Securing the Border

Federal RegisterOct 7, 2024

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 235

[CIS No. 2778-24; Docket No: USCIS-2024-0006]

RIN 1615-AC92

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 6053-2024]

RIN 1125-AB32

Securing the Border

AGENCY:

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

ACTION:

Final rule; request for comments.

SUMMARY:

On June 3, 2024, the President signed a Proclamation under sections 212(f) and 215(a) of the Immigration and Nationality Act (“INA”) suspending and limiting the entry of certain noncitizens into the United States during emergency border circumstances. DHS and DOJ (“the Departments”) issued a complementary interim final rule (“IFR”) shortly thereafter. This final rule responds to public comments received on the IFR, makes certain revisions to the regulatory text, and seeks comment on potential changes to the Circumvention of Lawful Pathways rule as well as changes that parallel modifications made by the subsequent Proclamation.

DATES:

Effective date:

This rule is effective at 12:01 a.m. eastern daylight time on October 1, 2024.

Comment period for solicited comments:

Comments on the extended and expanded applicability of the Circumvention of Lawful Pathways rebuttable presumption in Section IV of this preamble and changes that parallel modifications made by the subsequent Proclamation described in Section II.C.1 of this preamble must be submitted on or before November 6, 2024.

The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

Docket:

To view comments on the IFR that preceded this rule, search for docket number USCIS-2024-0006 on the Federal eRulemaking Portal at

https://www.regulations.gov.

Comment period for solicited additional comments:

You may submit comments on the specific issues identified in Sections II.C.1 and IV of this preamble via the electronic Federal Docket Management System at

https://www.regulations.gov,

to DHS Docket Number USCIS-2024-0006. Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to the Departments' officials, will not be considered comments on the rulemaking and may not receive a response from the Departments. Please note that the Departments cannot accept any comments that are hand-delivered or couriered. In addition, the Departments cannot accept comments contained on any form of digital media storage device, such as CDs/DVDs and USB drives. The Departments are not accepting mailed comments at this time. If you cannot submit your comment by using

https://www.regulations.gov,

please contact the Regulatory Coordination Division, Office of Policy and Strategy, USCIS, DHS, by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

For DHS:

Daniel Delgado, Acting Deputy Assistant Secretary for Immigration Policy, Office of Strategy, Policy, and Plans, DHS; telephone (202) 447-3459 (not a toll-free call).

For EOIR:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Background and Purpose

1. Basis for the IFR

2. The Departments' Experience With the IFR

B. Legal Authority

C. Changes From the IFR to Final Rule

1. Changes to the IFR's Thresholds

2. Clarifying Changes to Regulatory Text

3. Other Technical Changes

D. Rule Provisions

E. Severability

III. Public Comments and Responses

A. Legal Authority and Background

1. Legality Concerns

a. General Comments on Domestic Law

b. Statutory Conditions and Limitations on Asylum Eligibility

c. Expedited Removal

d. General Comments on International Law

e. UNHCR Guidelines on International Protection

f. 2000 Protocol To Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children

2. Justification and Statements on Need for the Rule

a. Rule Is Unjustified, Unsubstantiated, or Arbitrary

b. Lack of Resources Does Not Justify the Rule

c. Rule Does Not Acknowledge Factors Contributing to Migration

d. Other Comments Related to the Departments' Justification

B. General Feedback on the IFR

1. General Support

2. General Opposition

a. Negative Impacts on Noncitizens and Others

i. Conflicts With Humanitarian Values

ii. Procedural and Due Process Concerns

(1) General Concerns

(2) Access to Counsel, Unrepresented Applicants, and the Ability or Time To Prepare

(3) Noncitizens' Ability to Have Their Claims Heard

(4) Issues With Asylum Officers, Detention Conditions, and Quality of Credible Fear Determinations

(5) Fairness or Risks Associated With Process

iii. Impacts on Specific Vulnerable Populations, Discrimination Concerns

iv. Impacts on Criminal Enforcement

v. Negative Impacts on Other Affected Entities

b. Negative or Minimal Impacts on Immigration System and Government Operations

i. Undermines the Administration's Promises and Goals

ii. Similarity to Actions of Past Administration

iii. Would Be Ineffective or Not Achieve Its Intended Outcomes

c. Negative Impacts on the U.S. Economy, Workforce, Citizenry, Public Health, and Safety

d. Other General Opposition

C. Provisions of the Rule

1. Limitation on Asylum Eligibility

a. Proclamation Exceptions—Section 3(b) of Proclamation

i. Legal Concerns Related to CBP One and the Lack of Exceptions

ii. Wait Times for CBP One Appointments

iii. Availability of and Access to CBP One Appointments and Concerns about Discrimination

b. Regulatory Exception—Exceptionally Compelling Circumstances

c. Implementation by CBP Officers

d. Application of the Limitation on Asylum Eligibility in Proceedings Before EOIR

e. Family Unity Provisions

2. Manifestation of Fear Standard

a. Legality Concerns

b. Concerns About the Efficiency and Complexity of the Manifestation Standard

c. Implementation Guidance and Accuracy of Manifestation To Identify Fear of Return

d. Trauma Impacting Manifestation and Vulnerable Populations

e. A Manifestation of Fear Does Not Sufficiently Align With a Valid Claim for Asylum

f. Noncitizens May Not Understand Their Legal Right to Seek Asylum

3. “Reasonable Probability” Screening Standard for Statutory Withholding of Removal and CAT Protection

4. Other Comments on the Regulatory Provisions

a. Application to Mexican Nationals

b. Adequacy of Statutory Withholding of Removal and CAT Protection

c. Requests for Reconsideration

D. Other Issues Relating to the Rule

1. Scope of the Rule and Implementation

a. Concerns That the Encounter Thresholds Are Too Low or Arbitrary

b. Concerns Regarding Exceptions From the Encounter Thresholds

c. Other Concerns About the Encounter Thresholds

2. Other Comments on Issues Relating to the Rule

E. Statutory and Regulatory Requirements

1. Administrative Procedure Act

a. Foreign Affairs Exception

b. Good Cause Exception

c. Length and Sufficiency of Comment Period

2. Impacts, Costs, and Benefits (E.O. 12866 and E.O. 13563)

3. Alternatives

a. Address Root Causes of Migration

b. Prioritize Funding and Other Resources

c. Further Expand Refugee Processing or Other Lawful Pathways

d. Expand Asylum Merits Process

e. Other Congressional Action

f. Additional Suggested Measures or Revisions

F. Out of Scope

IV. Requests for Comments

A. Aligning the Geographic Reach of the Circumvention of Lawful Pathways Rule With That of the Proclamation and This Rule

B. Extending the Applicability of the Circumvention of Lawful Pathways Rebuttable Presumption

V. Regulatory Requirements

A. Administrative Procedure Act

B. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and Executive Order 14094 (Modernizing Regulatory Review)

1. Effects Under a Without-IFR Baseline

2. Effects Under a With-IFR Baseline

3. Discontinuation Analysis Under a Without-IFR Baseline

4. Effects of Expansion and Extension of Circumvention of Lawful Pathways Rebuttable Presumption

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Congressional Review Act

F. Executive Order 13132 (Federalism)

G. Executive Order 12988 (Civil Justice Reform)

H. Family Assessment

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

J. National Environmental Policy Act

K. Paperwork Reduction Act

List of Abbreviations

AO Asylum Officer

AMI Asylum Merits Interview

APA Administrative Procedure Act

BIA Board of Immigration Appeals (DOJ, EOIR)

CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CBP U.S. Customs and Border Protection

CBP One app CBP One mobile application

CDC Centers for Disease Control and Prevention

CHNV Cuba, Haiti, Nicaragua, and Venezuela

DHS Department of Homeland Security

DOJ Department of Justice

EOIR Executive Office for Immigration Review

ERO Enforcement and Removal Operations

FARRA Foreign Affairs Reform and Restructuring Act of 1998

FERM Family Expedited Removal Management

FY Fiscal Year

HSA Homeland Security Act of 2002

ICE U.S. Immigration and Customs Enforcement

IFR Interim Final Rule

IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act of 1996

IJ Immigration Judge

INA or the Act Immigration and Nationality Act

LGBTQI+ Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, and Intersex

MPP Migrant Protection Protocols

NGO Non-Governmental Organization

NEPA National Environmental Policy Act of 1969

NTA Notice to Appear

OFO Office of Field Operations

OHSS Office of Homeland Security Statistics

POE Port of Entry

RFA Regulatory Flexibility Act

SWB Southwest Land Border

TCO Transnational Criminal Organization

TVPA Trafficking Victims Protection Act of 2000

UC Unaccompanied Child, having the same meaning as Unaccompanied Alien Child as defined at 6 U.S.C. 279(g)(2)

UDHR Universal Declaration of Human Rights

UIP U.S. Customs and Border Protection Unified Immigration Portal

UMRA Unfunded Mandates Reform Act of 1995

UNHCR United Nations High Commissioner for Refugees

USBP U.S. Border Patrol

USCIS U.S. Citizenship and Immigration Services

USCG U.S. Coast Guard

I. Public Participation

Interested persons are invited to submit comments on the specific issues identified in Sections II.C.1 and IV of this preamble by submitting relevant written data, views, comments, and arguments by the deadline stated above. To provide the most assistance to the Departments, comments should explain the reason for any recommendation and include data, information, or authority that supports the recommended course of action. Comments must be submitted in English, or an English translation must be provided. Comments submitted in a manner other than pursuant to the instructions, including emails or letters sent to the Departments' officials, will not be considered comments on the rule and may not receive a response from the Departments.

