Application of Certain Mandatory Bars in Fear Screenings

Federal RegisterDec 18, 2024

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

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

RIN 1615-AC91

Application of Certain Mandatory Bars in Fear Screenings

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Final rule.

SUMMARY:

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

DATES:

This final rule is effective January 17, 2025.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Legal Authority

III. Provisions of the Final Rule

IV. Response to Public Comments on the Proposed Rule

A. Summary of Comments on the Proposed Rule

B. General Feedback on the Proposed Rule

1. General Support for the Proposed Rule

C. Legal Authority and Background

1. DHS Legal Authority

2. DHS's Justification, Background, and Statements on the Need for the Rule

3. Other/General Comments on Legal Authority and Background

D. Proposed Application of Mandatory Bars

1. Noncitizens in Credible Fear Screenings (8 CFR 208.30)

2. Noncitizens Subject to Circumvention of Lawful Pathways Presumption of Ineligibility, Statutory Withholding Screen (8 CFR 208.33)

3. Inclusion of Specific Bars (

e.g.,

Particularly Serious Crimes Bar, Security Bar)

4. Exclusion of Specific Bars (

e.g.,

“Firm Resettlement Bar,” INA Secs. 208(a)(2), (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2), (b)(2)(A)(vi))

5. Exclusion of CAT Screenings (Withholding of Removal) (8 CFR 208.30(e)(3), 208.33(b)(2)(i))

6. Other/General Comments on the Application of Bars

7. Screening Procedures, AO Determinations, Immigration Judge Review of Negative Fear Determinations (

e.g.,

Discretionary vs. Requirement, Guidance, Cases Where Bars Are Outcome-Determinative)

8. Burden of Proof

9. Other General/Mixed Feedback and Suggested Alternatives

E. Other Issues Relating to the Rule

1. Coordination With DOJ in the Rulemaking

2. Security Bars and Processing Rulemaking

3. Out of Scope Comments

F. Statutory and Regulatory Requirements

1. Administrative Procedure Act

2. Regulatory Impact Analysis Impacts and Benefits (E.O. 12866 and E.O. 13563)

3. Paperwork Reduction Act (

e.g.,

Comments on Forms and Burden Estimates)

4. Other/General Comments on Statutory and Regulatory Requirements (

e.g.,

Unfunded Mandates Reform Act, Federalism, Civil Justice Reform, Family Assessment, Indian Tribal Governments, Protection of Children from Environmental Health and Safety Risks, National Environmental Policy Act)

5. Out of Scope

V. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

B. Regulatory Flexibility Act (RFA)

C. Unfunded Mandates Reform Act of 1995 (UMRA)

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

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Family Assessment

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

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

J. National Environmental Policy Act (NEPA)

K. Paperwork Reduction Act (PRA)

I. Background

A. Mandatory Bars NPRM

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

B. Securing the Border

After DHS issued the NPRM, on June 3, 2024, the President signed Presidential Proclamation 10773,

Securing the Border,

under sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), finding that because the border security and immigration systems of the United States were unduly strained, the entry into the United States of certain categories of noncitizens was detrimental to the interests of the United States, and suspending and limiting the entry of such noncitizens. 89 FR 48487, 48487-91 (June 7, 2024) (“June 3 Proclamation”). The June 3 Proclamation directed DHS and DOJ to promptly consider issuing any regulations “as may be necessary to address the circumstances at the southern border, including any additional limitations and conditions on asylum eligibility that they determine are warranted, subject to any exceptions that they determine are warranted.” 89 FR at 48491 (sec. 3(d)).

DHS and DOJ subsequently published an Interim Final Rule (IFR) on June 7, 2024, during the comment period of this rule, to implement the policies and objectives of the June 3 Proclamation. 89 FR 48710 (June 7, 2024) (Securing the Border IFR). The Securing the Border IFR effectuated three key changes to the process for those noncitizens who are encountered at the southern border during the emergency border circumstances giving rise to the suspension and limitation on entry under the June 3 Proclamation: (1) adding a limitation on asylum eligibility; (2) rather than asking specific questions of every noncitizen encountered and processed for expedited removal, providing general notice regarding the process for seeking asylum and related protection and referring a noncitizen for a credible fear interview only if the noncitizen manifests a fear of return, expresses an intention to apply for asylum or protection, or expresses a fear of persecution or torture or a fear of return to his or her country or the country of removal; and (3) for those found not to have a credible fear of persecution for

asylum purposes because of the IFR's limitation on asylum eligibility, screening for statutory withholding of removal and CAT protection under a “reasonable probability” standard.

Id.

at 48718. In the credible fear screening context, if there is not a significant possibility that the noncitizen could demonstrate that the limitation on asylum eligibility does not apply to them or could demonstrate by a preponderance of the evidence that they are eligible for an exception to the limitation (

i.e.,

there is not a significant possibility that the noncitizen could establish eligibility for asylum), the AO will enter a negative credible fear determination with respect to the noncitizen's asylum claim. 8 CFR 208.35(b)(1). The AO then screens the noncitizen for statutory withholding of removal and protection under CAT by determining whether there is a reasonable probability the noncitizen would face persecution or torture in the country (or countries) of removal. 8 CFR 208.35(b)(2). The reasonable probability standard is defined as “substantially more than a `reasonable possibility' but somewhat less than more likely than not.” 8 CFR 208.35(b)(2)(i).

On September 27, 2024, the President issued a proclamation amending the June 3 Proclamation. 89 FR 80351 (Oct. 2, 2024) (September 27 Proclamation). The September 27 Proclamation amended the calculations for when the suspension and limitation on entry established in the June 3 Proclamation would be discontinued, continued, or reactivated.

Id.

On October 7, 2024, the Departments published a final rule responding to public comments on the IFR and implementing changes that parallel those made in the September 27 Proclamation. Securing the Border Final Rule, 89 FR 81156 (Oct. 7, 2024) (Securing the Border final rule).

This rule refers generally to the “Securing the Border rule” when it is not necessary to specify between the Securing the Border IFR or Securing the Border final rule.

II. Legal Authority

The Secretary of Homeland Security's (Secretary) authority for this rule is found in various provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101

et seq.,

as amended by the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, as amended. The INA charges the Secretary “with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens,” except insofar as those laws assign functions to the President or other agencies. INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also authorizes the Secretary to establish regulations and take other actions “necessary for carrying out” the Secretary's authority to administer and enforce the immigration laws. INA secs. 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3);

see also

6 U.S.C. 202 (authorities of the Secretary), 271(a)(3) (conferring authority on U.S. Citizenship and Immigration Services (USCIS) Director to establish “policies for performing [immigration adjudication] functions”).

Under the INA, DHS has authority to adjudicate asylum applications and to conduct credible fear interviews, make credible fear determinations in the context of expedited removal, and to establish procedures for further consideration of asylum applications after an individual is found to have a credible fear. INA sec. 103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA sec. 208(b)(1)(A), (d)(1), (d)(5)(B), 8 U.S.C. 1158(b)(1)(A), (d)(1), (d)(5)(B); INA sec. 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B);

see also

6 U.S.C. 271(b) (providing for the transfer of the Commissioner of Immigration and Naturalization's functions relating to adjudication of asylum and refugee applications to the Director of the Bureau of Citizenship and Immigration Services, now USCIS); 6 U.S.C. 557 (providing that references to any officer from whom functions are transferred under the HSA are to be understood as referring to the Secretary of Homeland Security). Within DHS, the Secretary has delegated some of those authorities to the Director of USCIS. USCIS AOs conduct credible fear interviews, make credible fear determinations, and determine whether a noncitizen's

asylum application should be granted, all of which are subject to review by a supervisory AO.

