-transito-por-Darién-por-pais-octubre-2022.pdf

(last visited Dec. 11, 2022).

Catalina Oquendo,

El Darién, la Trampa Mortal para los Migrantes Venezolanos,

El País, Oct. 11, 2022,

https://elpais.com/america-colombia/2022-10-11/el-darien-la-trampa-mortal-para-los-migrantes-venezolanos.html

(last visited Dec. 13, 2022).

Voz de América,

Los 10 Peligros de Cruzar el Darién, el “Infierno Verde” de las Américas

(Aug. 19, 2022),

https://www.vozdeamerica.com/a/los-10-peligros-de-cruzar-el-darien-el-infierno-verde-de-las-americas/6705004.html

(last visited Dec. 13, 2022).

Interpol,

People Smuggling, https://www.interpol.int/en/Crimes/People-smuggling

(last visited Dec. 11, 2022).

José de Córdoba et al.,

Smuggling Migrants to the U.S. is Big Business,

The Wall Street Journal, July 1, 2022,

https://www.wsj.com/articles/smuggling-migrants-to-the-u-s-is-big-business-11656680400

(last visited Dec. 13, 2022).

Tragically, a significant number of individuals lose their lives along the way. In FY 2022, more than 890 migrants died attempting to enter the United States between ports of entry across the SWB, an estimated 58 percent increase from FY 2021 (565 deaths) and a 252 percent increase from FY 2020 (254 deaths). First responders in Eagle Pass, Texas, estimate that about 30 bodies have been taken out of the Rio Grande River each month since March 2022. The number of migrants rescued by CBP has almost quadrupled over the past two years—from approximately 5,330 in FY 2020, to approximately 12,900 in FY 2021, to over 22,000 in FY 2022. CBP attributes these rising trends to the historic increases in overall USBP encounters between ports of entry over this time period, and the fact that these encounters are increasingly taking place in remote and rugged locations where the perils of trying to enter the United States are particularly acute. Meanwhile, these numbers do not account for the countless incidents of death, illness, assault, and exploitation that migrants experience well before they arrive at our border during the perilous journey north.

This proposed rule seeks to mitigate the role of would-be smugglers by incentivizing intending asylum seekers to utilize lawful, safe, and orderly pathways for seeking protection in the United States or elsewhere. For example, incentivizing migrants to schedule their arrival at land ports of entry minimizes the role of smugglers who seek to bring migrants through often dangerously hot and inhospitable locations between ports of entry. Collectively, the incentives and disincentives seek to minimize the irregular migratory flow to the border, and thus minimize the role—and profit—of the pernicious smuggling networks as a result.

B. Effects on Resources and Operations

The large numbers of migrants crossing the border has placed a significant toll on the United States Government, as well as the States and local communities where migrants are provisionally released. While the United States Government has taken extraordinary steps to meet the need, the current level of migratory movements and the anticipated increase in the numbers of migrants following the lifting of the Title 42 public health Order threaten to exceed the capacity to maintain the safe and humane processing of migrants who have crossed the border without authorization to do so. By channeling noncitizens to lawful pathways available away from the SWB, this proposed rule aims to discourage migrants from making the journey to the border in the first instance.

1. Capacity Constraints

The United States' border processing and immigration systems were not built to manage the nature and scale of the current irregular migration flows at the border and are operating under increasing strain. To respond to the accelerated increase in encounters along the SWB since January 2021, DHS has taken a series of extraordinary steps. CBP obligated more than $669 million to build and operate 10 soft-sided processing facilities along the SWB in FY 2022. Since 2021, DHS has deployed more than 10,000 additional Federal personnel from across the Department on temporary rotations to the SWB, to include CBP agents and officers, law enforcement personnel from other DHS components, and the DHS Volunteer Force. In addition, CBP has hired or contracted over 1,000 civilian USBP Processing Coordinators, who, among other roles, supplement processing operations. Yet, even with this increase in facilities and personnel, there are risks of overcrowding—challenges that will be exacerbated as encounters increase.

In addition, the Federal Emergency Management Agency (“FEMA”) has spent $260 million in FYs 2021 and 2022 on grants to non-governmental and state and local entities through the Emergency Food and Shelter Program—Humanitarian (“EFSP-H”) to assist with the reception and onward travel of migrants arriving at the SWB.

This spending is on top of $1.4 billion in FY 2022 appropriations that were earmarked for SWB contingency operations in response to the ongoing surge in migration.

Further, through FY 2023 appropriations, Congress made available up to $785 million “for the purposes of providing shelter and other services to families and individuals encountered by the Department of Homeland Security.”

EFSP Humanitarian Relief Table, created by DHS (Aug. 5, 2022).

Memorandum for Interested Parties, from Alejandro N. Mayorkas, Secretary of Homeland Security,

Re: DHS Plan for Southwest Border Security and Preparedness

at 19 (Apr. 26, 2022),

https://www.dhs.gov/sites/default/files/2022-04/22_0426_dhs-plan-southwest-border-security-preparedness.pdf

(last visited Jan. 30, 2023).

See

Public Law 117-328, div. F, tit. II, sec 211, 136 Stat. 4459, 4736 (2022).

Despite these efforts, DHS operations are subject to significant resource and capacity constraints. Of the nine SWB USBP sectors, four were over capacity, at 100 to 128 percent, with three more at capacity levels between 68 and 99 percent as of December 24, 2022, prior to the implementation of the parole processes for Cubans, Haitians, and Nicaraguans.

The impact has been particularly acute in certain border sectors. Increased flows are disproportionately occurring within the remote Del Rio, El Paso, and Yuma sectors. In FY 2022, the Del Rio, El Paso, and Yuma sectors encountered almost double (94 percent increase) the number of migrants as compared to FY 2021 and an eleven-fold increase over the average for FY 2014-FY 2019, primarily as a result of increases from CHNV countries.

As of December 24, 2022, these three sectors were each operating at the limits of, or over, their safe operating capacity, given space limitations, at 100 to 128 percent.

OIS analysis of data pulled from CBP UIP on December 24, 2022.

OIS Persist Dataset based on data through October 2022.

OIS analysis of data pulled from CBP UIP on December 24, 2022.

The focused increase in encounters in those three sectors has been particularly

challenging. The Yuma and Del Rio sectors are geographically remote, and because of that—until the past two years—have never been a focal point for large numbers of individuals entering without authorization between ports of entry. As a result, these sectors have limited infrastructure to process the elevated encounters that they are experiencing in a safe and orderly manner. The El Paso sector has relatively modern infrastructure for processing noncitizens encountered at the border, but is far away from other CBP sectors, which makes it challenging to move individuals elsewhere for processing during surges—a key component of CBP's ability to effectively manage migratory surges.

Meanwhile, many of the land ports of entry have limited space and capacity to process an influx of migrants, including those who may seek protection from removal, and are expected to quickly reach their safe operating capacity limits given the increase in migrants they are expected to encounter following the lifting of the Title 42 public health Order. Absent a lawful, safe, and orderly means for managing the flows, the ports of entry risk massive congestion: migrants would be forced to wait in long lines for unknown periods of time while exposed to the elements in order to be processed, in conditions that could also put the migrants at risk. This is of great concern to the Government of Mexico, because these lines would extend into Mexico and could adversely impact legitimate travel and trade, or lead to individuals camping out overnight or forming makeshift encampments on Mexican territory.

The capacity constraints are felt by DOJ as well. As the number of migrants arriving at the SWB has increased, so too have the number of Notices to Appear filed in EOIR's immigration courts and the number of pending cases.

In FY 2022, EOIR hired 104 immigration judges for a total of 634 and completed a record 312,486 cases. Yet the number of cases pending before the immigration courts has risen to nearly 1.8 million, as the courts were unable to keep pace with the incoming volume.

See

EOIR, Executive Office of Immigration Review Adjudication Statistics: Pending Cases, New Cases, and Total Completions (Oct. 13, 2022),

https://www.justice.gov/eoir/page/file/1242166/download

(last visited Feb. 1, 2023).

2. Decompression Efforts

In an effort to reduce overcrowding in sectors that are experiencing surges, DHS deploys lateral transportation, using buses and flights to move noncitizens to other sectors with capacity to process. In October 2022, USBP sectors along the SWB operated a combined 120 decompression buses containing almost 25,000 noncitizens along 480 routes to neighboring sectors. The majority of these buses are staffed by CBP personnel, which often requires pulling them off other key missions. In October 2022, USBP sectors also operated 113 lateral decompression flights, redistributing approximately 14,500 noncitizens to other sectors with additional capacity.