Instructions:

If you submit a comment, you must include the USCIS Docket No. USCIS-2024-0006 for this rulemaking. All submissions may be posted, without change, to the Federal eRulemaking Portal at

https://www.regulations.gov,

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

https://www.regulations.gov.

Docket:

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

https://www.regulations.gov,

referencing USCIS Docket No. USCIS-2024-0006. You may also sign up for email alerts on the online docket to be notified when comments are posted, or a final rule is published.

II. Executive Summary

A. Background and Purpose

1. Basis for the IFR

On June 3, 2024, the President signed Proclamation 10773 (“June 3 Proclamation”)

under sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), finding that because the border security and immigration systems of the United States were unduly strained, the entry into the United States of certain categories of noncitizens was detrimental to the interests of the United States, and

suspending and limiting the entry of such noncitizens. 89 FR 48487, 48487-91 (June 7, 2024). The June 3 Proclamation directed DHS and DOJ to promptly consider issuing regulations addressing the circumstances at the southern border of the United States, including any warranted limitations and conditions on asylum eligibility.

Id.

at 48492. The Departments subsequently promulgated an IFR, effective June 5, 2024, “designed to implement the policies and objectives of the Proclamation by enhancing the Departments' ability to address historic levels of migration and efficiently process migrants arriving at the southern border during emergency border circumstances.”

Securing the Border, 89 FR 48710, 48718 (June 7, 2024) (“the IFR”).

As discussed in Section II.C.1 of this preamble, the President has since issued a proclamation amending portions of the June 3 Proclamation. That amending proclamation is referred to as the “September 27 Proclamation” in this preamble. Where the preamble refers to “the Proclamation” without specifying a date, it is referring to Proclamation 10773 as amended by the September 27 Proclamation.

The Departments use the term “emergency border circumstances” in this preamble to generally refer to situations in which high levels of encounters at the southern border exceed the Department of Homeland Security's (“DHS's”) capacity to deliver timely consequences to most individuals who cross irregularly into the United States and cannot establish a legal basis to remain in the United States.

See

89 FR at 48711 & n.2.

The June 3 Proclamation and the IFR explain that, since 2021, as a result of political and economic conditions globally, there have been substantial levels of migration throughout the Western Hemisphere, including at the southwest land border (“SWB”). 89 FR at 48487;

id.

at 48711 & n.3. In December 2023, migration levels at the SWB surged to the highest monthly total on record.

Id.

at 48712 n.5. DHS assessed that the surge in late 2023 was likely the result of a number of factors, including the growing understanding by smugglers and migrants that DHS's capacity to impose consequences at the border is limited by the lack of resources and tools made available by Congress and the Government of Mexico's operational constraints caused by a lack of funding at the end of the 2023 calendar year, which limited its ability to enforce its own immigration laws.

Id.

at 48725 & n.115.

There were nearly 302,000 U.S. Customs and Border Protection (“CBP”) encounters at and between ports of entry (“POEs”) along the southwest land border (“SWB”) in December 2023, higher than any previous month on record. Office of Homeland Security Statistics (“OHSS”) analysis of July 2024 OHSS Persist Dataset [Encounters Fiscal Year (“FY”) 2000-2024]; 89 FR at 48714 n.21;

see also

OHSS,

Immigration Enforcement and Legal Processes Monthly Tables

(last updated Sept. 6, 2024),

https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables

(SWB encounters from FY 2014 through December 2023). OHSS figures are generally rounded throughout this preamble.

These sustained high encounter rates outstripped the Departments' abilities—based on available resources—to deliver timely decisions and consequences in significant numbers for those without a legal basis to remain in the United States. 89 FR at 48714. Due to its funding shortfall, DHS lacked adequate resources such as sufficient USCIS asylum officers (“AOs”) to conduct fear screenings and sufficient temporary processing facilities, often called “soft-sides.”

Id.

These factors limited DHS's ability to conduct credible fear interviews for individuals in U.S. Customs and Border Protection (“CBP”) custody and to process and hold individuals in U.S. Immigration and Customs Enforcement (“ICE”) custody during the expedited removal process.

Id.

The substantial migration throughout the hemisphere, combined with inadequate resources and tools to keep pace, limited DHS's ability to impose timely consequences through expedited removal, the main consequence Congress has made available at the border under title 8 authorities. 89 FR at 48713-14. Consistent with past practice prior to the Title 42 public health Order, individuals who are subject to but cannot be processed under expedited removal due to resource constraints are instead generally released, after screening and vetting, pending removal proceedings under section 240 of the INA, 8 U.S.C. 1229a (“section 240 removal proceedings”), before an immigration judge (“IJ”).

These higher encounter rates also place significant strain on the immigration courts. Recently, despite significant increases in the total number of IJs and case completions since Fiscal Year (“FY”) 2021, newly initiated cases have far outpaced such completions.

Placing more noncitizens in section 240 removal proceedings before an IJ—rather than processing eligible noncitizens through the expedited removal process—only further contributes to the immigration court backlog, and those cases can take several years to conclude.

This strain is also particularly acute in light of EOIR's current underfunding. Rather than increase funding to support IJ team hiring, EOIR's FY 2024 budget was $16 million less than in FY 2023 and was $94.3 million less than its inflation-adjusted funding requirements (referred to as “Current Services”).

See

Executive Office of Immigration Review (“EOIR”),

Adjudication Statistics: New Cases and Total Completions

(July 2024),

https://www.justice.gov/eoir/media/1344796/dl?inline

; EOIR,

Adjudication Statistics: Immigration Judge (IJ) Hiring

(July 2024),

https://www.justice.gov/eoir/media/1344911/dl?inline

EOIR decisions completed in July 2024 were, on average, initiated in February 2022, during the significant operational disruptions caused by the COVID-19 pandemic (with encounters several months earlier than that), but 60 percent of EOIR cases initiated during that time were still pending as of July 2024, so the final mean processing time (once all such cases are complete) will be longer. OHSS analysis of EOIR data as of July 2024 (Mean EOIR Filed Dates tab); EOIR,

EOIR Strategic Plan 2024, EOIR's Strategic Context, Current Operating Environment, https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment

(last visited Sept. 20, 2024) (“EOIR . . . suffered operational setbacks during the COVID-19 pandemic years of FY 2020 through FY 2022, including declining case completions due to health closures and scheduling complications and delays in agency efforts to transition to electronic records and the efficiencies they represent. While the challenges of the pandemic were overcome by adaptive measures taken during those years, the pandemic's impact on the pending caseload is still being felt.”). Although EOIR does not report statistics on pending median completion times for removal proceedings in general, it does report median completion times for certain types of cases, such as detained cases and cases involving unaccompanied children (“UCs”).

See, e.g.,

EOIR,

Median Unaccompanied Noncitizen Child (UAC) Case Completion and Case Pending Time

(Apr. 19, 2024),

https://www.justice.gov/eoir/media/1344951/dl?inline

(median completion time of 1,254 days); EOIR,

Median Completion Times for Detained Cases

(Apr. 19, 2024),

https://www.justice.gov/eoir/media/1344866/dl?inline

(median completion time of 46 days in the second quarter of 2024 for removal, deportation, exclusion, asylum-only, and withholding-only cases); EOIR,

Percentage of DHS-Detained Cases Completed within Six Months

(Apr. 19, 2024),

https://www.justice.gov/eoir/media/1344886/dl?inline

(reporting seven percent of detained cases not completed within six months).

See

Consolidated Appropriations Act, 2024, Public Law 118-42, 138 Stat. 25, 133; EOIR,

FY 2024 Budget Request at a Glance, https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf.

The Departments reasoned that their capacity to predictably deliver timely decisions and consequences is jeopardized by emergency border circumstances, which, left unmitigated, further add to the incentives and motivations for migrants to make the dangerous journey to the SWB, regardless of their ultimate likelihood of success on an asylum or protection application, and that the current immigration and asylum systems had become a driver for irregular migration

throughout the region and an increasingly lucrative source of income for dangerous transnational criminal organizations (“TCOs”). 89 FR at 48714. Despite the Departments' efforts to address these substantial levels of migration, strengthen the consequences in place at the border, and enhance the overall functioning of the immigration system, including through the

Circumvention of Lawful Pathways rule, 88 FR 31314 (May 16, 2023), these circumstances still existed as a direct result of Congress's failure to update outdated immigration laws and provide needed funding and resources for the efficient operation of the border security and immigration systems. 89 FR at 48711-13, 48715.