See

DHS, Delegation to the Bureau of Citizenship and Immigration Services, No. 0150.1 (June 5, 2003); 8 CFR 208.2(a), 208.9, 208.14(b), 208.30(b), (e)(6)(i), (e)(8).

For purposes of this preamble, DHS uses the term “noncitizen” to be synonymous with the term “alien” as it is used in the INA.

See

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

Barton

Barr,

590 U.S. 222, 226 n.2 (2020).

The INA also authorizes the Secretary and Attorney General to publish regulatory amendments governing their respective roles regarding inspection and admission, detention and removal, withholding of removal, and deferral of removal.

See

INA secs. 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.

The United States is a party to the 1967 Protocol Relating to the Status of Refugees, January 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (“Refugee Protocol”), which incorporates Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (“Refugee Convention”). Article 33 of the Refugee Convention generally prohibits parties to the Convention from expelling or returning (“refouler”) “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Id.

Congress has implemented U.S. non-refoulement obligations under the 1967 Protocol through the INA, as amended by the Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, extending the form of protection from removal now known as statutory withholding of removal.

See

INA sec. 241(b)(3), 8 U.S.C. 1231(b)(3) (formerly 8 U.S.C. 1253(h) (1952));

see also

Memorandum for the Record, from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations Directorate, USCIS,

Re: Asylum Division Training, Staffing, Capacity, and Credible Fear Procedures

(Sept. 26, 2024).

Finally, DHS disagrees that the consideration of mandatory bars is categorically more complex than the consideration of the full array of issues that are currently presented in screening cases on a routine basis. For example, determining whether a noncitizen's testimony is credible, whether harm experienced or feared was or would be inflicted on account of a protected ground, or whether torture feared would be inflicted with the consent or acquiescence of a person acting in an official capacity are all potentially complex issues that AOs regularly consider and analyze in fear screenings. As such, and in view of AOs' training and experience previously described, the Department does not agree that a noncitizen's ability to obtain counsel for such an interview presents new or greater concerns than those presented by a screening interview where mandatory bars are not considered.

Comment:

A commenter expressed concern that AOs would rely on evidence such as Interpol Red Notices issued by authoritarian regimes as a basis for considering the applicability of bars.

Response:

The Department has implemented measures to combat the impact of abusive or unwarranted INTERPOL notices separate and apart from this rule. For example, DHS has issued internal guidance on the appropriate handling of INTERPOL notices that are suspected of having been issued by a country for the purpose of persecuting an individual or otherwise appear to be prohibited or noncompliant.

Comment:

A few commenters expressed concern regarding the ability to collect and present evidence during credible fear screenings. The commenters stated that the inability to compile evidence would adversely impact noncitizens, as they would not be able to gather evidence disputing the application of a bar. Commenters stated that consideration of the bars to asylum and statutory withholding of removal in credible fear or reasonable fear interviews does not afford an asylum seeker the opportunity to present the extensive evidence needed to rebut a finding that one of the asylum bars applies. Commenters stated that the expedited removal process does not afford sufficient opportunity for noncitizens to gather the evidence needed to demonstrate a bar does not apply to them and that the rule would require noncitizens to understand highly complex bars to eligibility that newly arriving people cannot be expected to understand. Commenters asserted that often, the evidence these bars apply comes from unverified or difficult-to-verify sources. Several commenters opposed the proposed rule on the basis that detained noncitizens in expedited removal proceedings would have difficulty discussing or adequately defending themselves against the application of mandatory bars because of the effect of trauma resulting from past harm or their journey to the United States, hunger, and linguistic or cultural barriers.

Response:

The Department disagrees that this rule would negatively impact noncitizens in this manner. AOs have a duty to elicit all relevant and useful information on a fear claim.

See, e.g.,

8 CFR 208.30(d). Credible testimony alone may be the basis of a positive fear determination without the need for any corroborative documentary evidence. Where an AO exercises discretion to consider a mandatory bar in a fear screening, the AO will provide the noncitizen with an opportunity to present evidence that the bar does not apply, and credible testimony alone may be sufficient evidence to make that showing. As noted above, AOs have training and experience in the substantive application of mandatory bars and in non-adversarial interviewing and eliciting testimony and are therefore well-positioned to develop and evaluate the record in such cases, including weighing the reliability and probative value of available evidence.

Further, all credible fear and reasonable fear determinations undergo supervisory review prior to service.

See

USCIS,

RAIO Directorate—Officer Training: Mandatory Bars

(May 9, 2013); USCIS,

RAIO Directorate—Officer Training: Interviewing—Introduction to the Non-Adversarial Interview

(Apr. 24, 2024); USCIS,

RAIO Directorate—Officer Training: Interviewing—Eliciting Testimony

(Apr. 24, 2024).

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

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

to ensure noncitizens have a fair opportunity to provide any evidence necessary to evaluate their claim, which under this rule may include the applicability of any bars or the availability of any exceptions or exemptions.

See

USCIS, “RAIO Directorate—Officer Training: Interviewing—Eliciting Testimony” (Dec. 20, 2019).

DHS rejects the notion that it is categorically more difficult for a noncitizen to discuss issues surrounding mandatory bars than it is to discuss other issues that are already the subject of screening interviews. AOs are trained to work with noncitizens who are experiencing the effects of trauma and to communicate across cultural and linguistic barriers.

AOs routinely interview noncitizens in protection screening interviews on matters that many find challenging to discuss, including torture, sexual assault, familial violence, and the deaths of family members.

See

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

The permissive nature of the rule is also well-tailored to a situation where the noncitizen is unable to testify in depth due to the effects of trauma, or a situation where the noncitizen may be better able to provide evidence that a mandatory bar does not apply to them in a full hearing. As explained in the proposed rule, AOs should only apply a mandatory bar in a screening interview where there is “easily verifiable information” that the bar may apply, and even then, to only do so if the inquiry can be done efficiently. 89 FR at 41354. Should the AO determine that the issue would be better considered at a later stage, they retain the discretion under this proposed rule to decline to consider mandatory bars during the screening determination.

Comment:

Many commenters expressed concerns regarding the application of mandatory bars by AOs and officer discretion, emphasizing that the application of the bars is complex, and asserting that immigration judges—not AOs—should evaluate the complex legal issues associated with the application of the mandatory bars. Several commenters noted that bars to asylum and statutory withholding of removal can involve complex factual and legal inquiries, with some pointing out that DHS itself, in a prior rulemaking removing bars from consideration in credible fear screenings, concluded that such a “fact-intensive inquiry requiring complex legal analysis [] would be more appropriate in a full adjudication before an asylum officer or in section 240 proceedings with the availability of judicial review than in credible fear screenings.” 87 FR 18078, 18093 (Mar. 29, 2022) (“Asylum Processing IFR”). Commenters argued that DHS's representation that AOs would consider bars only in those cases where there is easily verifiable evidence available to the AO that in their discretion warrants an inquiry into a bar and where the AO is confident that they can consider that bar efficiently is insufficient given the complexity of this area of the law.

Commenters stated that the bars could be applied incorrectly, arbitrarily, or unfairly, endangering individuals. Commenters also stated that the application of bars may be based on evidence from foreign entities, which U.S. immigration officials cannot independently verify and which may be inaccurate. Commenters stated that noncitizens in credible and reasonable fear processes should be subject to the same rules and that individuals are entitled to a transparent, humane process. Commenters also stated that AOs could be more likely to issue negative determinations of credible fear as a result of the proposed rule, especially if they do not listen to a noncitizen fully or fairly.