These assets are finite. Already in FY 2022, U.S. Immigration and Customs Enforcement (“ICE”) modified its ICE Air Operations' air charter contract to increase the number of daily-use aircraft from 10 to 12 to meet the increasing air transportation demands, and CBP has executed a new contract that will provide for flight hours equivalent to approximately four to eight additional decompression flights per day. And while DHS is actively working to obtain additional contracted transportation support, such contract support takes time to put in place, and is also costly and resource intensive.

As a result, use of DHS air resources to operate lateral flights limits DHS's capacity to operate international repatriation flights to receiving countries, leaving noncitizens who have been ordered removed in custody for longer, which presents challenges in light of DHS's limited detention space. This in turn reduces the numbers of noncitizens who can be referred for detention each day and, as appropriate, removed efficiently after receiving final orders of removal, including pursuant to expedited removal (“ER”), at any given point in time. Further increases would exacerbate the need for decompression flights and further reduce the amount of resources available to conduct removal flights, which in turn would further decrease the number of noncitizens who can be referred to ICE detention centers. This would occur at precisely the point in time at which an increase in removal flights and faster movement of migrants into expedited removal, out of detention, and onto removal flights, as appropriate, is needed in order to disincentivize a further increase in encounters, and to effectively, humanely, and efficiently remove those who do not claim a fear of persecution or torture or are otherwise found not to have a credible fear.

3. State, Local Government, and Non-Governmental Limits

Increased encounters of noncitizens at the SWB not only strain DHS resources, but also place additional pressure on States, local communities, and NGO partners both along the border and in the interior of the United States. These are key partners, providing shelter and other key social services to migrants and facilitating the onward movement of those conditionally released from DHS custody. In FY 2021 and FY 2022, Congress made approximately $260 million available through FEMA's EFSP-H in an order to help sustain these efforts.

As noted above, through FY 2023 appropriations, Congress made available up to $785 million “for the purposes of providing shelter and other services to families and individuals encountered by the Department of Homeland Security.”

However, State, local government, and NGO capacity to provide these critical supports is limited, and may reach its outer limit once the Title 42 public health Order is lifted in the absence of additional policy changes.

EFSP Humanitarian Relief Table, created by DHS (Aug. 5, 2022).

See

Public Law 117-328, div. F, tit. II, sec 211, 136 Stat. at 4736.

C. Systemic Issues

The U.S. asylum system was designed decades ago—when migratory flows were dramatically different than they are today—to serve the key goals of efficiently and fairly providing protection to noncitizens who are in the United States and are deserving of protection, while also efficiently denying and ultimately removing those who do are not deemed eligible for discretionary forms of protection and do not qualify for the mandatory relief of statutory withholding of removal or protection under the CAT. However, a systemic lack of resources and the changing nature, scope, and demographics of the migratory flows that the United States is encountering has made it difficult to achieve these key, twin goals.

By statute, certain inadmissible noncitizens may be placed in ER pursuant to section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). Those who are in ER and who indicate an intent to apply for asylum or a fear of persecution or torture in their country of removal are subject to what are referred to as “credible fear” interviews, pursuant to which an asylum officer assesses whether there is a “significant possibility . . . that the [noncitizen] could establish eligibility for asylum.” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v);

see also

8 CFR 235.3(b)(4)(i), 1235.3(b)(4)(i). Those found not to have a credible fear, including following immigration judge (“IJ”) review of a negative determination when requested, are subject to removal

without the full removal proceedings provided for by section 240 of the INA, 8 U.S.C. 1229a. Those who are found to have a credible fear are generally placed in removal proceedings under section 240 during which they can apply for asylum and other forms of relief and protection from removal.

Under an interim final rule issued in March 2022, and discussed below, some noncitizens found to have a credible fear are referred to an asylum officer for further review of the noncitizen's claims for asylum and other forms of protection, followed by IJ review if the noncitizen's asylum claim is denied.

See

Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) (“Asylum Processing IFR”).

There is, however, a significant disparity between the number of noncitizens who are found to have a credible fear and the number of noncitizens whom an IJ ultimately determines should not be removed at the end of the section 240 process because, for example, the noncitizen is found eligible for asylum or some other form of protection (such as withholding of removal or CAT). A full 83 percent of the people who were subject to ER and claimed fear from 2014 to 2019 were referred to an IJ for section 240 proceedings, but only 15 percent of those cases that were completed were granted asylum or some other form of protection.

Similarly, among cases referred and completed since 2013, significantly fewer than 20 percent of people found to have a credible fear were ultimately granted asylum from EOIR.

Ultimately, the number of individuals who are referred to an IJ at the beginning of the ER process greatly exceeds the number who are actually granted asylum or some other form of relief or protection.

OIS Enforcement Lifecycle data through September 30, 2022. Referrals to an IJ include positive credible fear findings by U.S. Citizenship and Immigration Services (“USCIS”) asylum officers, negative fear findings that are vacated by an IJ, and USCIS case closures that are placed in section 240 proceedings. Grants of relief or protection include grants of asylum, statutory withholding of removal, withholding or deferral of removal under the CAT regulations, cancellation of removal, and adjustment of status under various statutory provisions. While only 15 percent of all case completions result in relief or protection, OIS estimates that 28 percent of cases decided on their merits are grants of relief. Cases of relief decided on their merits include grants of asylum and other grants of status under statutory provisions (

i.e.,

excluding withholding of removal, deferral of removal, cancellation of removal, and claimed status reviews); and the percentage of cases decided on their merits is calculated by dividing relief on merits by the sum of relief on merits and removal orders on merits (

i.e.,

excluding removal orders issued

in absentia

). All data on EOIR outcomes for credible fear cases in this discussion are based on case outcomes for all noncitizens encountered on the SWB in FY 2014-FY 2019, with data reflecting final or most current outcomes as of September 30, 2022. In general, relatively few Mexican nationals claim credible fear when placed in expedited removal, so EOIR outcomes cited here would be similar if the records were limited to non-Mexican encounters.

See

EOIR, EOIR Adjudication Statistics: Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim (Oct. 13, 2022),

https://www.justice.gov/eoir/page/file/1062976/download

Meanwhile, the process for those who establish a credible fear is quite lengthy, with half of all cases taking more than four years to complete, and in many cases much longer. Indeed, 39 percent of all SWB credible fear referrals to EOIR from FY 2014 to FY 2019 remain in EOIR proceedings today.

As of FY 2022 year-end, more than a quarter (26 percent) of EOIR cases resulting from SWB encounters making credible fear claims from as long ago as FY 2014 remained in proceedings, one-third (33 percent) of EOIR cases resulting from FY 2016 encounters remained in proceedings, and almost half (48 percent) of EOIR cases resulting from FY 2019 encounters remained in proceedings.

100

Excluding

in absentia

orders, the mean completion time for EOIR cases completed in FY 2022 was 4.2 years.

101

OIS Enforcement Lifecycle data through September 30, 2022.

100

Id.

101

OIS analysis of DOJ EOIR data.

As a result, a large number of cases linger in a variety of incompletely resolved statuses for extended periods. For all SWB encounters from FY 2014 to FY 2019 that claimed fear and were referred to EOIR, only 9 percent had been granted relief by the end of FY 2022, and only 11 percent had an executed removal order—leaving 80 percent in some degree of limbo.

102

OIS Enforcement Lifecycle data through September 30, 2022. Here and throughout this discussion, references to removal orders and removal orders with or without confirmed removals include IJ grants of voluntary departures with or without confirmed departures.

As a result, those who have a valid claim to asylum in the United States often have to wait years for a final protection decision. Conversely, noncitizens ultimately found ineligible for asylum or another form of protection are likely to spend many years in the United States prior to being ordered removed.

In addition, the proportion and the absolute numbers of people claiming fear of persecution or torture in their home countries has increased dramatically in recent years. Prior to 2011, the overall share of total SWB encounters who were processed for expedited removal and claimed fear never exceeded 2 percent.

103

By 2013, with increasing numbers of non-Mexican encounters, the rate had climbed to 15 percent of people placed in ER making fear claims that were referred to USCIS asylum officers (36,025 referrals).

104

By comparison, in 2019—prior to the implementation of the Title 42 public health Order—further growth in non-Mexican encounters meant that 44 percent of people placed in ER claimed fear, resulting in 98,266 credible fear adjudications.

105

Despite this dramatic increase in the number of people claiming fear since 2013, the percent who are ultimately granted asylum or other forms of protection has remained static or even fallen over this period, with IJ asylum grant rates in FY 2013-FY 2017 consistently falling between 12 and 17 percent, down from 24-38 percent in FY 2008-FY 2012.