As used in this preamble, “irregular migration” refers to the movement of people into another country unlawfully or without authorization. With respect to the United States' borders, the term “irregular” is used in this preamble to refer to physically entering between POEs or otherwise entering without documents sufficient for lawful admission, unless entering with advance authorization to travel or at a pre-scheduled time and place to present at a POE.

In the absence of congressional action, and consistent with the President's direction in the June 3 Proclamation to consider issuing regulations, the Departments adopted the provisions in the IFR, which were intended to address the emergency border circumstances and to substantially improve the Departments' ability to deliver timely decisions and consequences during such circumstances.

See

89 FR at 48710. The IFR established a limitation on asylum eligibility that applies to certain individuals who enter irregularly across the southern border during emergency border circumstances and revised certain procedures applicable to the expedited removal process during such periods to reduce the time required to apply consequences to those individuals and remove noncitizens who do not have a legal basis to remain in the United States.

Id.

at 48715. The IFR was expected to achieve several benefits: reduce strains on limited Federal Government immigration processing and enforcement resources; preserve the Departments' continued ability to safely, humanely, and effectively enforce and administer the immigration laws; protect against overcrowding in border facilities; and reduce the ability of exploitative TCOs and smugglers to operate.

Id.

at 48745, 48767.

2. The Departments' Experience With the IFR

The IFR's limitation on asylum eligibility and revised procedures are working as intended, though as discussed below, the Departments have determined that modest adjustments to the threshold calculations are warranted. As explained in the paragraphs that follow, in the weeks since June 5, 2024, U.S. Border Patrol (“USBP”) encounters between the ports of entry (“POEs”) have dropped markedly. Although the Departments believe that this has occurred for a range of reasons, one important reason is that the rule itself has significantly shifted incentives at the southern border. As explained further below, and consistent with the explanation provided in the IFR, the rule has, at least in part, significantly improved DHS's ability to place into expedited removal a majority of single adults and individuals in family units encountered by USBP; to avoid large-scale releases of such individuals into the United States pending section 240 removal proceedings; and to allow for swift resolution of such individuals' cases and, where appropriate, their removal.

See id.

At the same time, the Departments have continued to implement the largest expansion of lawful, safe, and orderly pathways and processes

for individuals to come to the United States and to uphold the United States' non-refoulement obligations under international law.

The terms “lawful pathways,” “lawful, safe, and orderly pathways,” “lawful pathways and processes,” and “lawful, safe, and orderly pathways and processes,” as used in this preamble, refer to the range of pathways and processes by which migrants are able to enter the United States or other countries in a lawful, safe, and orderly manner, including to seek asylum and other forms of protection or other immigration benefits for which they may be eligible.

In the period between June 5, 2024, and August 31, 2024, average daily total encounters between POEs at the SWB under the Proclamation and IFR have fallen 59 percent from the level of average daily encounters during the immediate post-pandemic period,

i.e.,

the period after the Circumvention of Lawful Pathways rule began to apply on May 12, 2023,

and before the IFR entered into effect on June 5, 2024.

This dramatic decrease in encounters has spanned multiple demographic categories. For instance, DHS has observed a drop in encounters of family units, a demographic category that presents particular operational challenges. During the immediate post-pandemic period, DHS experienced an average of about 2,000 daily encounters of individuals in family units.

Since the Departments issued the IFR, that daily average has dropped 70 percent to about 600 individuals in family units encountered daily.

Other significant drops in encounter numbers occurred with single adults and unaccompanied children (“UCs”).

While the rule's effective date was May 11, 2023, 88 FR at 31314, the rule only applies to noncitizens who enter the United States “[s]ubsequent to the end of implementation of the Title 42 public health Order[,]” 8 CFR 208.33(a)(1)(ii), which expired at 11:59 p.m. on May 11, 2023,

see

DHS,

Fact Sheet: Department of State and Department of Homeland Security Announce Additional Security Measures to Humanely Manage Border through Deterrence, Enforcement, and Diplomacy

(May 10, 2023),

https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.

Therefore, the Circumvention of Lawful Pathways rule began to apply on May 12, 2023.

OHSS analysis of July 2024 OHSS Persist Dataset and data downloaded from the U.S. Customs and Border Protection Unified Immigration Portal (“UIP”) on September 3, 2024 (Summary Statistics tab). There was an average of about 2,100 total encounters per day (including all demographic groups) between POEs at the SWB from June 5, 2024, to August 31, 2024, compared to around 5,100 per day during the immediate post-pandemic period, defined as May 12, 2023, through June 4, 2024.

Id.

OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab).

OHSS analysis data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

OHSS analysis of July 2024 Persist Dataset and data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

In contrast to processing before the IFR, DHS is now placing the majority of single adults and individuals in family units encountered by USBP at the SWB into expedited removal. Between June 5, 2024, and August 31, 2024, DHS placed 59 percent of these noncitizens into expedited removal proceedings, compared to 18 percent of such noncitizens during the immediate post-pandemic period following the end of the Title 42 public health Order.

In the pre-pandemic period,

DHS placed 41 percent of such noncitizens into expedited removal proceedings.

The decrease in the number of encounters at the SWB directly enabled DHS's increased placement rate of noncitizens into expedited removal proceedings. Because encounter levels have decreased, DHS is able to use its operational resources to refer a higher percentage of noncitizens into expedited removal proceedings and deliver timely consequences in a greater proportion of cases.

The IFR is remedying the

negative effects of the previously sustained high encounter numbers described in the IFR and in this rule.

See, e.g.,

89 FR at 48749 (“In order to maximize the consequences for those who cross unlawfully or without authorization, DHS endeavors to deliver consequences swiftly to the highest proportion of individuals who fail to establish a legal basis to remain in the United States. This includes, subject to available resources, referring the maximum number of eligible individuals possible into expedited removal to quickly adjudicate their claims.”).

OHSS analysis of data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

Throughout this preamble the “pre-pandemic period” refers to FY 2014 to FY 2019.

OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab). DHS reinstated removal orders for a larger share of single adults and individuals in family units during the pre-pandemic period (26 percent during the pre-pandemic period compared to 14 percent under the interim final rule (“IFR”)), which is unsurprising given that the Departments are seeing fewer repeat encounters as a result of the higher proportion of non-Mexicans/non-northern Central Americans—with more limited migration histories—as a share of total encounters.

Id.;

89 FR at 48721 n.49. Notably, the sum of reinstatements and expedited removals is still higher during the IFR (a combined 73 percent) than it was during the pre-pandemic period (67 percent). OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab).

The most effective way to deliver timely consequences to noncitizens who enter irregularly is through the expedited removal system, but DHS's capacity to use that system on a large scale is subject to resource constraints. One such constraint is space to hold noncitizens in DHS custody during the expedited removal process. Because noncitizens in expedited removal are subject to detention, including during the pendency of their credible fear proceedings, the use of expedited removal may lead to an increase in the time that an individual spends in CBP custody. This is particularly the case when the individual is receiving their credible fear interview while in CBP custody. When there are high numbers of individuals placed in expedited removal, the number of individuals who remain in CBP custody for a lengthier period can increase rapidly, leading to overcrowded conditions. In

addition, given the nature of CBP facilities—which are designed for short-term temporary holding—CBP endeavors to move all individuals out of custody in an expeditious manner and to avoid overcrowding.

Thus, if high encounter levels result in a significant number of individuals in CBP custody, or if those individuals have been in custody for a significant period of time, CBP may lose optionality: having lost the capacity to place additional noncitizens into the expedited removal process, CBP generally must take steps to release some individuals from custody to ensure safe and sanitary conditions and appropriate time in custody. In cases when release is appropriate or warranted, CBP generally issues an individual a Notice to Appear (“NTA”) before an immigration judge (“IJ”) prior to their release from custody. Although in some circumstances transfer of such noncitizens to U.S. Immigration and Customs Enforcement (“ICE”) for detention for the duration of the credible fear process is possible, the ability to do so is dependent on the availability of space in ICE's already significantly strained detention network. Therefore, when ICE detention space is unavailable, noncitizens must then be processed by CBP through non-expedited removal pathways.

Relatedly, the IFR has also significantly reduced the percentage of noncitizens encountered between POEs at the SWB who are released into the United States pending completion of their section 240 removal proceedings. For instance, from June 5, 2024, through August 31, 2024, USBP placed 25 percent of noncitizens encountered at the SWB into section 240 removal proceedings.

This is down 41 percentage points from the immediate post-pandemic period, when USBP placed 66 percent of such noncitizens into section 240 removal proceedings, translating to a reduction of over 60 percent.

Similarly, between June 5, 2024, and August 31, 2024, 33 percent of all noncitizens encountered at the SWB were sent to Enforcement and Removal Operations (“ERO”); this figure is up from 19 percent during the immediate post-pandemic period.

OHSS analysis of data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab).