A few commenters discussed officer bias or misconduct during the screening process. Commenters stated that, according to a complaint filed with the DHS Office for Civil Rights and Civil Liberties, AOs scheduled credible fear interviews without notifying the attorney of the interview; incorrectly applied standards when evaluating claims; used adversarial interview techniques on individuals; subjected noncitizens to interviews in languages in which they are not fluent; and failed to provide noncitizens with appropriate language interpreters. Commenters stated that there would be no mechanisms for upholding accountability under the proposed rule. Other commenters stated that the proposed rule would yield an asylum process that is less consistent and transparent, in part because of the discretion with which AOs would ask questions, and the lack of consistency and transparency would thwart efforts to monitor the process.

A commenter asserted that the rule would confuse the role of AOs during the screening process with that of a final adjudicator. According to the commenter, although the proposed rule may purport to avoid adverse outcomes by making the application of the bars at the fear screening stage discretionary instead of mandatory, the distinction would be negligible.

Response:

The Department disagrees with the claim that only immigration judges, not both immigration judges and AOs, should evaluate or apply the mandatory bars. DHS also rejects the notion that the consideration of mandatory bars is categorically more complex than the consideration of the full array of issues that AOs address on a routine basis. AOs regularly assess the mandatory bars in affirmative asylum adjudications and asylum merits interviews (AMIs); therefore, it is not unusual for AOs to consider these issues.

As noted in the NPRM,

see

89 FR at 41353 n.30, DHS has long applied in the expedited removal process the “safe-third-country” bar to eligibility to apply for asylum at INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).

See

8 CFR 208.30(e)(6).

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

lack of accountability through the process. AOs are capable of conducting thorough screening interviews, applying the mandatory bars when applicable, and maintaining fairness throughout the process, as is required by their role.

AOs are well trained in asylum law, and all credible fear and reasonable fear determinations are reviewed by a supervisory asylum officer (SAO) for accuracy and legal sufficiency.

As explained above, AOs receive training in and have experience in non-adversarial interviewing and eliciting testimony, in addition to substantive training on applying mandatory bars and experience applying mandatory bars in full asylum adjudications.

See

USCIS, “RAIO Directorate—Officer Training: Mandatory Bars” (May 9, 2013); USCIS, “RAIO Directorate—Officer Training: Interviewing—Introduction to the Non-Adversarial Interview (Apr. 24, 2024); USCIS, “RAIO Directorate—Officer Training: Interviewing—Eliciting Testimony (Apr. 24, 2024); USCIS, “RAIO Directorate—Officer Training: Interviewing—Working with an Interpreter” (Apr. 24, 2024); USCIS, “RAIO Directorate—Officer Training: Cross-Cultural Communication and Other Factors That May Impede Communication at an Interview” (Apr. 24, 2024).

See

8 CFR 208.30(e)(8);

see also

Memorandum for the Record, from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations Directorate, USCIS,

Re: Asylum Division Training, Staffing, Capacity, and Credible Fear Procedures

(Sept. 26, 2024).

See

The Department also rejects the claim that this new process will confuse the role of the AO with a final adjudicator. At the start of the screening interview, the AO will introduce themselves and explain the interview process so as to avoid confusion about roles or procedures. Noncitizens are also provided with an information sheet on the credible or reasonable fear process that explains the purpose and nature of the screening interview, including possible outcomes and what to expect following the interview. In addition, making a determination regarding a mandatory bar, when considered, does not make an AO any more or less of a final adjudicator than making a determination regarding substantive eligibility, as is currently done and is unaffected by this rule.

Furthermore, the Department disagrees with the claims that, as a result of the complexity of analyzing the mandatory bars, AOs may apply the bars incorrectly or unfairly. Considering the training and experience AOs possess, they are well-suited to exercise discretion to apply mandatory bars in the screening context and, where evidence related to a mandatory bar is too complex to be fully explored in the screening context, to exercise their discretion not to apply the bar in the screening determination. AOs will continue to issue positive fear determinations where a noncitizen demonstrates a credible or reasonable fear at the applicable screening standard, even where there may be indicia of a mandatory bar but the available evidence at the screening stage as to the bar or any available exception or exemption is limited.

DHS acknowledges that properly analyzing bars to asylum and statutory withholding of removal can involve complicated, extensive factfinding and legal analysis. Furthermore, some aspects of this area of law remain unsettled, and different courts have come to different conclusions on certain legal questions related to these bars. USCIS Asylum Officers must follow precedent Board of Immigration Appeals (BIA) and Attorney General decisions, except when they have been modified or overruled by subsequent decisions of the BIA or the Attorney General, or there is a conflicting published opinion on the issue by the U.S. Supreme Court or by the U.S. Court of Appeals with jurisdiction over the matter.

It is not the case that the considerations relating to legal analysis hold true in every case in which a mandatory bar arises. For example, a noncitizen who claims to fear persecution by the government of Colombia on account of political opinion, but who credibly testifies to being a current member of the Revolutionary Armed Forces of Colombia—People's Army, would clearly be barred from both asylum and withholding of removal pursuant to INA sec. 208(b)(2)(A)(v), 8 U.S.C. 1158(b)(2)(A)(v) and INA sec. 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B), as a current member of a designated foreign terrorist organization,

regardless of whether the noncitizen could demonstrate they are a refugee or would be persecuted on account of a protected ground if returned to Colombia. DHS disagrees that AOs should be categorically foreclosed from determining there is no significant possibility or reasonable possibility such an individual could establish eligibility for these forms of relief or protection in a full merits hearing. This rule allows, but does not require, an AO encountering such a scenario to consider the applicable bar in a fear screening and to enter a negative determination with regard to the noncitizen's eligibility for asylum or statutory withholding of removal, preventing the noncitizen from entering a potentially years-long immigration court process in pursuit of relief for which they are ineligible and allowing DHS and EOIR resources that would have been expended on such processes to be conserved for potentially meritorious cases.

See

8 CFR 103.10(b), 1003.1(g);

see also

USCIS, “RAIO Directorate—Officer Training: Reading and Using Case Law” 14 (April 24, 2024).

See

INA secs. 212(a)(3)(B)(i)(V), 237(a)(4)(B), 8 U.S.C. 1182(a)(3)(B)(i)(V), 1227(a)(4)(B);

see also

86 FR 68294 (Dec. 1, 2021).

Comment:

Many commenters expressed concerns with AOs considering mandatory bars during the fear screening stage, instead of immigration judges during section 240 removal proceedings. Commenters stated that applying mandatory bars at the credible fear screening stage would preclude individuals from a full hearing that would provide them the opportunity to prepare their cases, present witnesses and evidence, and allow a court to determine the true nature of foreign convictions, which are often a part of the persecution that the noncitizen experienced in their home country for voicing dissent against an authoritarian government. Commenters stated these decisions should be made by immigration judges and that individuals should be able to appear before an immigration judge or have a fair hearing, be it at the onset of seeking status in the United States or when trying to overturn an order of removal. Commenters asserted that eliminating hearings at an earlier stage would deny noncitizens who have strong or pressing cases and that the proposed rule would increase negative determinations in credible fear and expedited removals.