106

103

OIS analysis of historic CBP and USCIS data.

104

OIS analysis of Enforcement Lifecycle data through September 30, 2022.

105

Id.

106

OIS analysis of DOJ EOIR Review of Asylum Adjudication Statistics as of October 2022.

The fact that large numbers of migrants pass the credible fear screening, only to be denied relief or protection on the merits after a lengthy adjudicatory process, has high costs to the system in terms of resources and time.

Meanwhile, the fact that migrants can wait in the United States for years before being issued a final order denying relief, and that many such individuals are never actually removed, likely incentivizes migrants to make the journey north.

D. U.S. Efforts in Response

The United States has taken a number of measures in an attempt to offer alternative pathways to address the root causes of migration, improve the asylum system, and address the pernicious role of smugglers. These are important improvements, yet alone are insufficient in the near term to change the incentives of migrants, reduce the risks associated with current levels of irregular migration and the anticipated surge of migrants to the border, and protect migrants from human smugglers that profit from their vulnerability, necessitating this NPRM.

1. Asylum Processing IFR and Other Process Improvements

In March 2022, the Departments adopted an interim final rule (“IFR”) to shorten the time frame for adjudicating

asylum claims.

107

For noncitizens subject to that IFR, following a positive credible fear determination, asylum officers conduct an initial asylum merits interview instead of referring the case directly for removal proceedings before an IJ under section 240 of the INA, 8 U.S.C. 1229a. This creates multiple efficiencies, including using the information presented to the asylum officer in the credible fear interview as the asylum application, which eliminates the need for duplicative paperwork and processing time. If USCIS does not grant asylum, the individual is referred to EOIR for streamlined section 240 removal proceedings. The entire process—from credible fear claim to a final immigration court decision—is designed to take substantially less time than the average four years it takes to adjudicate asylum claims otherwise.

107

See

Asylum Processing IFR, 87 FR 18078.

That rule, however, is being phased in gradually, and the Departments do not yet have the capacity, and do not expect to have the capacity in the near term, to process the large number of migrants expected to cross the border through the system that rule establishes.

2. Process Improvements

The Departments are making a number of other process improvements as well. DHS is digitalizing many of the processes that make up the U.S. immigration system, thus enabling agencies to process migrants more rapidly, securely store documentation, and share information to inform real-time decision-making with significant time savings. Meanwhile, USCIS also has made significant strides in protecting against what would be even greater backlog growth by hiring new officers and establishing an agency-wide focus on operational efficiency. The Asylum Division has grown from 273 authorized asylum officer positions in 2013 to 1,024 authorized asylum officer positions in 2022. USCIS has also put in place a number of initiatives to increase the efficiency of its processes, including the November 2022 launch of online filing for the Form I-589 for affirmative asylum applicants, working with other DHS components to digitize the A-File (the file containing immigration-related records relating to a noncitizen), and conducting more than 34,211 video-assisted interviews. EOIR has made similar strides in addressing its pending caseload, through judicial and staff hiring, modernization of courtroom technology, and the ongoing digitalization of court files.

108

See, e.g.,

Executive Office for Immigration Review Electronic Case Access and Filing, 86 FR 70708 (Dec. 13, 2021) (EOIR final rule implementing electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals); EOIR Director's Memorandum 22-07, Internet-Based Hearings (Aug. 12, 2022),

https://www.justice.gov/eoir/page/file/1525691/download.

In addition, EOIR has created efficiencies by reducing barriers to immigration court. In that regard, EOIR has expanded the Immigration Court Helpdesk program to several additional courts, issued guidance on using the Friend of the Court model to assist pro se respondents, and reconstituted its pro bono liaison program at each immigration court.

109

The above measures promote efficiency as, where a noncitizen is represented, the IJ does not have to engage in time-consuming discussions at hearings to ascertain whether the noncitizen is subject to removal and potentially eligible for any relief. In addition, a noncitizen's counsel can assist the noncitizen in gathering evidence, can prepare the noncitizen to testify, and can work with DHS counsel to narrow the issues the IJ must decide.

109

See, e.g.,

EOIR Director's Memorandum 22-06, Friend of the Court (May 5, 2022),

https://www.justice.gov/eoir/page/file/1503696/download;

EOIR Director's Memorandum 22-01, Encouraging and Facilitating Pro Bono Legal Services (Nov. 5, 2021),

https://www.justice.gov/eoir/book/file/1446651/download.

While critically important, these process improvements are not, on their own, sufficient to respond to the significant resource needs associated with the increase in migrants anticipated following the lifting of the Title 42 public health Order.

3. Taking on the Smugglers

In June of 2021, DOJ established a law enforcement task force, Joint Task Force Alpha (“JTFA”), to marshal investigative and prosecutorial resources in partnership with DHS to enhance U.S. enforcement efforts against human smuggling and trafficking groups operating in Mexico and the NCA countries of Guatemala, El Salvador, and Honduras. Since then, the task force has made significant strides in its efforts to disrupt and dismantle dangerous human smuggling organizations.

110

JTFA's impact and results include contributing to 165 domestic and international arrests, 69 convictions, 45 defendants sentenced including significant jail time imposed for human smuggling-related crimes; substantial asset forfeiture including hundreds of thousands of dollars in cash, real property, vehicles, firearms, and ammunition; dozens of defendants indicted under seal pending arrest; and numerous pending extradition requests against foreign leadership targets located in NCA and Mexico.

111

110

DOJ Office of Public Affairs,

Attorney General Announces Initiatives to Combat Human Smuggling and Trafficking and to Fight Corruption in Central America

(June 7, 2021),

https://www.justice.gov/opa/pr/attorney-general-announces-initiatives-combat-human-smuggling-and-trafficking-and-fight

(last visited Dec. 8, 2022).

111

DOJ, Office of Public Affairs (“OPA”),

Eight Indicted in Joint Task Force Alpha Investigation and Arrested as Part of Takedown of Prolific Human Smuggling Network,

Department of Justice (Sept. 13, 2022),

https://www.justice.gov/opa/pr/eight-indicted-joint-task-force-alpha-investigation-and-arrested-part-takedown-prolific-human

(last visited Dec. 15, 2022); DOJ, OPA,

Two Guatemalan Nationals Plead Guilty to Human Smuggling Conspiracy Resulting in 2021 Death of Migrant in Odessa, Texas,

Department of Justice (Sept. 30, 2022),

https://www.justice.gov/opa/pr/two-guatemalan-nationals-plead-guilty-human-smuggling-conspiracy-resulting-2021-death-migrant

(last visited Dec. 15, 2022); U.S. Attorney for the District of Arizona,

Human Smuggling Coordinators Sentenced to 45 Months in Prison

(Aug. 31, 2022),

https://www.justice.gov/usao-az/pr/human-smuggling-coordinators-sentenced-45-months-prison

(last visited Dec. 15, 2022); U.S. Attorney for the Western District of Texas,

Defendants Indicted in Tractor Trailer Smuggling Incident That Resulted in 53 Deaths

(July 20, 2022),

https://www.justice.gov/usao-wdtx/pr/defendants-indicted-tractor-trailer-smuggling-incident-resulted-53-deaths

(last visited Dec. 15, 2022); DOJ, OPA,

Readout of Latest Justice Department Leadership Meeting on Joint Task Force Alpha's Anti-Human Smuggling and Trafficking Efforts

(June 13. 2022),

https://www.justice.gov/opa/pr/readout-latest-justice-department-leadership-meeting-joint-task-force-alpha-s-anti-human

(last visited Dec. 15, 2022); U.S. Attorney for the District of Arizona,

Three Individuals Arrested for Conspiracy to Transport and Harbor 86 Illegal Aliens from Mexico, Guatemala, and Honduras

(July 6, 2022),

https://www.justice.gov/usao-az/pr/three-individuals-arrested-conspiracy-transport-and-harbor-86-illegal-aliens-mexico

(last visited Dec. 15, 2022); DOJ, OPA,

Eight Defendants Indicted for Human Smuggling and Drug Conspiracy Offenses

(May 10, 2022),

https://www.justice.gov/opa/pr/eight-defendants-indicted-human-smuggling-and-drug-conspiracy-offenses

(last visited Dec. 15, 2022); DOJ, OPA,

DOJ-DHS-INL in Mexico Host Foreign Law Enforcement Partners at Regional Human Smuggling Roundtable Event