OHSS analysis of July 2024 Persist Dataset and data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

The IFR's change to how DHS immigration officers identify and refer noncitizens for credible fear interviews has resulted in a reduction of such referrals. Under the IFR, during emergency border circumstances, instead of asking specific questions about fear or providing lengthy advisals, DHS refers a noncitizen for such an interview if the noncitizen manifests a fear of return, expresses an intention to apply for asylum or protection, or expresses a fear of persecution or torture or a fear of return to the noncitizen's country or the country of removal. From June 5, 2024, through August 31, 2024, 27 percent of noncitizens encountered between POEs at the SWB and processed for expedited removal indicated an intention to apply for asylum or a fear of persecution or torture, compared with a 37 percent fear-claim rate during the pre-pandemic period and 57 percent during the immediate post-pandemic period.

In the IFR, DHS explained that based on its extensive experience administering the expedited removal process, it concluded that the affirmative questions asked under steady state operations are suggestive and account for part of the high rates of referrals and screen-ins that do not ultimately result in a grant of asylum or protection. 89 FR at 48743.

The shift to a manifestation standard has, as intended, reduced the gap between high rates of referrals and screen-ins and historic ultimate grant rates as well as increased processing efficiency for DHS, and noncitizens who manifest or claim a fear, or who indicate an intention to apply for asylum, still have their claims adjudicated as required by the INA.

OHSS analysis of July 2024 Persist Dataset and data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

From FY 2014 through 2019, of total SWB encounters processed for expedited removal and then referred to section 240 proceedings, only 18 percent of EOIR case completions ultimately resulted in a grant of protection or relief. 89 FR at 48743 n.219; OHSS analysis of June 2024 Enforcement Lifecycle dataset (Historic ERCF Results tab). During that same period, 37 percent of SWB encounters processed for expedited removal claimed fear, and 76 percent of those who claimed fear were screened in and referred to section 240 removal proceedings. OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab).

The shift to a “reasonable probability” standard for screening 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”), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S 85,

has further reduced the difference between high screen-in rates and historically low ultimate grant rates of protection or relief. Overall, of those USBP has referred for credible fear interviews, the comprehensive screen-in rate has dropped to 57 percent, compared to 83 percent during the pre-pandemic period and 62 percent during the immediate post-pandemic period.

Of USBP encounters screened by USCIS under the rule's “reasonable probability” standard, the screen-in rate has decreased to approximately 48 percent

compared to 76 percent

under the “significant possibility” standard during the pre-pandemic period, and approximately 51 percent

for those screened under the Circumvention of Lawful Pathway rule's lower “reasonable possibility” standard.

The Departments believe the lower screen-in rate under the IFR better

aligns with the percentage of noncitizens who have historically been granted protection or relief. That is to say, noncitizens screened under the higher “reasonable probability” standard that receive positive findings are more likely to have meritorious claims in ultimate adjudications.

In this preamble, consistent with the IFR, the Departments generally refer to 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”) as “CAT protection.”

See, e.g.,

89 FR at 48716.

OHSS analysis of July 2024 Persist Dataset and data downloaded from UIP on September 3, 2024 (Summary Statistics tab). Data for immediate post-pandemic and IFR periods are limited to SWB encounters between POEs. The comprehensive screen-in rate includes positive determinations issued by U.S. Citizenship and Immigration Services (“USCIS”), cases where an IJ vacated USCIS's negative determination, and cases administratively closed by USCIS in which a discretionary NTA was issued. For cases processed under either the Circumvention of Lawful Pathways rule or the IFR, the comprehensive screen-in rate encompasses cases where USCIS or an IJ determined that the noncitizen was found not subject to the Circumvention of Lawful Pathways rule's rebuttable presumption or the IFR's limitation on asylum eligibility under the significant possibility standard, in addition to cases screened-in under the “reasonable possibility” or “reasonable probability” standards, as applicable.

OHSS analysis of data downloaded from UIP on September 3, 2024 (Fear Screening—STB tab, Line 9 divided by Line 8). Data are limited to SWB encounters between POEs.

OHSS analysis of June 2024 Enforcement Lifecycle dataset (Historic ERCF Results tab). Data are limited to SWB encounters between POEs.

OHSS analysis of July 2024 Persist Dataset (Fear Screening—CLP tab, Line 13 divided by Line 12). Data are limited to SWB encounters between POEs.

OHSS analysis of data downloaded from UIP on September 3, 2024 (Summary Statistics tab). Although in the preamble to the IFR, DHS anticipated that the manifestation approach “will likely lead to a higher proportion of those referred having colorable claims for protection[,]”

see

89 FR at 48743, USCIS screen-in rates have dropped slightly, as noted above,

see

OHSS analysis of June 2024 Enforcement Lifecycle dataset, July 2024 Persist Dataset, and data downloaded from UIP on September 3, 2024 (Historic ERCF Results, Fear Screening—STB, and Fear Screening—CLP tabs). There could be multiple reasons for this development, including the effects of the “manifestation” and “reasonable probability” provisions, which are difficult to disentangle.

As a result of the IFR, DHS is able to more quickly remove a greater percentage of those who do not have a legal basis to remain in the United States. In the pre-pandemic period, the median processing time for a noncitizen encountered by USBP with a negative fear determination in expedited removal was 75 days from encounter to removal.

During the immediate post-pandemic period, this metric dropped to 44 days.

From June 5, 2024, through August 31, 2024, the metric dropped again to 32 days.

Similarly, the processing time from when a noncitizen is referred for a credible fear interview to when the noncitizen receives a fear determination is down 58 percent compared to the immediate post-pandemic period and down 71 percent compared to the pandemic period.

The Departments attribute the decreased processing time to key provisions of the IFR. For instance, the manifestation of fear provision has resulted in streamlined processing and a lower percentage of individuals indicating fear, thereby shortening the average processing time as those who do not indicate fear do not receive a screening by an AO or review by an IJ prior to removal. Then, for those who indicate fear, following a minimum consultation period that DHS reduced through separate guidance,

AOs, supervisory AOs, and IJs have been applying the IFR's reasonable probability screening standard. In addition, between June 5, 2024, and August 31, 2024, 32 percent of all noncitizens encountered at the SWB were removed or returned to their home country or to Mexico directly from USBP custody.

This is double the rate of repatriations from USBP custody (16 percent) that occurred during the immediate post-pandemic period.

Overall, from June 5, 2024, through August 31, 2024, DHS has removed or returned 70 percent of single adults and individuals in family units encountered by USBP.

This contrasts with a 28-percent rate during the immediate post-pandemic period.

Viewed in terms of daily averages, under the IFR through August 31, 2024, there have been about 1,880 daily encounters of single adults and individuals in family units.

And DHS has averaged about 1,320 total daily repatriations and 580 releases from CBP custody pending immigration proceedings over that time frame.

OHSS analysis of June 2024 Enforcement Lifecycle dataset (Summary Statistics tab).

OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab).

OHSS analysis of data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

OHSS analysis of July 2024 Persist Dataset and data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

The Immigration and Nationality Act (“INA”) requires that the noncitizen be given information about the credible fear interview and provides the right for noncitizens in the credible fear process to consult with a person or persons of their choosing prior to the interview, so long as the consultation is conducted “according to [duly prescribed] regulations.” INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv);

see

INA 103(a), 8 U.S.C. 1103(a); 6 U.S.C. 557. Under those regulations, including during circumstances in which the measures in the IFR apply, consultation shall be at no expense to the Government, and consultations “shall be made available in accordance with the policies and procedures of the detention facility where the alien is detained, . . . and shall not unreasonably delay the process.” 8 CFR 235.3(b)(4)(ii), 235.15(a). The regulations do not require that the noncitizen be allowed a particular amount of time to consult with the person or persons of their choosing.

Id.

On June 4, 2024, to support implementation of the Proclamation and IFR, as a matter of internal policy, USCIS reduced the minimum consultation period for noncitizens subject to the rule's provisions from at least 24 hours to at least 4 hours beginning at the time ICE or CBP provides the noncitizen with the opportunity to consult and continuing only during the hours of 7 a.m. and 7 p.m. local time.

See

Memorandum for Jennifer B. Higgins, Deputy Dir., USCIS, from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations Directorate, USCIS,

Re: Scheduling of Credible Fear Interviews While the Measures in the Securing the Border Interim Final Rule Apply

(June 4, 2024).

OHSS analysis of data downloaded from UIP on September 3, 2024 (Summary Statistics tab).

OHSS analysis of July 2024 Persist Dataset (Summary Statistics tab).

DHS encountered 165,000 single adults and individuals in family units between June 4, 2024, and August 31, 2024, and had repatriated 119,000 of them as of September 3, 2024. OHSS analysis of data downloaded from UIP on Sept. 3, 2024 (IFR Details tab).

During that time period, there were 1.87 million such encounters with noncitizens other than UCs, of which 511,000 noncitizens were repatriated. OHSS analysis of July 2024 OHSS Persist Dataset (Immediate Post-Pandemic Details tab).

OHSS analysis of data downloaded from UIP on September 3, 2024 (IFR Details tab).

Id.