Several commenters additionally discussed the accuracy of negative credible fear determinations, stating that negative credible fear determinations are often dismissed or reversed after review by an immigration judge. A commenter referenced multiple examples when courts have questioned the reliability and value afforded to credible fear interviews, reasoning that rulings or removal orders have been overturned in part because of unreliable information elicited during the interviews. According to the commenter, the proposed rule would restrict asylum by placing even greater value on screenings that are already

unreliable, and the bars would be applied without the safeguards afforded by section 240 removal proceedings. The commenter further stated that both the Biden and Trump administrations have distanced credible fear interviews from the low screening standard framed by Congress.

Response:

The Department disagrees with the claim that the mandatory bars should only be considered during section 240 removal proceedings before an immigration judge. As discussed above, AOs receive training in and have experience in non-adversarial interviewing and eliciting testimony, in addition to substantive training on applying mandatory bars and experience applying mandatory bars in full asylum adjudications.

See

In addition, the Department disagrees that applying the bars earlier would preclude noncitizens from fully presenting their case compared to if the bars were only applied in a subsequent section 240 removal proceeding. Where evidence related to a mandatory bar is too complex to be fully explored in the screening context or where there is additional evidence that the noncitizen may not be subject to the bar because of an exception or exemption, AOs may exercise their discretion not to apply the mandatory bar in the screening determination. In those cases, if the noncitizen establishes a fear of persecution or torture at the applicable standard, the AO will issue a positive determination so that the bar may be further explored by the immigration judge. Where there is evidence available to the AO that triggers an inquiry into an applicable mandatory bar, and the AO determines that they can address that bar efficiently at the credible fear or reasonable fear interview, then the AO will give the noncitizen the opportunity to establish, at the relevant standard, that the bar would not apply. The Department believes this discretion will ensure that application of the mandatory bars in fear screenings only occurs in cases where USCIS can effectively and accurately apply the bar without creating inefficiencies or frustrating the streamlined nature of the screening process. This rule will allow AOs to, in their discretion, consider bars in the issuance of negative fear determinations only in certain cases where there is sufficient, easily verifiable evidence that a bar applies to a noncitizen, there is a lack of evidence that no bar applies or shall be applied, and the noncitizen is not otherwise able to establish a positive fear of torture at the applicable standard.

Finally, the Department disagrees with comments that question the accuracy and reliability of the screening interviews and determinations and the claim that this rule will restrict asylum. AOs are trained to conduct thorough, fair, and non-adversarial interviews, and AOs play an integral role in the credible fear and reasonable fear screening process. Regarding immigration judge review of AOs' credible fear or reasonable fear determinations, DHS notes that immigration judges have the authority to conduct de novo review of negative credible fear and reasonable fear determinations. 8 CFR 1003.42; 8 CFR 1208.31(g). Otherwise, the procedures for immigration judge decisions vacating screening determinations are outside the scope of this rulemaking.

Comment:

Several commenters objected to the proposed rule on the basis that the rule would curtail the avenues for review of application of the mandatory bars. While the noncitizen would be able to seek review of an AO's negative determination by an immigration judge, they would not be able to appeal the immigration judge's decision to the Board of Immigration Appeals (BIA) or the Federal Court system. Commenters also stated the rule forecloses judicial review.

Commenters wrote that the rule's provisions for immigration judge review provide insufficient protections against erroneous negative screening determinations and raise due process concerns. One commenter indicated immigration judges, who frequently do not cite any law in their fear review denials, do not have time to devote to in-depth analysis with an additional layer of complexity added to hearings. A commenter stated that AOs' credible fear determinations would be reversed more frequently if immigration judge review included basic due process protections, such as access to counsel. Another stated noncitizens might not know that immigration judge review of negative fear determination is available unless an AO tells them.

Response:

Negative screening determinations of all types are subject to review by an immigration judge.

See

8 CFR 208.30(g)(1), 208.31(g), 208.33(b)(2), 208.35(b)(2). Should an immigration judge make a negative credible fear determination, no appeal of that determination is available.

See

8 CFR 1003.42(f)(2), 8 CFR 1208.31(g)(1). Nothing in the proposed rule alters these procedures, although the rule would allow AOs to base a negative determination on the application of a mandatory bar.

The comments that the rule forecloses review of negative determinations are incorrect, as the regulations establish procedures for referring negative determinations for review by an immigration judge. Noncitizens are provided written notification of their right to request an immigration judge's review of the AO's credible fear determination. 8 CFR 235.3(b)(4)(i)(C). Where a noncitizen is issued a negative credible fear determination, they are served by asylum office staff with one of the following forms: Form I-869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge (where the negative credible fear determination is issued pursuant to 208.30); Form I-869B, Record of Negative Credible Fear and Reasonable Possibility Finding and Request for Review by Immigration Judge for Noncitizens Subject to the Condition on Asylum Eligibility Pursuant to 8 CFR 208.33(a); or Form I-869SB, Record of Negative Credible Fear and Reasonable Probability Finding and Request for Review by Immigration Judge for Noncitizens Subject to the Limitation on Asylum Eligibility Pursuant to 8 CFR 208.35(a). In all negative determinations, the form is read to the noncitizen aloud at service of the decision in a language they understand (via an interpreter if necessary) and includes an explanation of the noncitizen's right to request immigration judge review of the negative determination, pursuant to 8 CFR 208.30(g)(1), 208.33(b)(2)(iii), or 208.35(b)(2)(iii).

The noncitizen selects on the Form I-869, Form I-869B, or Form I-869SB, whether they request immigration judge review of the negative determination and signs the form, which also includes the signature of the interpreter, where applicable (or where the interpretation was via a USCIS telephonic contract interpreter, the interpreter ID number is recorded).

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

See

Memorandum for the Record, from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations Directorate, USCIS,

Re: Asylum Division Training, Staffing, Capacity, and Credible Fear Procedures

(Sept. 26, 2024).

See

Memorandum for the Record, from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations Directorate, USCIS,

Re: Asylum Division

Training, Staffing, Capacity, and Credible Fear Procedures

(Sept. 26, 2024).

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

See

USCIS, “Reasonable Fear Procedures Manual,” Section III,

https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf

DHS disagrees with the commenters stating that the rule's provisions for immigration judge review are inadequate to ensure that sufficient procedural safeguards are provided or protect against erroneous screening determinations. Immigration judges are familiar with applying bars to asylum and statutory withholding of removal, as well as the applicable standards of proof involved in both fear screenings and full merits adjudications of asylum, statutory withholding of removal, and protection under the CAT.

As discussed above, multiple provisions in title 8 of the Code of Federal Regulations provide notice of the right to access counsel.

See

8 CFR 1208.13(c); 1208.16(b); 1208.16(c);1208.16(d)(2); 1208.30(c)(2); 1208.30(g)(2); 1208.31(c); and 1208.31(g).

See, e.g.,

8 CFR 1240.10(a)(1)-(2), 1240.11(c)(1)(iii), 1240.17(f)(1), 1240.32(a), 1240.48(a).

Furthermore, review of negative credible fear determinations is limited under INA sec. 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to the review by an immigration judge previously described, so DHS has no authority to create additional mechanisms for a noncitizen to appeal a credible fear determination made during the expedited removal process pursuant to INA sec. 235(b), 8 U.S.C. 1225(b).

DHS acknowledges that, before this rule, mandatory bars were only applied during a full adjudication of the noncitizen's application for asylum or withholding of removal, and any such decision on a bar was subject to review by both the BIA and the relevant Federal court.