(April 6, 2022),

https://www.justice.gov/opa/pr/doj-dhs-inl-mexico-host-foreign-law-enforcement-partners-regional-human-smuggling-roundtable

(last visited Dec. 15, 2022); DOJ, OPA,

Man Sentenced for Role in International Human Smuggling Conspiracy

(Sept. 28, 2021),

https://www.justice.gov/opa/pr/man-sentenced-role-international-human-smuggling-conspiracy

(last visited Dec. 15, 2022); DOJ, OPA,

Law Enforcement Cooperation Between United States and Mexico Leads to Mexican Takedown of Significant Human Smugglers

(Mar. 10, 2022),

https://www.justice.gov/opa/pr/law-enforcement-cooperation-between-united-states-and-mexico-leads-mexican-takedown

(last visited Dec. 15, 2022); U.S. Attorney for the Western District of Texas,

Cuban National Sentenced to Over 38 Years in Prison for Drug Trafficking and Other Crimes after Using His Border Ranch as a Criminal Corridor

(Mar. 9, 2022),

https://www.justice.gov/usao-wdtx/pr/cuban-national-sentenced-over-38-years-prison-drug-trafficking-and-other-crimes-after

(last visited Dec. 15, 2022); U.S. Attorney for the District of Arizona,

Human

Smuggling Coordinator Pleads Guilty

(Feb. 3, 2022),

https://www.justice.gov/usao-az/pr/human-smuggling-coordinator-pleads-guilty

(last visited Dec. 15, 2022); U.S. Attorney for the District of Arizona,

Human Smugglers Plead Guilty to Transporting and Harboring Over 100 Illegal Aliens

(Nov. 18, 2021),

https://www.justice.gov/usao-az/pr/human-smugglers-plead-guilty-transporting-and-harboring-over-100-illegal-aliens

(last visited Dec. 15, 2022); DOJ, OPA,

Attorney General Merrick B. Garland Delivers Remarks at the Meeting of the President's Interagency Task Force to Monitor and Combat Trafficking in Persons

(Jan. 25, 2022),

https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-meeting-president-s-interagency-task

(last visited Dec. 15, 2022); DOJ, OPA,

Readout of Justice Department Leadership Meeting on Human Smuggling and Trafficking Networks

(Nov. 5, 2021),

https://www.justice.gov/opa/pr/readout-justice-department-leadership-meeting-human-smuggling-and-trafficking-networks

(last visited Dec. 15, 2022).

In April 2022, DHS launched an unprecedented “Counter Human Smuggler” campaign designed to disrupt and dismantle human smuggling networks, which included an increase in resources for JTFA and other interagency law enforcement efforts. The Counter Human Smuggler campaign focuses on disrupting key aspects of these criminal operations, including financial assets, and ability to travel and conduct commerce. DHS has committed over $60 million to the effort and surged more than 1,300 personnel in Latin America and along the SWB.

112

Working closely with our foreign partners, DHS has achieved unprecedented results. The results so far have included a 500 percent increase in disruption activities in the first six months, including over 5,000 arrests and 5,500 disruptions of smuggling infrastructure (

e.g.,

raiding smuggler stash houses, impounding tractor trailers that are used to smuggle migrants, and confiscating smugglers' information technology).

113

Despite this monumental effort to counter human smuggling, it alone will not decrease the daily number of encounters at the SWB to a manageable level—these efforts must be combined with other efforts, including an increase in available lawful pathways throughout the region and consequences for migrants who bypass them.

112

DHS,

FACT SHEET: Counter Human Smuggler Campaign Update

(Oct. 6, 2022),

https://www.dhs.gov/news/2022/10/06/fact-sheet-counter-human-smuggler-campaign-update-dhs-led-effort-makes-5000th

(last visited Dec. 13, 2022).

113

Id.

E. Lawful Processes for Individuals To Access the United States

The United States Government has committed to enhancing legal pathways and processes for migrants in the region to access protection and opportunity in the United States. The United States has taken meaningful steps to realize this commitment, including by announcing significant increases to H-2 temporary worker visas and refugee processing in the Western Hemisphere, and by introducing innovative parole processes for nationals of certain countries in the region. By expanding these pathways and processes, the United States has provided migrants an alternative to paying smuggling organizations that profit from taking migrants on a dangerous journey to the SWB, and has provided incentives for migrants to seek an alternative and safer pathway to the United States.

1. Process for Venezuelan Nationals

As described above, on October 12, 2022, the United States Government announced a new process for Venezuelans that created a strong incentive for Venezuelans to wait in safe places to access an orderly process to come to the United States. The process is initiated by a U.S.-based supporter, who agrees to provide financial support to a Venezuelan beneficiary located outside the United States—including those still in Venezuela—thus providing a mechanism for such individuals to enter the United States without having to resort to a dangerous trek north. In order to be eligible, Venezuelan beneficiaries could not have entered the United States, Mexico, or Panama unlawfully following the date of announcement of the process. If they pass the requisite screening and vetting, they are provided advance authorization to travel by air to the United States and, if authorized to travel, are subject to a case-by-case parole determination once they arrive. Beneficiaries of this process can apply for asylum and other applicable immigration benefits and are eligible to immediately apply for employment authorization through an electronic process created by USCIS.

114

The Venezuela process has dramatically impacted migratory flows throughout the region, and as of January 22, 2023, more than 14,300 Venezuelans have come to the United States lawfully pursuant to this process.

115

114

DHS Announces New Migration Enforcement Process for Venezuelans, supra.

115

OIS analysis of CBP data provided January 23, 2023.

By coupling the provision of a safe and orderly lawful process that allows Venezuelan nationals and their immediate family members to come to the United States for a period of up to two years and receive work authorization with a consequence for those who enter unlawfully between the ports of entry, the process has provided critical protections while also yielding a reduction in migratory flows.

116

DHS recently announced changes to the process.

117

Specifically, DHS:

116

See supra

Part III.A.3 of this preamble.

117

See

88 FR 1279 (Jan. 9, 2023).

• Lifted the limit of 24,000 total travel authorizations and replaced it with a monthly limit of 30,000 travel authorizations spread across this process and the separate and independent parole processes for Cubans, Haitians, and Nicaraguans; and

• Added an exception that will enable Venezuelans who cross without authorization into the United States at the SWB and are subsequently permitted a one-time option to voluntarily depart or voluntarily withdraw their application for admission to maintain eligibility to participate in the parole process.

118

Id.

at 1280.

2. Processes for Nationals of Cuba, Haiti, and Nicaragua

As noted above, the United States Government recently initiated similar processes for nationals of Cuba, Haiti, and Nicaragua.

119

Like the process for Venezuelans, the processes for Cubans, Haitians, and Nicaraguans allows U.S.-based supporters to apply on behalf of an individual or family to be considered, on a case-by-case basis, for advanced authorization to travel and a temporary period of parole for up to two years for urgent humanitarian reasons or significant public benefit.

120

The parole is for an initial period of two years and parolees may apply for work authorization immediately after entering the country. Like the Venezuela process, implementation of the processes for Cubans, Haitians, and Nicaraguans was and remains contingent on the Government of Mexico's decision to accept the return (under Title 42) or removal (under Title 8) of such migrants who enter irregularly at the SWB.

119

See

88 FR 1255 (Jan. 9, 2023).

120

Id.

at 1256.

3. Additional Processes for Haitian Nationals

The United States is working to increase number of Haitians granted immigrant visas and parole in support of family reunification. The Department of State has resumed adjudicating immigrant visas (“IVs”) on December 12 and has committed to surge consular officers to eliminate the IV case backlog in early 2023.

4. Additional Processes for Cuban Nationals

In September 2022, the United States Government announced the resumption

of the Cuban Family Reunification Parole (“CFRP”) program, which allows approved Cubans to enter the United States as parolees,

121

thereby allowing USCIS to work through the backlog of over 12,500 CFRP applications. This program has been paused since 2017, but over 125,000 Cubans were authorized to travel for the purpose of parole from 2004 to 2017. Beneficiaries must be currently living in Cuba and be petitioned by a U.S. citizen or LPR family member who was invited to participate. Potential beneficiaries cannot apply for themselves.

122

121

USCIS,

USCIS Resumes Cuban Family Reunification Parole Program Operations

(Sept. 9, 2022),

https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations

(last visited Nov. 30, 2022).

122

USCIS,

The Cuban Family Reunification Parole Program

(last updated Sept. 1, 2022)

https://www.uscis.gov/humanitarian/humanitarian-parole/the-cuban-family-reunification-parole-program

(last visited Dec. 13, 2022).