Faster repatriations free up DHS resources and capacity for processing new arrivals, allowing for further increases in the use of expedited removal and fewer releases pending completion of section 240 removal proceedings. These successes disrupt the “vicious cycle” the Departments sought to counteract in issuing the IFR. 89 FR at 48714;

see id.

at 48751 (“This reality contributes to the vicious cycle . . . in which increasing numbers of releases lead to increased migration, fueled by the narrative, pushed by smugglers, that migrants who are encountered at the border will be allowed to remain and work in the United States for long periods of time.”).

Meanwhile, noncitizens have continued to use lawful, safe, and orderly pathways and processes to seek entry to the United States. For example, the use of the CBP One mobile application (“CBP One app”) to schedule an appointment at a SWB POE is an available tool that permits noncitizens to present themselves at the border in a lawful, safe, and orderly manner. From June 5, 2024, through August 31, 2024, approximately 123,500 noncitizens with CBP One appointments presented at SWB POEs and were accordingly processed outside of the procedures set forth in the IFR.

See

8 CFR 208.35(a)(1), 1208.35(a)(1); section 3(b)(v)(D) of the Proclamation. During the pre-pandemic period, approximately 300 encounters were processed at SWB POEs per day.

Since the launch of the CBP One app in January 2023, approximately 1,500 encounters have been processed at SWB POEs each day (with and without CBP One appointments).

And from the start of FY 2024 through August 31, 2024, that average increased to approximately 1,700 per day.

Other lawful pathways that continue to be available include expanded parole processes for specific populations and demographics such as nationals of Cuba, Haiti, Nicaragua, and Venezuela (“CHNV”), which allow certain individuals with U.S.-based supporters to seek parole on a case-by-case basis for urgent humanitarian reasons or significant public benefit;

the Safe Mobility Offices in Colombia, Costa Rica, Ecuador, and Guatemala, which provide, among other services, access to information and referrals for humanitarian and family parole processes, labor pathways, expedited refugee processing, and other lawful, safe, and orderly pathways for eligible

individuals to the United States and other countries;

country-specific family reunification parole processes for certain nationals of Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, and Honduras who have qualifying U.S. citizen relatives in the United States;

and temporary nonimmigrant worker visas, which provide employment opportunities for eligible individuals.

Id.

OHSS analysis of July 2024 Persist Dataset (OFO Encounters tab).

Id.

On June 30, 2023, CBP announced the expansion of available appointments for noncitizens through the CBP One mobile application (“CBP One app”) to 1,450 per day, up from 1,250. Cumulatively, the expansion to 1,450 appointments represented a nearly 50 percent increase from May 12, 2023, when CBP processed 1,000 appointments per day.

See

CBP,

CBP One

Appointments Increased to 1,450 Per Day

(June 30, 2023),

https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.

OHSS analysis of July 2024 Persist Dataset and data downloaded from UIP on September 3, 2024 (OFO Encounters tab).

USCIS,

Processes for Cubans, Haitians, Nicaraguans, and Venezuelans

(last reviewed/updated Aug. 29, 2024),

https://www.uscis.gov/CHNV

U.S. Dep't of State,

Safe Mobility Initiative: Helping Those in Need and Reducing Irregular Migration in the Americas, https://www.state.gov/safe-mobility-initiative/

(last visited Aug. 23, 2024).

See

USCIS,

Family Reunification Parole Processes

(last reviewed/updated Sept. 10, 2024),

https://www.uscis.gov/FRP.

See

USCIS,

Temporary (Nonimmigrant) Workers

(last reviewed/updated July 24, 2024),

https://www.uscis.gov/working-in-the-united-states/temporary-nonimmigrant-workers.

Thus, the provisions of the IFR and other measures taken to assist in the IFR's implementation are effective tools in managing levels of irregular migration that, absent key policy interventions like this rule, severely strain the Departments' abilities to safely, effectively, and humanely enforce and administer U.S. immigration laws. The historically high level of encounters that DHS experienced in the months before the IFR's implementation has decreased markedly, and DHS's ability to expeditiously process noncitizens and deliver swift consequences to those who do not establish a legal basis to remain in the United States has therefore improved significantly.

B. Legal Authority

The Secretary and the Attorney General jointly issue this rule pursuant to their shared and respective authorities concerning consideration of claims for asylum, statutory withholding of removal, and protection under regulations implemented pursuant to U.S. obligations under Article 3 of the CAT. The Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135, as amended, created DHS and transferred to the Secretary of Homeland Security many functions related to the administration and enforcement of Federal immigration law while maintaining some functions and authorities with the Attorney General, including some shared concurrently with the Secretary.

The Homeland Security Act of 2002 (“HSA”) further provides, “Nothing in this Act, any amendment made by this Act, or in section 103 of the [INA], as amended . . . , shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General.” 116 Stat. at 2274 (codified at 6 U.S.C. 522).

The INA, as amended by the HSA, charges the Secretary “with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens,” except insofar as those laws assign functions to certain other officers. INA 103(a)(1), 8 U.S.C. 1103(a)(1). The INA grants the Secretary the authority to establish regulations and take other actions that the Secretary deems “necessary for carrying out” the Secretary's authority under the immigration laws. INA 103(a)(3), 8 U.S.C. 1103(a)(3);

see also

6 U.S.C. 202.

The HSA provides the Attorney General with “such authorities and functions under [the INA] and all other laws relating to the immigration and naturalization of aliens as were [previously] exercised by [EOIR], or by the Attorney General with respect to [EOIR].” INA 103(g)(1), 8 U.S.C. 1103(g)(1);

see also

6 U.S.C. 521(a). In addition, under the HSA, the Attorney General retains authority to “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” the Attorney General's authorities under the immigration laws. INA 103(g)(2), 8 U.S.C. 1103(g)(2).

Under the HSA, the Attorney General retains authority over the conduct of section 240 removal proceedings. These adjudications are conducted by IJs within DOJ's EOIR.

See

6 U.S.C. 521(a); INA 103(g)(1), 8 U.S.C. 1103(g)(1); 8 CFR 1240.1. With limited exceptions, IJs adjudicate asylum, statutory withholding of removal, and CAT protection applications filed by noncitizens during the pendency of section 240 removal proceedings, including asylum applications referred by USCIS to the immigration court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA 240(a)(1), 8 U.S.C. 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 1208.2(b), 1240.1(a);

see also

The INA also provides the Secretary and the Attorney General authority to publish regulations governing their respective roles regarding apprehension, inspection and admission, detention and removal, withholding of removal, deferral of removal, and release of noncitizens encountered in the interior of the United States or at or between POEs.

See

INA 103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3), (g)(2);

see also

6 U.S.C. 271(b)(3) (providing for the transfer of adjudication of asylum and

refugee applications from the Commissioner of Immigration and Naturalization to the Director of the Bureau of Citizenship and Immigration Services, now USCIS); 6 U.S.C. 557 (providing that references to any officer from whom functions are transferred under the HSA are to be understood as referring to the Secretary of Homeland Security). Within DHS, AOs conduct credible fear interviews, make credible fear determinations, and determine whether a noncitizen's asylum application should be granted, all of which are subject to review by a supervisory AO.

See

8 CFR 208.2(a), 208.9, 208.14(b), 208.30(b), (e)(6)(i), (e)(8). The INA grants IJs the authority to review AO negative credible fear determinations. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).

The United States is a party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (“Refugee Protocol”), which incorporates Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (“Refugee Convention”). Article 33.1 of the Refugee Convention generally prohibits parties to the Convention from expelling or returning (“refouling”) “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Refugee Convention, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.

Because the Refugee Protocol is not self-executing,

Congress implemented these non-refoulement obligations through the INA, as amended by the Refugee Act of 1980, Public Law 96-212, 94 Stat. 102 (“Refugee Act”).

See

8 U.S.C. 1253(h) (1952);

Sale

Haitian Ctrs. Council, Inc.,

509 U.S. 155, 174-77 (1993) (describing the history of the statutory withholding provision and the Refugee Act amendments). The Supreme Court has long recognized that the United States implements its non-refoulement obligations under Article 33 of the Refugee Convention (via the Refugee Protocol) through the statutory withholding of removal provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3) (“statutory withholding of removal”), which provides that a noncitizen may not be removed to a country where their life or freedom would be threatened on account of one of the protected grounds listed in Article 33 of the Refugee Convention.

See

INA 241(b)(3), 8 U.S.C. 1231(b)(3);

see also

8 CFR 208.16, 1208.16. The INA also authorizes the Secretary and the Attorney General to implement statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3).

See

INA 103(a)(1), (3), (g)(1)-(2), 8 U.S.C. 1103(a)(1), (3), (g)(1)-(2).

E.g., Al-Fara

Gonzales,

404 F.3d 733, 743 (3d Cir. 2005) (“The 1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by implementing domestic legislation.” (citations omitted)).

See INS

Aguirre-Aguirre,

526 U.S. 415, 426-27 (1999);

see also

6 U.S.C. 279. Because of this, UCs are generally prioritized for processing in CBP facilities. The processing and treatment of UCs also include a number of other unique legal and policy requirements, such as conducting a thorough screening for trafficking and any claims of fear of return.