See

8 CFR 1003.1(b)(3), INA sec. 242, 8 U.S.C. 1252. Under this rule, however, noncitizens who receive negative credible fear determinations solely because of the applicability of a bar and who have those determinations affirmed by an immigration judge will be removed. However, as discussed elsewhere in this preamble, the Department considers the safeguards in place sufficient to ensure against erroneous removals, and the benefits of allowing DHS and EOIR resources that would have been expended on potentially years-long immigration court processes involving noncitizens pursuing relief for which they are ineligible to be conserved for potentially meritorious cases outweigh the loss to this small population of noncitizens of these additional avenues for appeal or review.

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

As mentioned above, DHS rejects the suggestion in these comments that determinations based on mandatory bars are categorically more complex as a factual or legal matter than other issues routinely decided in screening interviews and subject to these same review provisions.

Comment:

Commenters stated that noncitizens would be denied protections at the border and could be unjustly removed; lack of transparency would leave no way to assess whether the process would lead to erroneous removals; and an expedited removal process would rush individuals through credible fear interviews that unfairly require individuals to disclose personal information about fear or trauma to officials and without the presence of an attorney. In line with the above remarks, a commenter encouraged DHS to retain current due process protections to prevent the erroneous return of people to countries where their lives would be threatened.

Response:

The Department acknowledges the concern relating to the possibility for erroneous removals but assesses the possibility to be rare. AOs are trained in asylum law and are well-suited to apply mandatory bars in the screening context in their discretion and, where evidence related to a mandatory bar is limited or unavailable, or analysis would be too complex to be fully explored in the screening context, to exercise their discretion not to apply the bar in the screening determination. AOs will continue to issue positive fear determinations where a noncitizen demonstrates a credible or reasonable fear at the applicable screening standard, even where there may be indicia of a mandatory bar but the available evidence at the screening stage as to the mandatory bar or available exceptions or exemptions is limited. Retaining this discretion will safeguard against erroneous applications of the mandatory bars. In addition to substantive training on analyzing mandatory bars, AOs are trained to conduct non-adversarial interviews, to elicit testimony, and to work with interpreters.

The Department also rejects the assertion that noncitizens will be unfairly required to disclose trauma and will not have access to counsel. AOs are trained to work with noncitizens who are experiencing the effects of trauma and to communicate across cultural and linguistic barriers.

AOs routinely interview noncitizens during protection screening interviews involving sensitive matters that many may find challenging to discuss, including torture, sexual assault, familial violence, and the deaths of family members. Additionally, noncitizens in the credible and reasonable fear processes may be represented by an attorney at no cost to the government. 8 CFR 208.30(d)(4), 8 CFR 208.31(c). Finally, noncitizens in credible fear may consult with persons of their choosing. 8 CFR 208.30(d)(4).

See

By their nature, the application of the mandatory bars may result in the possible removal of noncitizens to countries where they fear harm. This is consistent with both domestic law and international standards identified in section II of this preamble. DHS also notes that nothing in the rule would affect protections available to noncitizens under regulations implementing U.S. obligations under Article 3 of the CAT.

Comment:

Commenters asserted that language access issues in general, and particularly for speakers of rare or indigenous languages, impede

noncitizens' ability to demonstrate a bar does not apply to them.

Response:

8 CFR 208.30(d)(5) requires AOs to provide for the assistance of an interpreter in credible fear interviews where the noncitizen is unable to effectively proceed in English and the AO is unable to proceed competently in a language the noncitizen speaks and understands. 8 CFR 208.31(c) imposes the same requirement for reasonable fear interviews. Furthermore, USCIS has developed a language access plan to ensure that limited English proficient individuals have meaningful access to the agency's services and information.

USCIS has also issued guidance to AOs on providing language access in credible fear interviews.

This guidance provides for situations where the AO is unable to communicate with the noncitizen because their preferred language is not serviced by an asylum interpreter contract and, if applicable, the noncitizen does not agree to proceed with the credible fear interview in another language for which the AO confirms understanding. In such a situation, the Asylum Office issues a Form I-862, Notice to Appear (NTA), and refers the noncitizen to removal proceedings without making a credible fear determination in such situations. DHS is confident these measures are sufficient to ensure limited English proficient noncitizens, including speakers of rare and indigenous languages, are able to effectively understand the screening process and participate in credible fear and reasonable interviews, including addressing the applicability of any bars. Furthermore, DHS notes that limitations in communicating in English or with an interpreter in a language other than the noncitizen's preferred language would weigh against an AO exercising discretion to consider the bars, since they could limit testimony and impede efficiency.

See

USCIS “Language Access Plan,”

https://www.dhs.gov/sites/default/files/publications/uscisc-updated-language-access-plan-2020.pdf

(last visited Aug. 5, 2024).

USCIS, Memorandum from Acting Asylum Division Chief Ashley Caudill-Mirillo to Asylum Division Staff: Language Access in Credible Fear Screenings (July 6, 2022),

https://www.uscis.gov/sites/default/files/document/memos/Language-Access-in-Credible-Fear-Screenings.pdf

c. Impacts on Specific Vulnerable Populations

Comment:

Some commenters expressed opposition to the proposed rule, stating that it would increase the odds that people would have to return to countries where their political beliefs, sexual orientation or gender identity are under threat. A commenter urged the Department to not make the process more difficult for women who are fleeing from the abuse of a partner. Another commenter said that the proposed rule could make it more difficult for those seeking to flee authoritarian governments and countries where they face marginalization and persecution. A commenter stated that their clients include indigent, black, brown, indigenous, and LGBTQI+ (lesbian, gay, bisexual, transgender, queer, and intersex) noncitizens who often have no other avenue to seek safety than to come to the United States. The commenter stated that the rule depends on the discretion of AOs to decide when to apply mandatory bars to asylum eligibility during screenings, which would disproportionately penalize some noncitizens based on their race, nationality, religion, LGBTQI+ identity, or disability status because those who have been criminalized for these statuses could be barred from asylum.

Response:

The Department disagrees with the commenters' claims regarding the Final Rule's impact on particularly vulnerable individuals. Under this rule, AOs will have the flexibility in screenings to apply mandatory bars that relate to an individual's participation in the persecution of others, or national security, criminal, or other public safety concerns. The Department does not believe that this rule would penalize any of the vulnerable populations commenters identified. AOs are trained to elicit testimony in a non-adversarial and sensitive manner and to work with vulnerable populations.

AOs are also trained to apply the mandatory bars and analyze available evidence, including the circumstances surrounding arrests and criminal records outside the United States, which may, in certain instances, demonstrate a pretextual or discriminatory intent by a foreign government.

Indeed, AOs regularly analyze mandatory bars, including criminal bars, in asylum adjudications and are experienced in evaluating context related to arrests, criminal charges, and foreign convictions, which, in some circumstances, may be evidence that an individual has suffered persecution, rather than evidence of a mandatory bar.

Accordingly, considering the training and experience AOs possess, they are well-suited to apply mandatory bars in the screening context in their discretion and, where evidence related to a mandatory bar is too limited or unavailable, or the analysis of the bar would be too complex to be fully explored in the screening context, to exercise their discretion not to apply the bar in the screening determination.

See

USCIS, “RAIO Directorate—Officer Training: Interviewing—Introduction to the Non-Adversarial Interview” (Apr. 24, 2024); USCIS, “RAIO Directorate—Officer Training: Interviewing—Eliciting Testimony” (Apr. 24, 2024).

See

USCIS, “RAIO Directorate—Officer Training: Mandatory Bars” (May 9, 2013); USCIS, “RAIO Directorate—Officer Training: Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims” (Apr. 24, 2024); USCIS, “RAIO Directorate—Officer Training: Definition of Persecution and Eligibility Based on Past Persecution” (Apr. 24, 2024).

See id.