By statute, Cuban parolees may apply for LPR status after a year of residence in the United States. Cuban Adjustment Act, Public Law 89-732, 80 Stat. 1161 (1966) (8 U.S.C. 1255 note). In addition, beginning in early 2023, the U.S. Embassy in Havana will resume full immigrant visa processing for the first time since 2017, which will increase the pool of noncitizens eligible for CFRP.

123

Department of State, Los Angeles Declaration on Migration and Protection Lima Ministerial Meeting: Fact Sheet (“Lima Ministerial Fact Sheet”) (last updated Oct. 6, 2022),

https://www.state.gov/los-angeles-declaration-on-migration-and-protection-lima-ministerial-meeting/

(last visited Dec. 14, 2022); USCIS,

USCIS Resumes Cuban Family Reunification Parole Program Operations

(Sept. 1, 2022),

https://www.uscis.gov/newsroom/alerts/uscis-resumes-cuban-family-reunification-parole-program-operations

(last visited Dec. 13, 2022).

5. Labor Pathways

The United States Government recognizes that many migrants encountered at the SWB are seeking employment opportunities and often hoping to provide for their families via remittances sent home. The United States welcomes, through lawful pathways, noncitizen workers who play a vital role in the economy, particularly in the light of concentrated labor shortages. DHS and its interagency partners have been working diligently over the past few years to expand recruitment of workers for H-2 visas from the Western hemisphere and facilitate their entry into the United States. In FY 2022, for example, the Unites States Government issued more than 19,000 H-2 visas to Guatemalans, Hondurans, and Salvadorans—a 94 percent increase over the 9,796 H-2 visas in FY 2021.

124

In addition, on December 15, 2022, DHS and the Department of Labor (“DOL”) issued a temporary final rule that made an additional 64,716 H-2B temporary nonagricultural worker visas available to employers in FY 2023, in addition to the 66,000 H-2B visas that are normally available each fiscal year. The H-2B supplemental includes an allocation of 20,000 visas to workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador.

125

124

Lima Ministerial Fact Sheet.

125

See

87 FR 76816, 76817, 76819 (Dec. 15, 2022).

In addition, the United States Agency for International Development (“USAID”) has worked directly with labor ministries in Central America to dramatically decrease the time it takes to match H-2 workers to employers' requests—from 55 days to 16 days in Guatemala, from 24 days to nine days in Honduras, and from 42 days to 30 days in El Salvador.

126

Certain U.S. embassies and consulates prioritize H-2 visa applications, to the point at which these consular sections can process them in two business days.

127

While not a substitute for asylum, these available processes respond to the needs of many of those encountered at the border who are in fact seeking economic opportunity, not asylum.

126

USAID,

Remarks of Administrator Power at the Discussion On Opportunities and Incentives For Expanded H-2A Visa Recruitment with USDA Secretary Vilsack

(Sept. 30, 2022),

https://www.usaid.gov/news-information/speeches/sep-30-2022-remarks-administrator-power-discussion-opportunities-and-incentives

(last visited Jan. 31, 2023).

127

Id.

6. Expanded Refugee Processing in the Region

In the past two years, the United States Government has taken steps to significantly expand refugee admissions from Latin America and the Caribbean through the U.S. Refugee Admissions Program (“USRAP”). In FY 2022, the United States Government resettled 2,485 refugees from the Western Hemisphere, a 521 percent increase over FY 2021.

128

In June 2022, the United States made a commitment under the Los Angeles Declaration on Migration and Protection to resettle 20,000 refugees from the Americas during Fiscal Years 2023 and 2024.

129

In fulfillment of this commitment, significant resources are being put in place to expand regional refugee processing, which, coupled with the process improvements, are expected to result in thousands more individuals applying for, and being granted, refugee status.

128

Lima Ministerial Fact Sheet.

129

L.A. Declaration Fact Sheet.

Globally, the United States Government has dedicated significant efforts to rebuilding, strengthening, and modernizing USRAP, including by implementing actions stemming from a major review of USRAP processing across the United States Government. In FY 2022, the United States significantly improved the efficiency and responsiveness of refugee applicant screening and vetting through coordination with the National Vetting Center (“NVC”). Increased efficiency and vetting through the NVC, combined with new technologies and innovation, will allow the United States Government to further improve efficiencies in screening and vetting.

130

Department of State,

Report to Congress on Proposed Refugee Admissions for Fiscal Year 2023

(Sept. 8, 2022),

https://www.state.gov/report-to-congress-on-proposed-refugee-admissions-for-fiscal-year-2023/

(last visited Dec. 13, 2022).

7. Scheduling Arrivals at Ports of Entry

The United States is also expanding the implementation of an innovative new process that uses technology—the CBP One app, a free, public-facing application that can be downloaded on a mobile phone—to significantly increase the number of individuals, including those who may be seeking asylum, that CBP can process at land border ports of entry.

Upon the lifting of the Title 42 public health Order, individuals will be able to use the CBP One app to schedule a time to arrive at a port of entry in order to be processed into the United States in a safe and orderly manner, and once in the United States, able to make claims for protection. CBP has conducted extensive testing of the application to ensure it can receive a high volume of requests at one time, works on both iOS and Android, is user-friendly, and employs clear and accessible language.

The use of CBP One is expected to create efficiencies that will enable CBP to safely and humanely expand its ability to process noncitizens at land border ports of entry, including those who may be seeking asylum. First, the provision of advance biographical and biometric information by the noncitizen, as required by the application (in the form of basic applicant information and provision of a live photograph)—all information that would otherwise be collected upon arrival at the port of entry—is expected to save processing time, thereby allowing CBP officers to process more individuals than would otherwise be possible. CBP anticipates that use of the CBP One app will enable CBP to schedule appointments for—and

process—multiple times more noncitizens at the border than the pre-pandemic (2014-2019) daily number of inadmissible noncitizens seeking to enter the United States at land border ports of entry. Second, these time savings are expected to reduce the time undocumented individuals spend in CBP custody, which further facilitates a safe and orderly process, reduces the risks associated with overcrowding, and promotes the health and safety of the DHS workforce and noncitizens alike.

Individuals who schedule a time to arrive at a port of entry using CBP One, present themselves at that time, and are processed into the United States, would not be subject to the rebuttable presumption on asylum eligibility created by this proposed rule, whether in an application for asylum or during a credible fear screening.

While the Departments are aware of concerns regarding the accessibility of the CBP One app, both the app and the proposed rule are designed to take account of such accessibility concerns. CBP has observed that the overwhelming majority of noncitizens processed at ports of entry have smartphones. A CBP survey of migrants at the Hidalgo and Brownsville Ports of Entry on December 11, 2022, substantiates that observation—finding that 93 of 95 migrants of all ages had smartphones. In addition, third parties may assist noncitizens to navigate the app and input the required information to schedule a time and place to arrive at a port of entry. The Departments also have proposed to address those who nonetheless continue to have access concerns, by excepting from the rebuttable presumption individuals who arrive at ports of entry without a pre-scheduled time and place if the noncitizen demonstrates by a preponderance of the evidence that it was not possible to access or use the CBP One app due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.

In sum, by enabling migrants to schedule a time to arrive at a port of entry, DHS anticipates being able to minimize wait times, ultimately process more migrants, and channel arrivals to ports according to their capacity and ability to safely operate. This will help protect CBP officers' ability to effectively carry out their other critical missions of facilitating trade and travel at the ports of entry.

F. Increased Access to Protection and Other Pathways in the Region

Recognizing that managing migration is a collective responsibility, the United States has been working closely with countries throughout the region to prioritize and implement a strategy that advances safe, orderly, legal, and humane migration, including access to international protection for those in need, throughout the Western Hemisphere. This focus is exemplified in three policy-setting documents: the U.S. Strategy for Addressing the Root Causes of Migration in Central America;

131

the Collaborative Migration Management Strategy (“CMMS”);

132

and the Los Angeles Declaration on Migration and Protection (“L.A. Declaration”), which was endorsed in June 2022 by 21 countries.

133

The CMMS and the L.A. Declaration support a collaborative and regional approach to migration and forced displacement, pursuant to which countries in the hemisphere commit to implementing programs to stabilize communities hosting migrants and asylum seekers, providing increased regular pathways and protections for migrants and asylum seekers residing in or traveled through their countries, and humanely enforcing existing immigration laws. The L.A. Declaration specifically lays out the goal of collectively “expand[ing] access to regular pathways for migrants and refugees.”