During their time in custody, UCs receive medical screenings and child-appropriate activities and humanitarian supplies. They also must generally be held separately from unrelated adults, impacting CBP's holding capacity. This means that DHS must expend resources to quickly process, refer, and transfer UCs to the Office of Refugee Resettlement's care. This time-consuming and resource-intensive process must always be followed for

UCs encountered at the southern border, regardless of whether emergency border circumstances are present.

See

8 U.S.C. 1232(a)(2)(A)(ii).

In addition, UCs who are nationals or habitual residents of a contiguous country may, in certain circumstances, be permitted to withdraw their applications for admission and voluntarily return to their respective countries of nationality or habitual residence.

See

8 U.S.C. 1232(a)(2). To determine whether such an outcome is permissible, such UCs are screened for indicators of trafficking or credible evidence that they are at risk of being trafficked upon return, whether they are able to make an independent decision to withdraw their applications, and whether they have any fear of return owing to a credible fear of persecution.

See

8 U.S.C. 1232(a)(2)(A), (a)(4). However, as a matter of longstanding policy, CBP screens all UCs—even those from non-contiguous countries—in this manner.

Because one of the primary purposes of the rule is to alleviate undue strain on the limited resources of the border security and immigration systems, the Departments found that they must consider the operational burden that results from all UC encounters at the border. That is why UC encounters from all countries, not just from contiguous countries, should be considered by the Secretary when making a factual determination that average daily encounters at the southern border have exceeded or fallen below the requisite thresholds contained in the rule and the Proclamation.

Also informing the Departments' decision to reconsider the IFR's approach is that in recent months, encounters of UCs from non-contiguous countries have grown relative to other encounters. That growth, which adds operational burdens separate from those inherent in the processing of individuals for expedited removal, increases the distorting effects of excluding these UCs. Specifically, the Departments had observed from June 2023 through May 2024 that rates of encounters of UCs from non-contiguous countries had generally accounted for about 6.5 percent of total encounters of all non-contiguous nationalities, and comprised about 15 percent of encounters of nationals of El Salvador, Guatemala, and Honduras.

However, while encounters of UCs from non-contiguous countries have decreased in absolute terms since June 2024, such encounters have not decreased in proportion with the decreases seen among single adults and individuals in family units. Rather, the UCs' share of total non-contiguous encounters has increased to 8.9 percent, including 24 percent of all encounters of nationals of El Salvador, Guatemala, and Honduras.

As a result, the share of total encounters attributable to UCs from non-contiguous countries increased from 4.6 percent from June 2023 to May 2024 to 6.4 percent from June 2024 to August 2024, and the share of all UCs increased from 6.2 percent to 9.4 percent.

See

OHSS analysis of July 2024 OHSS Persist Dataset and data downloaded from UIP on September 3, 2024 (USBP Encounters by Fam Status tab).

See

OHSS analysis of July 2024 OHSS Persist Dataset and data downloaded from UIP on September 3, 2024 (USBP Encounters by Fam Status tab). While the monthly average single adult encounters fell 53 percent between June 2023-May 2024 and June 2024-August 2024, and the monthly average number of encounters of individuals in family units fell 69 percent, encounters of non-contiguous UCs fell just 42 percent, and encounters of UCs overall fell just 37 percent.

Id.

OHSS analysis of July 2024 OHSS Persist Dataset and data downloaded from UIP on September 3, 2024 (USBP Encounters by Fam status tab).

With the two changes just described, the rule will continue to serve the purposes that the IFR pursued from the start. First, the rule continues to target emergency border circumstances exceeding the Departments' capacity to effectively process, detain, and remove, as appropriate, the noncitizens encountered; Section III.D.1 of this preamble describes why the rule's thresholds continue to reflect those circumstances, accounting for the inclusion of UCs from non-contiguous countries.

Second, the rule will continue to deactivate when a decrease in encounters means that those emergency border circumstances no longer exist. Although the change to require that the 7-consecutive-calendar-day average must remain below 1,500 encounters for 28 consecutive days appropriately ensures that the rule does not deactivate prematurely, the rule will continue to deactivate where a decrease is likely to be genuinely sustained. Encounter levels are driven by a variety of factors, many of which are external to the United States and difficult to predict, such as natural disasters, economic changes, and political instability. However, the Departments believe, based on past experience, that the Departments may experience an average daily encounter rate below 1,500 for 28 consecutive days. In fact, from FY 2013 through FY 2019, the 7-consecutive-calendar-day USBP encounter average was below 1,500 encounters for 28 consecutive days 71 percent of the time.

Even since the IFR was promulgated, encounters have dropped to levels indicating that the threshold in section 2(a) of the Proclamation will be met if migration dynamics change for a sustained period. If, consistent with the June 3 Proclamation, one excludes UCs from non-contiguous countries, the Departments have observed 40 separate days between June 5, 2024, and August 31, 2024, with encounters within 15 percent of 1,500 (

i.e.,

below 1,725).

And if, consistent with the September 27 Proclamation, one includes such UCs, the Departments have observed 15 such days.

These single-day figures suggest that the threshold for discontinuation, as revised, will be met if migration dynamics change for a sustained period.

See

OHSS analysis of July 2024 OHSS Persist Dataset (Trigger Analysis tab). The Departments rely on data from FY 2013 through FY 2019 and not data from the pandemic period given the unique circumstances dictating migratory trends during the latter time.

See

OHSS analysis of data downloaded from UIP on September 3, 2024 (Section 2c Encounters tab).

See id.

2. Clarifying Changes to Regulatory Text

This final rule also makes clarifying changes to the regulatory text. In §§ 208.35(b)(2) and 1208.35(b)(2)(iii), the Departments removed from the definition of “reasonable probability” the clause: “that the alien would be persecuted because of his or her race, religion, nationality, membership in a particular social group or political opinion, or tortured, with respect to the designated country or countries of removal.” The Departments believe that the remaining definition of “reasonable probability”—“substantially more than a reasonable possibility, but somewhat less than more likely than not”—accurately defines the reasonable probability standard. The deleted clause describes what the AO or IJ is assessing for rather than what the standard means, so it need not be part of the standard's definition.

3. Other Technical Changes

The final rule also implements two technical changes. First, the rule replaces the term “alien” with “noncitizen” where it appears in 8 CFR 1208.35.

See

8 CFR 1001.1(gg). Second, the rule amends 8 CFR 208.35(a)(2)(i)(C) and 1208.35(a)(2)(i)(C) as well as the provisions of the Circumvention of Lawful Pathways rule at 8 CFR 208.33(a)(3)(i)(C) and 1208.33(a)(3)(i)(C) to update the cross-references to the definition of “victim of a severe form of trafficking in persons.” Specifically, the rule replaces the cross-references to 8

CFR 214.11 with cross-references to 8 CFR 214.201. This change recognizes that on August 28, 2024, after the Departments published the IFR, DHS's rule Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 89 FR 34864 (Apr. 30, 2024),

became effective, which moved the definition of “victim of a severe form of trafficking in persons” from § 214.11 to § 214.201.

See id.

at 34931-32.

see also

INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Secretary and the Attorney General to “provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with [the INA]”). And section 208(b)(1)(A) of the INA, 8 U.S.C. 1158(b)(1)(A), authorizes the Secretary or the Attorney General to grant asylum in their discretion. The INA also provides the Secretary and the Attorney General authority to publish regulations governing their respective roles regarding apprehension, inspection and admission, detention and removal, withholding of removal, deferral of removal, and release of noncitizens encountered in the interior of the United States or at or between POEs.

See

INA 103(a)(3), (g)(2), 235(b)(1)(B)(iii)(III), (B)(iv), (C), 241(a)(3), (d)(2)(B), 8 U.S.C. 1103(a)(3), (g)(2), 1225(b)(1)(B)(iii)(III), (B)(iv), (C), 1231(a)(3), (d)(2)(B);

see also

INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A).

Consistent with these authorities, the Departments have promulgated other limitations or conditions on asylum eligibility, including some provisions that Congress later adopted and codified in the INA.

See

Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980) (imposing firm resettlement bar); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 FR 30674, 30678, 30683 (July 27, 1990) (promulgating 8 CFR 208.14(c) (1990), which provided for mandatory regulatory bars to asylum for those convicted in the United States of a particularly serious crime or those who constitute a danger to the security of the United States while retaining a prior regulatory bar to asylum for noncitizens who were firmly resettled in a third country prior to arriving in the United States); Asylum Procedures, 65 FR 76121, 76134 (Dec. 6, 2000) (providing that an applicant does not have a well-founded fear of persecution if they could avoid persecution by internally relocating);

see also

8 CFR 208.15, 1208.15 (2020).

The INA's safe-third-

country provision prohibits a noncitizen from applying for asylum if the noncitizen “may be removed, pursuant to a bilateral or multilateral agreement” to a safe third country in which the noncitizen would not be subject to persecution and “would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).