AOs will continue to issue positive fear determinations where a noncitizen demonstrates a credible or reasonable fear at the applicable screening standard, even where there may be indicia of a mandatory bar but the available evidence at the screening stage as to the bar or available exceptions or exemptions is limited. By preserving AO discretion in the application of the mandatory bars, the rule will protect vulnerable noncitizens who may have complicated evidentiary and legal issues involving a mandatory bar.

d. Other/General Negative Impacts on Noncitizens and Their Support Systems

Comment:

Many commenters expressed concerns about the hardships noncitizens face in their home countries, on the journey to the United States, and throughout the immigration process. A commenter stated that the proposed rule does not serve long-term migrants who are waiting on a resolution for their cases, or new migrants who deserve to be treated with fairness. A commenter believes that the number of migrants attempting to enter the United States is the “result of global political and climate crises,” and that solutions should be targeted towards those issues. Further, the commenter stated that the proposed rule would increase the suffering of noncitizens, while not addressing the underlying problems that drive migration. Another commenter discussed the need to ensure that noncitizens with similar claims would not experience different outcomes based on the constraints of government resources. A nonprofit organization opposed the rule because it would impose additional burdens on their resources. Finally, several commenters expressed the importance of access to asylum for vulnerable noncitizens.

Response:

The Department acknowledges the commenters' concerns for noncitizens who may be fleeing harm in their home countries or otherwise face hardships. To that end, the U.S. government has implemented,

a number of measures designed to enhance and expand lawful pathways and processes for noncitizens seeking to enter the United States, including to seek asylum or other protection. Examples of lawful pathways include: the Uniting for Ukraine process, which allows Ukrainian nationals to receive humanitarian parole into the United States, enabling them to travel by air to the United States; the Safe Mobility initiative;

the new CHNV processes;

and country-specific family reunification parole processes.

DHS and its interagency partners have also increased H-2B nonimmigrant visa availability

and refugee processing for Western Hemisphere countries.

Noncitizens who are not eligible for these pathways can schedule an appointment to present themselves at a southwest land border port of entry through the CBP One app.

The Department agrees with the comment that we must address the underlying drivers of migration. For example, the

U.S. Strategy for Addressing the Root Causes of Migration in Central America,

directed by the President in Executive Order 14010, 86 FR 8267 (Feb. 5, 2021), focuses on a coordinated, place-based approach to improve the underlying causes that push Central Americans to migrate, and it takes into account, as appropriate, the views of bilateral, multilateral, and private sector partners, as well as civil society.

The strategy includes addressing economic, governance, and security challenges through five pillars: (1) addressing economic insecurity and inequality; (2) combating corruption and strengthening democratic governance; (3) promoting human rights and labor rights; (4) countering and preventing violence; and (5) combating sexual and gender-based violence.

In March 2024, the White House announced that the Administration is on track to meet its commitment in the root causes strategy to provide $4 billion to the region over four years.

U.S. Dep't of State, Safe Mobility Initiative,

https://www.state.gov/refugeeadmissions/safe-mobility-initiative

(last visited Aug. 23, 2024); The White House, Fact Sheet: Biden-Harris Administration on World Refugee Day Celebrates a Rebuilt U.S. Refugee Admissions Program, June 20, 2024,

https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/

(last visited Aug. 29, 2024).

See

U.S. Citizenship and Immigration Services, Processes for Cubans, Haitians, Nicaraguans, and Venezuelans,

https://www.uscis.gov/CHNV

(last visited Sept. 25, 2024).

See

U.S. Citizenship and Immigration Services, Family Reunification Parole Processes,

https://www.uscis.gov/FRP

(last visited Aug. 23, 2024).

88 FR 80394 (Nov. 17, 2023).

See

CBP, “CBP One

Mobile Application,”

https://www.cbp.gov/about/mobile-apps-directory/cbpone

(last visited Aug. 14, 2024).

Nat'l Sec. Council,

U.S. Strategy for Addressing the Root Causes of Migration in Central America

at 4 (July 2021),

https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf

The White House,

Fact Sheet: Update on the U.S. Strategy for Addressing the Root Causes of Migration in Central America

(Mar. 25, 2024),

https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/25/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-3/

Id.

The Department disagrees with the comment that the rule will increase suffering of noncitizens and negatively impact both new and long-term noncitizens waiting on case resolutions. Instead, the Department believes the rule will increase efficiencies for noncitizens and decrease the time noncitizens must wait for a final decision on their protection claim, including those who may be in detention. Noncitizens who are subject to a bar but would nevertheless receive a positive fear determination absent this rule may, under this rule, be more swiftly removed instead of being detained throughout their removal proceedings, and therefore spend less time in detention. The Department is committed to conducting screening interviews with fairness, and AOs are trained to review each case on its own merits, even when there are similarities between claims.

DHS acknowledges the comment regarding burden on nonprofit resources and has included a description of impacts of the Final Rule in Section V.B. of this preamble. This rule does not directly regulate any organizations, and consistent with longstanding case law, a regulatory flexibility analysis is not required when a rule has only indirect effects on small entities, rather than directly regulating those entities.

See, e.g., Mid-Tex Elec. Co-op., Inc.

FERC,

773 F.2d 327, 342-43 (D.C. Cir. 1985).

e. Negative or Minimal Impacts on Immigration System and Government Operations and Resources

Comment:

Many commenters expressed concerns that considering mandatory bars during the fear screening stage would introduce complexities, inconsistencies, and inefficiencies in the fear screening process, and the asylum system needs fair and comprehensive reform. One commenter stated that the proposed rule would make the asylum process more complicated for noncitizens and AOs, while also putting noncitizens in danger. One commenter expressed concerns that applying bars during fear interviews could slow down the fear screening process and become arduous for AOs to consider. One commenter expressed concerns that AOs may not be able to make these decisions with clarity, empathy, or fairness, while also potentially causing officers psychological distress.

In line with the above remarks, a commenter stated that the proposed rule would not increase efficiency because a small number of people would be impacted, and that given this small numeric impact, the Department should weigh the adverse fairness implications that the proposed rule would impose on the few cases where the mandatory bars are applied. In addition, they wrote that AOs face pressure to make findings with limited resources, which would leave doubt that the rule would increase efficiency. The same commenter further stated that the consideration of the bars, a step not systematically taken in the credible fear process, requires extensive factual development and legal analysis that would lengthen credible fear and reasonable fear interviews, thereby undermining the purported efficiency goals of the proposed rule. Citing an interview with a representative for USCIS AOs, the commenter raised concerns with the proposed rule's impact on the agency's limited time and resources for conducting fear interviews. The commenter warned that if the proposed rule were finalized, the application of complex mandatory bars at the screening stage would drain more time and resources from already strained AOs.

Response:

The Department disagrees with the commenters' concerns that consideration of the mandatory bars would be inefficient due to time and resource constraints and that AOs would have difficulty making decisions with clarity and fairness. As noted by commenters, the Department expects only a small percentage of screening cases to be impacted by the mandatory bars; therefore, the length of interviews would not increase across all credible and reasonable fear interviews. The Department also believes that while a small number of people would be impacted by this rule, those individuals would be enforcement priorities because

of national security and public safety concerns.

Safeguarding national security is one of the Department's highest priorities, and this rule will allow the Department to efficiently identify and remove noncitizens who are found subject to one of the outlined mandatory bars without subjecting them to lengthy proceedings. AOs interview noncitizens with complex cases on a regular basis and are trained in interviewing noncitizens in credible fear and reasonable fear screenings, as well as in interviewing affirmative asylum applicants.