134

131

The White House,

FACT SHEET: Strategy to Address the Root Causes of Migration in Central America

(July 29, 2021),

https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-strategy-to-address-the-root-causes-of-migration-in-central-america/

(last visited Dec. 13, 2022).

132

The White House,

FACT SHEET: The Collaborative Migration Management Strategy

(July 29, 2021),

https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-the-collaborative-migration-management-strategy/

(last visited Dec. 13, 2022).

133

Department of Homeland Security, Los Angeles Declaration on Migration and Protection (June 10, 2022),

https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023,

(last visited Nov. 30, 2022).

134

Id.

To further L.A. Declaration commitments, the Department of State's Bureau of Population, Refugees, and Migration (“PRM”) and USAID announced $314 million in new funding for humanitarian and development assistance for refugees and vulnerable migrants across the hemisphere, including support for socio-economic integration and humanitarian aid for Venezuelans in 17 countries of the region.

135

And on September 22, 2022, PRM and USAID announced nearly $376 million in additional humanitarian assistance, which will provide essential support for vulnerable Venezuelans within Venezuela, as well as urgently needed assistance for migrants, refugees, and host communities across the region, further contributing to stabilization to address humanitarian crises in the region.

136

135

Department of State,

Additional $314 Million for U.S. Humanitarian Response to the Venezuela Regional Crisis

(June 10, 2022),

https://www.state.gov/additional-314-million-for-u-s-humanitarian-response-to-the-venezuela-regional-crisis/

(last visited Dec. 13, 2022).

136

USAID,

The United States Announces Nearly $376 Million in Additional Humanitarian Assistance for People Affected by the Ongoing Crisis in Venezuela and the Region

(Sept. 22, 2022),

https://www.usaid.gov/news-information/press-releases/sep-22-2022-the-us-announces-nearly-376-million-additional-humanitarian-assistance-for-people-affected-by-ongoing-crisis-in-venezuela

(last visited Dec. 13, 2022).

Already there have been dividends from these efforts, as countries throughout the region have made substantial improvements to their protection systems, offering migrants meaningful new avenues to access temporary protection, domestic job markets, and public benefits such as health care and education. For example, as of 2021, Mexico is the third highest recipient of asylum claims in the world and the Government of Mexico has announced substantial increases to its labor visa programs over the past two years to help those seeking protection enter the labor market.

137

Costa Rica announced its intention to provide protected status to more than 200,000 displaced Nicaraguans.

138

And Colombia is working to provide temporary protected status to more than 2 million displaced Venezuelans.

139

137

L.A. Declaration Fact Sheet; International Rescue Committee,

Asylum Seekers in Mexico Need Support to Join the Labor Market and Rebuild Their Lives, IRC and Citi Foundation Respond with a Project

(Dec. 7, 2022),

https://www.rescue.org/press-release/asylum-seekers-mexico-need-support-join-labor-market-and-rebuild-their-lives-irc-and

(last visited Dec. 13, 2022).

138

https://reliefweb.int/report/colombia/colombia-operational-update-january-february-2022Alvaro

Murillo et al.,

Costa Rica Prepares Plan to Regularize Status of 200,000 Mostly Nicaraguan Migrants,

Reuters, Aug. 10, 2022,

https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/

(last visited Dec. 13, 2022).

139

L.A. Declaration Fact Sheet.

The following descriptions are illustrative of the efforts being taken by countries in the region, all of which are parties to the 1951 United Nations Convention relating to the Status of Refugees (“Refugee Convention”) or the 1967 Protocol relating to the Status of Refugees (“Refugee Protocol” or “Protocol”)

140

and the Convention Against Torture.

141

The Departments recognize that not all the options below

are viable for each migrant or asylum seeker, depending upon their individual circumstances. However, a location that may be unsafe for one person may not only be safe for, but offer a much-needed refuge to, others. While some of the countries below are the origin for sizable numbers of asylum seekers in the region, they also demonstrably provide protection for others who do consider those countries to be safe options where they are free from persecution or torture. Many such countries have stepped up in significant ways to address the unprecedented movement of migrants throughout the hemisphere—which has created a humanitarian challenge for almost every country in the region—by providing increased access to protection.

140

1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268.

141

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85, 114.

Mexico:

The Government of Mexico has made notable strides in strengthening access to international protection through its Mexican Refugee Assistance Commission (“COMAR”), and as a result has now emerged as one of the top countries receiving asylum applications in the world.

COMAR now has staffing and field presence in seven COMAR offices and representation at three additional National Migration Institute offices.

142

According to the United Nations High Commissioner for Refugees (“UNHCR”), nearly 60,000 asylum seekers were assisted by a legal network comprising more than 100 lawyers and paralegals in 2021, and the Federal Public Defender's Office provides additional support to people with asylum claims before COMAR.

143

Applicants who do not qualify for asylum in Mexico are automatically considered for complementary protection if they possess a fear of harm in their country of origin, or if there is reason to believe that they will be subjected to torture or to cruel, inhuman, or degrading treatment, but do not meet the refugee definition. Complementary protection allows these beneficiaries to regularize their status.

144

142

COMAR witnessed a historically high level of asylum applications in 2021 with 129,791 cases—a level that was maintained through 2022, with 118,478 applications. Government of Mexico,

La COMAR en Números

(Dec. 2022),

https://www.gob.mx/cms/uploads/attachment/file/792337/Cierre_Diciembre-2022__31-Dic.__1.pdf

(last visited Feb. 1, 2023). Of the 419,337 individuals who have applied for asylum from COMAR from 2013 through the end of 2022, COMAR has granted asylum to 92,030 of these individuals.

Id.

143

United Nations High Commissioner for Refugees,

Protection and Solutions in the Pandemic

at 33 (2022),

https://www.acnur.org/6261d3ab4.pdf

(last visited Dec. 17, 2022); MIRPS,

MIRPS in Mexico, https://mirps-platform.org/en/mirps-by-country/mirps-in-mexico/

(last visited Dec. 17, 2022).

144

Government of Mexico,

Ley sobre Refugiados, Protección Complementaria y Asilo Político

(Jan. 27, 2011),

https://www.gob.mx/cms/uploads/attachment/file/211049/08_Ley_sobre_Refugiados__Protecci_n_Complementaria_y_Asilo_Pol_tico.pdf

(last visited Dec. 17, 2022).

In 2021, COMAR received nearly 130,000 asylum applications—almost double the number of applications it processed in 2019, and the third most of any country in the world, after the United States and Germany.

145

Of those applications in 2021, COMAR granted asylum in 72 percent of cases; an additional two percent of applicants were granted complementary protection.

146

The average case takes 8-12 months to adjudicate.

147

With United States Government funding and the support of international organizations, Mexico also has substantially increased its Local Integration Program, which relocates and integrates individuals granted asylum in safe areas of Mexico's industrial corridor. These individuals are then matched with jobs and provided apartments, and their children are enrolled in local schools. In May 2022, the program reached the milestone of reintegrating its 20,000th asylum seeker in Mexico.

148

And in June 2022, Mexico committed to support local labor integration for an additional 20,000 asylees over the next three years.

149

145

Lizbeth Diaz,

Mexico Asylum Applications Surge in 2021, Haitians Top List,

Reuters, Jan. 3, 2022,

https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/

(last visited Dec. 13, 2022); TeleSUR English,

Mexico was the Third Country with the Highest Number of Asylum Applications in 2021,

YouTube (Apr. 22, 2022),

https://www.youtube.com/watch?v=zD1jVg8CJ9s

(last visited Dec. 13, 2022).

146

Lizbeth Diaz,

Mexico Asylum Applications Surge in 2021, Haitians Top List,

Reuters, Jan. 3, 2022,

https://www.reuters.com/world/americas/mexico-asylum-applications-nearly-double-2021-haitians-top-list-2022-01-03/

(last visited Dec. 13, 2022).

147

Refugees International,

Mexico's Use of Differentiated Asylum Procedures: An Innovative Approach to Asylum Processing

(July 20, 2021),

https://www.refugeesinternational.org/reports/use-of-differentiated-asylum-procedures-an-innovative-approach-to-asylum-processing-#_ftn5

(last visited Dec. 13, 2022).

148

UNHCR,

Más de 20.000 Reubicaciones como Parte de los Esfuerzos de Integración de Personas Refugiadas en México

(May 25, 2022),

https://www.acnur.org/noticias/press/2022/5/628e4b524/mas-de-20000-reubicaciones-como-parte-de-los-esfuerzos-de-integracion-de.html

(last visited Dec. 13, 2022).