These regulations were amended by

Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,

85 FR 80274 (Dec. 11, 2020), but the amendments were preliminarily enjoined.

See Pangea Legal Servs.

U.S. Dep't of Homeland Sec.,

512 F. Supp. 3d 966, 969 (N.D. Cal. 2021). This order remains in effect,

and thus the 2020 version of these provisions—the version immediately preceding the enjoined amendment—is currently effective.

The rule does not conflict with or otherwise render the firm-resettlement bar or safe-third-country bar superfluous; instead, this rule and the statutory bars apply independently.

First, this rule has a different scope. In contrast to those statutory bars, this limitation on asylum eligibility only applies to those who enter the United States during emergency border circumstances.

See

8 CFR 208.35(a)(1), 1208.35(a)(1). Additionally, unlike those who are subject to the firm-resettlement or safe-third-country bars, those who are subject to this limitation on asylum eligibility are not categorically barred from applying for asylum or from being eligible for asylum, as application of the rule's limitation on asylum eligibility will be considered on a case-by-case basis, including to determine if exceptional circumstances apply to overcome this limitation.

The rule also serves a different purpose than those statutory bars. The INA's firm resettlement and safe-third-country provisions limit asylum eligibility and applications, respectively, for noncitizens who have available sustained protection in another country, and they help protect against forum shopping.

See Rosenberg

Yee Chien Woo,

402 U.S. 49, 55-56 (1971) (noting that the concept of firm resettlement is historically rooted in the notion of providing “a haven for the world's homeless people” while encouraging “other nations to do likewise”);

see also

8 CFR 208.30(e)(2), 235.3(b)(4);

id.

208.13(b)(1)-(2), 1208.13(b)(1)-(2) (defining the grounds for asylum eligibility);

id.

208.16(b)-(c), 1208.16(b)-(c) (defining the grounds for statutory withholding of removal and CAT protection). A noncitizen has a “credible fear of persecution” if “there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.” INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).

Just as the statute is silent on the availability of screening procedures for statutory withholding of removal and CAT protection, it is also silent on the standard applied during such screenings. By regulation, the Departments have applied the “significant possibility” standard to also screen for potential eligibility for statutory withholding of removal and CAT protection,

see

8 CFR 208.30(e)(2)-(3), 1003.42(d): AOs must determine whether “there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien can establish eligibility . . . for withholding of removal under section 241(b)(3) of the Act,” 8 CFR 208.30(e)(2), and whether the noncitizen “shows that there is a significant possibility that the alien is eligible for withholding of removal or deferral of removal under the Convention Against Torture, pursuant to § 208.16 or § 208.17,” 8 CFR 208.30(e)(3). If the AO determines that the noncitizen does not have a credible fear of persecution or torture in the proposed country of removal, the noncitizen may request that an IJ review that determination.

See

INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.16(b)-(c), 208.30(g), 208.33(b)(2)(v), 1208.16(b)-(c), 1208.30(g).

To the extent commenters allege that the Departments are not applying the “significant possibility” standard to screen for asylum eligibility—such as for application of the limitation on asylum eligibility—the commenters are mistaken. Under this rule, the AO or IJ determines whether there is a significant possibility that the noncitizen would ultimately be able to demonstrate by a preponderance of the evidence that the limitation does not apply or that they meet the exception for exceptionally compelling circumstances. The “significant possibility” standard applies by statute, section 235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v), and the regulation does not in any way displace that standard, by its terms or otherwise. The Departments did not explicitly include this language in the regulation itself. This is because the provisions regarding credible fear screenings at 8 CFR 208.35(b) and 1208.35(b)(2) generally explain the order of operations—instructing the AO or IJ to consider the limitation first before considering the rest of the asylum claim. In other rules adopting conditions and limitations on asylum eligibility, the Departments have consistently used the regulatory text to explain the order of operations for consideration of the limitations during credible fear screenings without explicitly restating the applicable statutory standard,

while at the same time explaining that the “significant possibility” standard applies in the preamble.

Deviating from the Departments' practice here could wrongly imply that, in other regulations pertaining to the credible fear process, the default standard of proof for AO and IJ determinations is something other than the “significant possibility” standard. To avoid that unwanted implication, the Department declines to modify the text of §§ 208.35 and 1208.35 as well. The “reasonable probability” standard does not affect or change the “significant possibility” standard used to screen for asylum eligibility, which, as discussed above, is set by statute and remains in effect for asylum claims in the credible fear process. Accordingly, the Departments disagree with the claim that the use of the “reasonable probability” standard for the purposes of screening for potential eligibility for statutory withholding of removal and CAT protection would eliminate, or in any way affect, the “significant possibility” standard as it applies to screening for asylum eligibility.

For example, under the Circumvention of Lawful Pathways rule, “[t]he asylum officer shall first determine whether the alien is covered by the presumption . . . and, if so, whether the alien has rebutted the presumption[.]” 8 CFR 208.33(b)(1);

see also

8 CFR 1208.33(b)(2) (“The immigration judge shall first determine whether the alien is covered by the presumption at 8 CFR 208.33(a)(1) and 1208.33(a)(1) and, if so, whether the alien has rebutted the presumption in accordance with 8 CFR 208.33(a)(3) and 1208.33(a)(3).”);

Asylum Eligibility and Procedural Modifications,

84 FR 33829, 33843-45 (July 16, 2019) (interim final rule amending and adding provisions at 8 CFR 208.30(e)(5)(ii) through(iii), 1003.42(d)(2) and(3), and 1208.30(g)(1)(i) through (ii), providing the order of operations for applying two now-rescinded bars to asylum eligibility); 88 FR at 31319;

id.

at 31449 (adding amendatory instructions to remove regulatory provisions added to implement the bars to asylum eligibility adopted in two prior rules).

See, e.g.,

89 FR at 48755 (explaining that, during the credible fear interview, “the AO will first determine whether there is a significant possibility that the noncitizen is eligible for asylum in light of the [rule's] limitation on asylum eligibility”);

id.

at 48757-58 (discussing the application of the “significant possibility” standard under the rule during IJ review of a negative credible fear determination); 84 FR at 33837 (“If there is a significant possibility that the alien is not subject to the eligibility bar (and the alien otherwise demonstrates that there is a significant possibility that he or she can establish eligibility for asylum), then the alien will have established a credible fear.”);

Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,

83 FR 55934, 55943 (Nov. 9, 2018) (“If there is a significant possibility that the alien is not subject to the eligibility bar (and the alien otherwise demonstrates sufficient facts pertaining to asylum eligibility), then the alien will have established a credible fear.”).

The Departments also disagree that the rule's application of the “reasonable probability” standard to screen for potential eligibility for statutory withholding of removal or CAT protection is inconsistent with the “significant possibility” standard under the expedited removal statute. As the Departments observed previously, “Congress clearly expressed its intent that the `significant possibility' standard be used to screen for asylum eligibility but did not express any clear intent as to which standard should apply to other applications.” 88 FR at 11742. Section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and FARRA section 2242 are silent as to what screening standards and procedures are to be employed in determining potential eligibility for statutory withholding of removal or CAT protection, and the INA elsewhere confers broad discretionary authority to establish rules and procedures for implementing those provisions.

See, e.g.,

INA 103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3), (g)(2). Accordingly, the Departments have some discretion to articulate the screening standard for claims for statutory withholding of removal and CAT protection. As further discussed in Section III.C.3 of this preamble, the Departments continue to believe that during the emergency border circumstances described in the IFR and this rule, the “reasonable probability” screening standard is more appropriate in light of the ultimate burden of proof for statutory withholding of removal and CAT protection and better captures the population of noncitizens with potentially valid claims for such protection.

See

89 FR at 48745-47.

Thus, despite the claims of some commentators, the rule does not effectively shut down the U.S. asylum system or deviate from applicable statutory standards. Noncitizens still

may seek asylum and protection in the United States.

d. General Comments on International Law

Comment:

Commenters generally asserted that the rule violates international law. A commenter wrote that seeking asylum is a human right guaranteed by international law and the rule unjustly denies people this right. In this regard, a commenter asserted that the use of emergency border circumstances as a justification for promulgating the rule is insufficient to justify violating international law and that the lack of a time frame or sunset provision denies access to migrants seeking asylum and places them at risk of refoulement. Commenters claimed that the rule imposes prohibited penalties on asylum seekers, bars refugees from a path to citizenship, and impermissibly discriminates based on manner of entry, race, and nationality. A commenter stated that regulations that deny access to asylum based on arbitrary factors that do not relate to a person's status as a refugee are inconsistent with the Refugee Convention and that the United States has an obligation under the Convention to provide a “fair and efficient refugee status determination procedure” to individuals in the U.S. asylum process.

Commenters were concerned that the rule violates the United States's non-refoulement obligations under the Refugee Convention (through the Refugee Protocol) and Article 3 of the CAT. For example, commenters predicted many noncitizens would not be able to satisfy the comparatively higher standards of proof for statutory withholding of removal and CAT protection claims and that, in turn, would lead to the refoulement of persons who, if not for the rule's limitation on asylum eligibility, would have been granted asylum. Several of these commenters also asserted that statutory withholding of removal and CAT protection are insufficient to satisfy the United States's non-refoulement obligations because they afford lesser protection than asylum. Commenters expressed apprehension that the rule would result in the turning away of migrants who seek refuge at the southern border.