AOs are capable of conducting thorough screening interviews, applying the mandatory bars when applicable, and maintaining fairness throughout the process, as is required by their roles.

Memorandum from Alejandro N. Mayorkas, Sec'y of Homeland Security,

Guidelines for the Enforcement of Civil Immigration Law

3-4 (Sept. 30, 2021).

See

Memorandum for the Record, from Ted Kim, Assoc. Dir., Refugee, Asylum, and Int'l Operations Directorate, USCIS,

Re: Asylum Division Training, Staffing, Capacity, and Credible Fear Procedures

(Sept. 26, 2024).

Comment:

Commenters suggested that DHS look elsewhere to improve the immigration system, such as employing and training more immigration officers, or focusing on adjudicating pending cases in the backlog instead of imposing additional burdens on officers who are performing fear screenings. One commenter stated that backlogs at USCIS and the Executive Office for Immigration Review (EOIR) would make the successful implementation of this rule difficult, and it is unclear where the resources would come from to execute the proposed rule fairly. A few other commenters stated that resources should be spent creating accessible pathways to citizenship and policies that reduce poverty and violence in the countries from which noncitizens are fleeing.

Response:

The Department continues to expand its workforce to meet different priorities and believes that resources can be, and are being, allocated to both reducing the backlog and increasing efficiencies in the credible and reasonable fear processes.

While the Department appreciates the resource allocation suggestions made by some commenters and would direct those commenters to E.O. 14010,

which aims to address root causes of migration and create a strategy for managing migration, and E.O. 14012,

which aims to identify and eliminate barriers to immigration access and improve the naturalization process, the Department also notes that these suggestions are outside the scope of this rule. Finally, the comment suggesting increased immigration judge hiring and training is outside the scope of this rule.

See, e.g.,

DHS, “Statement from Secretary Mayorkas on the Recognition of DHS Advancement on Partnership for Public Service List of `Best Places to Work') (May 20, 2024) (“Secretary Mayorkas helped to secure the first increase in Border Patrol staffing in over a decade with 300 additional Agents added in Fiscal Year 2023, and another 1,400 added in Fiscal Year 2024.”),

https://www.dhs.gov/news/2024/05/20/statement-secretary-mayorkas-recognition-dhs-advancement-partnership-public-service

(last visited Aug. 15, 2024); USCIS, “Talking Points, Asylum National Engagement; March 6, 2024,”

https://www.uscis.gov/sites/default/files/document/outreach-engagements/Asylum-National-Engagement-talking-points-3-6-24.pdf

(last visited Aug. 15, 2024).

E.O. 14010, 86 FR 8267 (Feb. 5, 2021).

E.O. 14012, 86 FR 8277 (Feb. 5, 2021).

Comment:

Several commenters expressed concern that the proposed rule could exacerbate the existing inequities in asylum processing, which they stated served neither noncitizens nor the U.S. government's need to manage the border. One commenter stated that the mandatory bars are very complex and that in a screening interview where the noncitizen is unlikely to have legal representation, applying those bars will lead to inconsistent and erroneous outcomes. Commenters indicated the rule leaves excessive discretion to AOs to determine whether to consider bars to asylum and withholding of removal in credible fear and reasonable fear screenings, which would lead to inconsistent results and undermine the efficiency of screenings. Commenters predicted the discretion the rule accords to AOs to consider bars in fear screenings will lead to discrimination and inequity, including profiling on the basis of race, religion, or nationality.

Response:

The Department disagrees with the comment that the rule will exacerbate inequities in the asylum system and does not serve border management needs. The commenters did not explain what they were referring to as existing inequities in asylum processing. The Department has outlined its commitment to increase access and equity in the immigration process in the DHS Equity Action Plan.

The Department also disagrees that the rule does not serve noncitizens or the U.S. government's border management needs. The rule will allow DHS to quickly screen out certain non-meritorious claims and remove those noncitizens who pose a national security or public safety threat more expeditiously. This serves both government and noncitizen needs, as it safeguards national security while allowing the Department to use resources more efficiently. Applying the mandatory bars earlier in the process means that the Department can more effectively use its resources to adjudicate other cases in a more expedient manner.

See

DHS, “DHS Equity Action Plan,”

https://www.dhs.gov/publication/equity

(last visited Aug. 15, 2024).

The Department disagrees that application of the mandatory bars during the screening process will lead to erroneous and inconsistent decisions. AOs are trained to analyze and apply the mandatory bars in affirmative asylum cases; therefore, they are well-suited to exercise discretion to apply mandatory bars in the screening context. If evidence related to a mandatory bar is too complex to be fully explored in the screening context, the rule will allow AOs to exercise their discretion not to apply the bar in the screening determination. In those cases, AOs will continue to issue positive fear determinations where a noncitizen demonstrates a credible or reasonable fear at the applicable screening standard, even where there may be indicia of a mandatory bar but the available evidence at the screening stage as to the bar or any available exception or exemption is limited.

DHS disagrees that providing discretion to AOs to consider bars in fear screenings will lead to inconsistent or inequitable results. AOs already receive standardized training on how to apply the bars to asylum in full adjudications. The five bars to statutory withholding of removal that could be considered under this rule generally correspond to five of the six mandatory bars to asylum.

See

INA secs. 208(b)(2)(A)(i)-(v), 241(b)(3)(B)(i)-(iv) and (b)(3)(B), 8 U.S.C. 1158(b)(2)(A)(i)-(v), 1231(b)(2)(B)(i)-(iv) and (b)(3)(B). Therefore, AOs understand the types of evidence that would indicate the potential applicability of these bars to both forms of relief. AOs are also trained, in cases where there is evidence a bar may apply, to note the possible applicability of the bar in the credible fear or reasonable fear determination.

Such training helps to ensure consistent application of AO discretion in determining whether to consider bars in fear screenings.

See USCIS, RAIO Directorate—Officer Training: Credible Fear of Persecution and Torture Determinations

(May 9, 2024); USCIS,

RAIO Directorate—Officer Training: Reasonable Fear of Persecution and Torture Determinations

(Feb. 13, 2017);

see also

Credible Fear Procedures Manual (CFPM), Section III.E.7; Reasonable Fear Procedures Manual (RFPM), Section III.F.

DHS also disagrees that providing AOs discretion to consider bars will

undermine the efficiency of screenings. It is precisely this concern for efficiency that, in part, motivates the Department's decision not to require AOs to consider bars in every screening conducted, but rather permit them to do so in those cases where there is easily verifiable evidence available to the AO that, in their discretion, warrants an inquiry into a bar, and the AO can consider that bar efficiently.

DHS further disagrees that providing AOs this discretion will lead to discrimination and profiling on the basis of race, religion, or nationality. Such discrimination is not only unlawful and against USCIS policy,

but contrary to the fundamental purpose of fear screenings, which exist to ensure the United States does not return eligible noncitizens to torture or to persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Furthermore, AOs are trained to be neutral decisionmakers,

to conduct interviews in a non-adversarial manner, to not let personal biases interfere with their work, and to treat each individual who appears before them with courtesy, professionalism, and respect.

See

42 U.S.C. 1983;

see also

USCIS, “USCIS Policy Manual,” Vol. 1, Part A, Ch.9, Section (D)(1),

https://www.uscis.gov/policy-manual

See USCIS,

“RAIO Directorate—Training Module: Decision Making” (Apr. 4, 2024).

See

USCIS, RAIO Directorate—Officer Training: Interviewing—Introduction to the Non-Adversarial Interview (Apr. 24, 2024)

and

USCIS, RAIO Directorate—Training Module: Core Values and Guiding Principles for RAIO Employees (Apr. 24, 2024).