149

L.A. Declaration Fact Sheet.

It is also notable that that the Government of Mexico has become a regional leader in providing labor pathways for individuals who are seeking economic opportunity. Mexico has committed to growing the Border Visitor Work Card program—which allows unlimited entry and exit for Guatemalans and Belizeans to cross Mexico's southern border and work in Southern Mexican states—from approximately 3,500 beneficiaries a year to 10,000-20,000 beneficiaries per year.

150

Mexico also announced the launch of a new temporary labor program for 15,000-20,000 Guatemalan workers. This will be expanded to Honduran and Salvadoran workers in the medium term and highlights the priority that the Government of Mexico is placing on providing lawful mechanisms for migrants to access opportunity, thus reducing the incentive to resort to irregular migration.

151

150

Government of Mexico, Press Release,

Mexico to Expand Labor Mobility Programs and Integrate Refugees into its Labor Market

(June 10, 2022),

https://www.gob.mx/sre/prensa/mexico-to-expand-labor-mobility-programs-and-integrate-refugees-into-its-labor-market?idiom=en

(last visited Dec. 16, 2022); L.A. Declaration Fact Sheet.

151

Unidad de Política Migratoria,

Boleti0301;n Mensual de Estadísticas Emigratorias

(Oct. 2022),

http://www.politicamigratoria.gob.mx/es/PoliticaMigratoria/Boletines_Estadisticos

(last visited Dec. 14, 2022); L.A. Declaration Fact Sheet.

Guatemala:

Over the past two years, the Government of Guatemala has taken key steps to continue to develop its asylum system. In 2021, the Guatemalan Migration Institute (“IGM”) announced that it established the Refugee Status Recognition Department (“DRER”) to better receive and process asylum applications, in line with the concept of regional responsibility sharing to manage migration.

152

DRER is a specialized branch of IGM that has been created solely to receive asylum claims—a key improvement from its prior practice, where intake was not specialized for asylum seekers. The Government of Guatemala also partnered with the United States Government and international organizations, including UNHCR, IOM, and the United Nations International Children's Emergency Fund to establish a series of Attention Centers for Migrants and Refugees in Guatemala City, Tecun Uman, and Quetzaltenango.

153

These centers, located in key locations across Guatemala, provide individuals an

opportunity to have their protection, humanitarian, and economic needs evaluated in order to provide appropriate services and referrals. Since their inception, more than 32,000 individuals have accessed these centers.

154

152

Government of Guatemala Ministry of Foreign Affairs, Comunicado,

Guatemala Fortalece Acción Institucional en Esfuerzo Regional por Atención y Dignificación de Refugiados con Apoyo de ACNU Guatemala

(Feb. 9, 2021),

https://prensa.gob.gt/guatemala-fortalece-accion-institucional-en-esfuerzo-regional-por-atencion-y-dignificacion-de-0

(last visited Dec. 13, 2022).

153

The White House,

FACT SHEET: Update on the Collaborative Migration Management Strategy

(April 20, 2022),

https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/20/fact-sheet-update-on-the-collaborative-migration-management-strategy/

(last visited Dec. 15, 2022).

154

Id.

In 2019 and 2020, IGM received just under 500 asylum applications per year; however, that number doubled to 1,054 in 2021. As of March 2022, IGM had already received nearly 300 applications in 2022 and granted asylum to 590 individuals.

155

In addition, with support from the United States Government, UNHCR has helped Guatemala streamline the issuance of work permits for refugee and asylum seekers from 15 to 4 business days.

156

155

Instituto Guatemalteco de Migración,

Información Sobre Personas Solicitantes y Refugiadas en Guatemala: Enero 2002-Marzo 2022

(Mar. 2022),

https://igm.gob.gt/wp-content/uploads/2022/04/Informe-con-Graficos-Marzo-2022.pdf

(last visited Dec. 13, 2022).

156

Government of Guatemala,

Extranjeros Podrán Solicitar Permiso de Trabajo En Línea

(Feb. 28, 2022),

https://www.mintrabajo.gob.gt/index.php/noticias/356-extranjeros-podran-solicitar-permiso-de-trabajo-en-linea

(last visited Dec. 15, 2022).

Belize:

Belize also has taken meaningful steps to expand protection for migrants. In December 2021, the Government of Belize announced an amnesty program for asylum seekers who registered before March 31, 2020 (but whose cases have not been adjudicated), and irregular migrants who have lived in the country before December 31, 2016.

157

Additionally, migrants can qualify for other reasons tied to their societal connections to Belize, such as having a Belizean child, marrying a Belizean, or completing school in Belize and continuing to reside in Belize. Recipients are immediately granted permanent residence with a path to citizenship.

158

UNHCR reports that, as of October 2022, a total of 4,130 individuals (primarily Guatemalans, Hondurans and Salvadorans) have been granted asylum in Belize.

159

157

Government of Belize,

Announcement of Amnesty 2022

(Dec. 7, 2022),

https://www.pressoffice.gov.bz/announcement-of-amnesty-2022/

(last visited Dec. 8, 2022).

158

Id.

159

UNHCR,

Fact Sheet: Belize September-October 2022

(Nov. 28, 2022),

https://data.unhcr.org/en/documents/details/97161

(last visited Dec. 13, 2022).

Costa Rica:

Costa Rica has demonstrated its commitment to providing humanitarian and other protections to asylum seekers and displaced migrants over the past two years. It is currently hosting roughly 300,000 Nicaraguan nationals who have fled deteriorating economic and security conditions in that country—a number that constitutes about 75 percent of Costa Rica's migrant population.

160

As recently as September 2022, Costa Rican officials reported more than 200,000 pending applications and another 50,000 people waiting for their appointment to make a formal application. Nicaraguans account for nearly 9 out of 10 applicants.

161

160

Nicaragua,

CIA World Factbook

(Dec. 2, 2022),

https://www.cia.gov/the-world-factbook/countries/nicaragua/#:~:text=Today%20roughly%20300%2C000%20Nicaraguans%20are,seasonally%20for%20work%2C%20many%20illegally

(last visited Dec. 15, 2022).

161

Moises Castillo,

Fleeing Nicaraguans strain Costa Rica's asylum system,

Associated Press, Sept. 2, 2022,

https://apnews.com/article/covid-health-elections-presidential-caribbean-52044748d15dbbb6ca706c66cc7459a5

(last visited Dec. 15, 2022).

The Government of Costa Rica recently announced its intention to regularize the status of more than 200,000 mostly Nicaraguan migrants, providing them with access to jobs and healthcare as part of the process.

162

In addition, the Government of Costa Rica committed in its National Action Plan for the Comprehensive Regional Protection and Solutions Framework to “establish complementary protection or other mechanisms to guarantee the non-refoulement principle for people who do not meet the requirements to be recognized as refugees but should not be returned to their country of origin, because of reasonable risk of suffering harm.”

163

162

Alvaro Murillo et al.,

Costa Rica Prepares Plan to Regularize Status of 200,00 Mostly Nicaraguan Migrants,

Reuters, Aug. 10, 2022,

https://www.reuters.com/world/americas/costa-rica-prepares-plan-regularize-status-200000-mostly-nicaraguan-migrants-2022-08-10/

(last visited Dec. 13, 2022).

163

MIRPS National Action Plan: Belize, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Panama

https://globalcompactrefugees.org/sites/default/files/2021-04/MIRPS%20National%20commitments.pdf

(last visited Dec. 16, 2022).

On March 15, 2022, following extensive diplomatic engagement, the United States and the Government of Costa Rica signed a migration arrangement, the first such agreement in the region. This agreement outlines both countries' mutual commitment to work collaboratively to manage migration and expand legal pathways and access to protection.

164

Furthermore, through the L.A. Declaration, Costa Rica committed to renewing the temporary complementary protection category scheme for migrants of Cuba, Nicaragua, and Venezuela.

165

Making true on its commitment in the L.A. Declaration, Costa Rica has established a Temporary Complementary Protection Program, also known as a Special Temporary Category (“STC”), for Cuban, Nicaraguan, and Venezuelan migrants who applied for asylum between January 1, 2010, and September 30, 2022, and desire to withdraw their applications in lieu of permission to remain lawfully in Costa Rica, work, and receive other social services in the country. STC holders will be permitted to apply for residency after five years.