Another commenter wrote that the rule is consistent with U.S. commitments under the Refugee Protocol and the CAT, reasoning that neither is self-executing and therefore the United States is bound only by its own law implementing these treaties. The commenter acknowledged that the United States implements its non-refoulement obligations through the withholding of removal statute at section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). Another commenter, however, asserted that the argument that asylum is discretionary under U.S. law and therefore the rule does not violate the Refugee Protocol is incorrect as a matter of international law, even if true under domestic law, because parties to the Refugee Convention must provide asylum and protection from refoulement to those who meet the definition of “refugee.”

Response:

This rule is consistent with the United States' international treaty obligations. Three primary documents govern the rights of refugees and corresponding obligations of states in international law: the Refugee Convention; the Refugee Protocol, which incorporates Articles 2 through 34 of the Refugee Convention; and the CAT. 88 FR at 31384. Together, these documents provide a framework for states to provide protection to noncitizens fleeing persecution or torture and establish the principle of non-refoulement, which prohibits states from returning refugees to territories in specific circumstances.

Id.

These treaties, however, do not prescribe or impose any particular minimum procedures for implementation of non-refoulement obligations. Although the United States is a party to the 1967 Refugee Protocol

and the CAT, these treaties are not directly enforceable in U.S. law.

See INS

Stevic,

467 U.S. 407, 428 & n.22 (1984);

Al-Fara

Gonzales,

404 F.3d 733, 743 (3d Cir. 2005) (“The 1967 Protocol is not self-executing, nor does it confer any rights beyond those granted by implementing domestic legislation.”);

Omar

McHugh,

646 F.3d 13, 17 (D.C. Cir. 2011) (explaining that the CAT “is non-self-executing and thus does not itself create any rights enforceable in U.S. courts”). Instead, the United States has implemented its obligations through domestic legislation and implementing regulations. The Refugee Convention's non-refoulement obligation is contained in Article 33.1, which prohibits contracting states from returning a refugee to a territory “where his life or freedom would be threatened” on account of an enumerated ground. 19 U.S.T. at 6276, 189 U.N.T.S. at 176. The United States has implemented the non-refoulement provisions of Article 33.1 of the Refugee Convention through the withholding of removal provisions at section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), rather than through the asylum provisions at section 208 of the INA, 8 U.S.C. 1158.

See Cardoza-Fonseca,

480 U.S. at 429, 440-41. The CAT's non-refoulement provision is in Article 3, which prohibits the return of a person to a country where there are “substantial grounds for believing” the person will be tortured. S. Treaty Doc. No. 100-20 at 20, 1465 U.N.T.S. 85, 114. The United States has implemented its obligations under Article 3 of the CAT through regulations.

See

FARRA, Public Law 105-277, sec. 2242(b), 112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C. 1231 note);

see also

United Nations High Commissioner for Refugees (“UNHCR”),

Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees

16 para. 25 (2019 ed.) (“[T]he granting of asylum is not dealt with in the 1951 Convention or the 1967 Protocol”). Article 34 “is precatory; it does not require the implementing authority actually to grant asylum to all those who are eligible.”

Cardoza-Fonseca,

480 U.S. at 441. Because the limitation on asylum eligibility does not affect ultimate eligibility for statutory withholding of removal or protection under the CAT regulations, the rule is consistent with U.S. non-refoulement obligations under the Refugee Protocol (incorporating,

among other things, Article 33 of the Refugee Convention) and the CAT.

See R-S-C,

869 F.3d at 1188 n.11 (explaining that “the Refugee Convention's nonrefoulement principle—which prohibits the deportation of aliens to countries where the alien will experience persecution—is given full effect by the Attorney General's withholding-only rule”);

Cazun

Att'y Gen. U.S.,

856 F.3d 249, 257 & n.16 (3d Cir. 2017);

Ramirez-Mejia

Lynch,

813 F.3d 240, 241 (5th Cir. 2016).

The Departments agree that asylum is an important form of protection and acknowledge that the right to seek asylum has been recognized under the Universal Declaration of Human Rights (“UDHR”), art. 14, G.A. Res. 217A (III), U.N. Doc. A/810 (1948). The UDHR is a nonbinding human rights resolution of the UN General Assembly, and thus it does not impose legal obligations on the United States.

See Sosa

Alvarez-Machain,

542 U.S. 692, 734-35 (2004) (“[T]he [UDHR] does not of its own force impose obligations as a matter of international law.”).

Moreover, although the rule creates a limitation on eligibility for asylum, the rule does not bar those seeking asylum from taking part in procedures that protect them from refoulement. Under the rule, all noncitizens processed for expedited removal who manifest a fear of return, express an intention to apply for asylum or protection, or express a fear of persecution or torture or a fear of return to their country or the country of removal are referred for a credible fear interview. Even in those cases where the AO determines that the noncitizen has not established a significant possibility that they could ultimately demonstrate by a preponderance of the evidence that they are not subject to the limitation on asylum eligibility or are excepted from it, the noncitizen may still demonstrate credible fear by showing a reasonable probability of persecution or torture. Similarly, even if found ineligible for asylum by an IJ due to the application of the limitation on asylum eligibility, a noncitizen may still demonstrate eligibility for statutory withholding of removal or CAT protection.

The rule is also consistent with the Refugee Convention and the corresponding obligations under international law, including the specific provisions cited by commenters. The rule does not violate the nondiscrimination requirement in Article 3 of the Refugee Convention. Article 3 prohibits discrimination on the basis of “race, religion or country of origin.” 19 U.S.T. at 6264, 189 U.N.T.S. at 156. The rule does not discriminate on the basis of any of the protected characteristics described in Article 3. This rule is limited to the southern border because that is the U.S. border where emergency circumstances exist. The Departments acknowledge that this limitation will affect those noncitizens with easier access to the southern border and not those with easier access to other borders of the United States. However, the rule does not treat such noncitizens differently on that basis; the rule applies equally based on the actions of a noncitizen during emergency border circumstances. Specifically, the application of this rule is limited to those who enter the United States across the southern border during emergency border circumstances described in the Proclamation and this rule, are not described in section 3(b) of the Proclamation, and do not establish the existence of exceptionally compelling circumstances. For the same reason, the rule does not violate other antidiscrimination principles described in other international human rights treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination, arts. 2-5, Dec. 21, 1965, T.I.A.S. No. 94-1120, 660 U.N.T.S. 195, and the International Covenant on Civil and Political Rights, arts. 2-3, Dec. 16, 1966, T.I.A.S. No. 92-908, 999 U.N.T.S. 171.

Similarly, the rule is consistent with Article 31.1 of the Refugee Convention, which prohibits states from “impos[ing] penalties” on refugees based on “illegal entry or presence” if such refugees are “coming directly from a territory where their life or freedom was threatened” and “present themselves without delay to the authorities and show good cause for their illegal entry or presence.” 19 U.S.T. at 6275, 189 U.N.T.S. at 174. As the commentary to the Refugee Convention explains, the term “penalties” in Article 31.1 refers “to administrative or judicial convictions on account of illegal entry or presence, not to expulsion.” UNHCR,

The Refugee Convention, 1951: The Travaux Préparatoires Analyzed with a Commentary by Dr. Paul Weis

219,

https://www.unhcr.org/us/media/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul-weis; see Cazun,

856 F.3d at 257 & n.16 (rejecting argument that the reinstatement bar on asylum was a “penalty” within the meaning of Article 31.1). The rule does not change any rules or policies relating to detention or convictions for unlawful entry or presence. The Departments acknowledge that the Ninth Circuit concluded in

East Bay III,

993 F.3d at 674, that the bar to asylum at issue in that case violated Article 31.1 of the Refugee Convention because it imposed a “penalty.” As described in the IFR, the rule here does not create a categorical bar to asylum, but instead a limitation on asylum eligibility, and

East Bay III

accordingly does not address the lawfulness of this rule. 89 FR at 48735. Moreover, the Ninth Circuit's conclusion was erroneous because the denial of discretionary relief is not a penalty within the meaning of Article 31.1.

Id.

at 48736.

Comment:

One commenter asserted that the IFR conflicts with the United States Supreme Court's decisions in

Murray

Schooner Charming Betsy,

6 U.S. (2 Cranch) 64, 118 (1804), which generally states that ambiguous U.S. statutes should be interpreted to avoid conflicts with international law where possible, and

INS

Cardoza-Fonseca,

480 U.S. 421, 436-37 (1987), which explained that “one of Congress' primary purposes” when passing the Refugee Act of 1980 “was to bring United States refugee law into conformance with the 1967 [Refugee Protocol].”

Response:

The Departments disagree with the commenter that the IFR conflicts with

Charming Betsy

Card

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