164

DHS,

Readout of Secretary Mayorkas's Visit to Mexico and Costa Rica

(Mar. 15, 2022),

https://www.dhs.gov/news/2022/03/16/readout-secretary-mayorkass-visit-mexico-and-costa-rica

(last visited Dec. 13, 2022); U.S. Embassy in Costa Rica,

United States and Costa Rica Sign Migration Arrangement

(Mar. 17, 2022),

https://cr.usembassy.gov/united-states-and-costa-rica-sign-migration-arrangement/

(last visited Dec. 13, 2022).

165

L.A. Declaration Fact Sheet.

Colombia:

Colombia has emerged as one of the leaders in the Western Hemisphere—and the world—in its response to the unprecedented surge in irregular migration from Venezuela. On February 8, 2021, the Government of Colombia announced an innovative program to provide temporary protected status for 10 years to Venezuelans residing in Colombia as of that date, as well those who enter the country and register through official ports of entry over the next two years. This form of complementary protection provides Venezuelan migrants with government identity documents, allowing them to work legally, access public and private services, and integrate and contribute to Colombia's economy and society.

166

UNHCR,

Temporary Protection Status in Colombia (November 2021)

(Dec. 3, 2021),

https://reliefweb.int/report/colombia/temporary-protection-status-colombia-november-2021-0

(last visited Dec. 13, 2022).

More than 2.3 million Venezuelans have registered for this complementary protection, and as of December 2022, the Government of Colombia had approved documents to provide temporary legal status to over 1.6 million Venezuelans and delivered them to nearly 1.5 million Venezuelans.

167

The new Petro Administration in Colombia has affirmed its commitment to continuing these efforts, and Colombia is working to expand measures that promote integration of these migrants in Colombian society.

167

Government of Colombia,

Visibles: Estado Temporal de Protección, https://www.migracioncolombia.gov.co/visibles

(last visited Dec. 15, 2022).

Ecuador:

The Government of Ecuador is hosting more than 500,000 displaced Venezuelans and has worked to meaningfully expand protection for migrants in recent months.

168

Ecuador has received nearly 12,000 asylum applications containing over 60,000 applicants since 2017 and granted

asylum to 12,643 individuals and complementary protection to another 195 individuals through mid-2022.

169

On September 1, 2022, it launched the first phase of its registration process, which will enable irregular migrants to gain a temporary resident permit—opening online registration to an estimated 120,000 Venezuelans who hold or previously held a regular migration status and all unaccompanied minors. More than 68,500 individuals registered within the first week. The second phase opened on November 16, 2022, to approximately 100,000 non-Venezuelan migrants (the majority of whom are Colombian) who entered regularly. As of November 25, 2022, more than 89,000 individuals had registered and over 22,000 have already received their temporary residency visa. The third phase will open February 17, 2023, to an estimated 350,000 Venezuelans who entered irregularly.

168

UNHCR,

Ecuador: Monthly Update October 2022

(Nov. 10, 2022),

https://reporting.unhcr.org/document/3742

(last visited Dec. 13, 2022).

169

UNHCR,

Ecuador: Monthly Update October 2022

(Nov. 10, 2022),

https://reporting.unhcr.org/document/3742

(last visited Dec. 13, 2022); UNHCR,

Refugee Data Finder; Asylum Applications, https://www.unhcr.org/refugee-statistics/download/?url=Lzen78

(last visited Dec. 13, 2022); UNHCR,

Refugee Data Finder; Asylum Decisions, https://www.unhcr.org/refugee-statistics/download/?url=U7qmaT

(last visited Dec. 13, 2022).

Canada:

Canada operates a well-known Temporary Foreign Worker Program and expected to welcome 50,000 agricultural workers from Mexico, Guatemala, and the Caribbean in 2022.

170

In 2021, Canada admitted 61,735 workers specifically in the agricultural sector, 44 percent of whom were from Mexico and 23 percent from Guatemala.

171

This is in addition to its refugee resettlement program, which has received 17,687 referrals from the Western Hemisphere in 2022, of which 5,020 have been granted refugee status in Canada so far.

172

170

L.A. Declaration Fact Sheet.

171

Statistics Canada,

Countries of Citizenship for Temporary Foreign Workers in the Agricultural Sector

(June 13, 2022),

https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3210022101

(last visited Dec. 13, 2022).

172

Immigration and Refugee Board of Canada,

Claims by Country of Alleged Persecution 2022 (January to September)

(Nov. 22, 2022),

https://www.irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2022.aspx

(last visited Dec. 13, 2022).

IV. Description of the Proposed Rule

A. Rebuttable Presumption of Ineligibility for Asylum and Exceptions

Pursuant to section 208(b)(1)(A), (b)(2)(C), (d)(5)(B) of the INA, 8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B), the Departments are proposing a condition on asylum eligibility, in the form of a new rebuttable presumption of ineligibility for asylum in proposed 8 CFR 208.33 and 8 CFR 1208.33 for certain noncitizens who enter the United States at the southwest land border. Under this NPRM, this rebuttable presumption would apply to certain noncitizens entering the United States at the southwest land border without documents sufficient for lawful admission as described in section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), on or after the date of termination of the Title 42 public health Order, after traveling through a country that is party to the 1951 United Nations Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees. For purposes of proposed 8 CFR 208.33(a)(1) and 1208.33(a)(1), the phrase “enters the United States at the southwest land border” would mean any crossing into the territorial limits of the United States,

i.e.,

physical presence, whether presenting at a U.S. port of entry or crossing into U.S. territory between ports of entry, without regard to whether the noncitizen has been inspected by an immigration officer, evaded inspection by an immigration officer, or was free from official restraint or surveillance. In other words, the term “enters” would not be intended to import the definitions of “entry” that have been used in certain other, unique immigration law contexts.

Cf., e.g., Matter of Martinez-Serrano,

25 I&N Dec. 151, 153 (BIA 2009).

This rebuttable presumption would not apply to noncitizens who availed themselves of certain established processes to enter the United States or sought asylum in a third country and were denied. Proposed 8 CFR 208.33(a)(1), 8 CFR 1208.33(a)(1). Specifically, the rebuttable presumption would not be applicable to noncitizens who are provided appropriate authorization to travel to the United States to seek parole, pursuant to a DHS-approved parole process; presented at a port of entry at a pre-scheduled time and place, or presented at a port of entry, without a pre-scheduled time and place, if the noncitizen demonstrates that the DHS scheduling system (currently the CBP One app) was not possible for the noncitizen to access or use; or sought asylum or other protection in a country through which the noncitizen traveled and received a final decision denying that application. Proposed 8 CFR 208.33(a)(1)(i) through (iii), 1208.33(a)(1)(i) through (iii).

173

The exemption for circumstances in which the DHS scheduling system was inaccessible or unusable is designed to capture a narrow set of cases in which it was truly not possible for the noncitizen to access or use the DHS system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.

A noncitizen could rebut this presumption by demonstrating exceptionally compelling circumstances by a preponderance of the evidence. The proposed rule lists three per se grounds for rebuttal: if a noncitizen demonstrates that, at the time of entry, they or a member of their family as described in 8 CFR 208.30(c) with whom the noncitizen is traveling faced an acute medical emergency; faced an imminent and extreme threat to their life or safety; or were a “victim of a severe form of trafficking in persons” as defined in 8 CFR 214.11. Proposed 8 CFR 208.33(a)(2)(i) through (iii), 1208.33(a)(2)(i) through (iii). Acute medical emergencies would include situations in which someone faces a life-threatening medical emergency or faces acute and grave medical needs that cannot be adequately addressed outside of the United States. Examples of imminent and extreme threats would include imminent threats of rape, kidnapping, torture, or murder that the noncitizen faced at the time the noncitizen crossed the SWB, such that they cannot wait for an opportunity to present at a port of entry in accordance with the processes outlined in this proposed rule without putting their life or well-being at extreme risk; it would not include generalized threats of violence. In addition to the per se grounds for rebuttal, the presumption also could be rebutted in other exceptionally compelling circumstances, as the adjudicators in the sound exercise of their judgment may determine.

One such additional exceptionally compelling circumstance that the proposed rule would recognize avoids a circumstance that may lead to the separation of a family.

See

proposed 8 CFR 1208.33(d). Those subject to the lawful pathways condition on asylum eligibility who do not rebut the presumption would be able to continue to apply for statutory withholding of removal and protection under the CAT. Unlike in asylum, spouses and minor children are not eligible for derivative grants of withholding of removal or CAT protection.

Compare

INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (“[a] spouse or child . . . of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien”),

with

INA 241(b)(3), 8 U.S.C. 1231(b)(3) (not providing for derivative statutory withholding of removal),

and

8 CFR 1208.16(c)(2) (not providing for derivative CAT protection);