Comment:

One commenter opposed the rule for doing too little to address the high level of border crossings, and address the asylum and immigration court pending caseload, describing it as too narrow in scope and containing numerous loopholes that would do little to stem what they described as the tide of asylum fraud that plagues the system.

Response:

The rule is not intended to address high levels of border crossings, or primarily, to address backlogs in the immigration system. Neither is it intended to address fraud in the asylum system. While the Department does expect the rule to conserve some government resources that may be used on other cases, it does not expect that the rule will substantially decrease the pending caseload at the immigration courts or at USCIS.

f. Negative Impacts on the U.S. Economy and Workforce, U.S. Citizens, Public Health and Safety

Comment:

Several commenters expressed opposition to the proposed rule, stating that it would raise additional barriers to gaining asylum during a time when noncitizens could help strengthen the United States and increase government tax revenue. A commenter noted that immigrants help the economy. Another commenter added that there could be concerns with accommodating large numbers of noncitizens, but the pros outweigh the cons. Several commenters stated that the U.S. population and workforce is projected to decline, so the United States should be accepting noncitizens to help fill gaps in the workforce. Some commenters stated that noncitizens are often eager to rebuild their lives and contribute to their communities. Other commenters noted that noncitizens are resourceful, which is why we should welcome them. A commenter stated that because of the many hazards that noncitizens have faced, they will become strong model citizens.

Response:

The Department agrees that immigrants contribute significantly to the U.S. economy and workforce. This rule does not curtail access to the immigration system for individuals who are eligible for protection or relief from removal. By allowing AOs to apply certain mandatory bars in screenings, the Department is working to ensure that individuals who will not ultimately be eligible for protection or relief from removal are not unnecessarily consuming U.S. Government resources during their pursuit of non-meritorious protection claims.

g. Other Opposition to the Rule

Comment:

Several commenters remarked that this is the incorrect approach to dealing with the asylum system. Further, a commenter said that the current immigration policy is costly and traumatizing, especially to those who are vulnerable. Another commenter remarked that those seeking asylum should not be criminalized, since noncitizens seeking asylum are fleeing oppressive environments. A commenter urged the Department to withdraw the proposed rule in its entirety to instead adopt humane solutions to the humanitarian and operational challenges at the border. They offered several alternatives, such as increasing capacity at ports of entry; engaging civil society entities to provide respite services; improving communication and cooperation between civil society, State and local governments, and Federal agencies; ending detention and monitoring of asylum seekers; and providing legal representation and social services to asylum seekers. A few commenters expressed disappointment towards the Biden administration because of the restrictiveness of the proposed rule.

Response:

The Department disagrees with the commenters' claims and declines to adopt their suggestions, which are beyond the scope of this rulemaking in any event. With this rule, the Department is considering the application of mandatory bars at an earlier stage in the process. Concerning legal representation, the Department notes that during the credible and reasonable fear processes, noncitizens may be represented by an attorney at no cost to the government. Additionally, noncitizens in credible fear may consult with persons of their choosing. 8 CFR 208.30(d)(4). Noncitizens who are referred to USCIS for a credible fear or reasonable fear interview are provided with an information sheet related to the applicable screening interview process (

e.g.,

M-444, Information About Credible Fear Interview; M-488, Information About Reasonable Fear Interview; Information About Credible Fear Interview Sheet (for credible fear cases referred to USCIS under the Securing the Border rule)), in addition to a list of free or low-cost legal service providers. Certain suggestions, including those to increase processing capacity at ports of entry, strengthening communication and cooperation between civil society, State and local governments, and Federal agencies, ending the detention and monitoring of asylum seekers, and providing legal and social services to newly arrived asylum seekers, are outside the scope of this rule.

Comment:

One commenter opposed the proposed rule stating that a future “more overtly hostile anti-immigrant administration” could abuse the discretion that the rule allows AOs, such as if a future administration sought to expand the use of expedited removal across the country.

Response:

The Department emphasizes that the NPRM and this rule allow AOs to exercise discretion to consider a mandatory bar during a fear screening interview. The discretion the rule provides is not unbounded. AOs should only expend resources considering mandatory bars where there is easily verifiable evidence that a bar may apply and where they determine that they can address the issue efficiently in the context of a screening interview.

Under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), DHS may remove certain noncitizens without a hearing before an immigration judge through expedited removal proceedings. The INA also grants the Secretary authority to apply expedited removal procedures

(by designation) to “any or all” noncitizens referred to in the statute as “certain other aliens.” INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I). A noncitizen is within the class of “certain other aliens” if the noncitizen “has not been admitted or paroled into the United States, and . . . has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” INA 235(b)(1)(A)(iii)(II), 8 U.S.C. 1225(b)(1)(A)(iii)(II). Such designation “shall be in the sole and unreviewable discretion” of the Secretary and “may be modified at any time.” INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I); 8 CFR 235.3(b)(1)(ii).

In case of a hypothetical future policy choice to expand the use of expedited removal to additional contexts, DHS emphasizes that noncitizens found under this rule to lack a credible fear or reasonable fear of persecution due to the application of a mandatory bar would ultimately be ineligible for the underlying relief in a merits hearing if they were instead placed into immigration court proceedings directly through service of a Notice to Appear.

Moreover, the concerns about future administrations abusing their discretion by, for example, expanding expedited removal's use across the country, are misplaced. The application of expedited removal is not geographically limited by statute.

See

INA 235(b)(1), 8 U.S.C. 1225(b)(1). Currently, the regulations implementing expedited removal allow for its use if a noncitizen has failed to establish they have been continuously present in the United States for at least two years prior to their date of inadmissibility, but there is no limit as to its nationwide use. 8 CFR 235.3(b)(ii).

Comment:

One commenter faulted the proposed rule for allegedly seeking to deter asylum seekers from entering the United States.

Response:

DHS rejects this characterization. The rule is not designed to deter noncitizens from seeking asylum. The rule simply is intended to provide flexibility to AOs to apply the covered mandatory bars where there is easily verifiable evidence so that, when possible, noncitizens who would otherwise ultimately be found ineligible for relief or protection after a lengthy immigration process may instead have their cases handled more efficiently. In addition, this flexibility allows DHS to more expeditiously remove some noncitizens who pose a threat to the safety or security of the United States. As noted above, DHS has established numerous new pathways to facilitate the lawful entry of noncitizens into the United States, which enables noncitizens to more easily seek asylum or other immigration benefits in appropriate cases.

Comment:

One commenter criticized the rule as a reinstatement of the “Asylum Ban” and characterized it as going against President Biden's campaign promises.

Response:

This rule is not equivalent to an “asylum” ban or any other sort of categorical ban. As discussed elsewhere in this preamble, this rule is intended to simply provide AOs with the discretionary authority to consider certain statutory bars to asylum and withholding of removal during fear screenings when doing so could increase efficiency. Individuals subject to these bars are already ineligible for asylum or withholding of removal as relevant, but, without the rule, the bars are only fully applied at a later stage in a noncitizen's immigration proceedings.

C. Legal Authority and Background

1. DHS Legal Authority

Comment:

Many commenters asserted that the proposed rule is in contravention of international and domestic law regarding refugee protection and non-refoulement. In support of this assertion, several commenters cited the 2003 Office of the U.N. High Commissioner for Refugees (UNHCR) Guidelines, which direct that exclusion clauses only be considered during regular refugee determinations proceedings and not during expedited proceedings. A commenter stated that the proposed provisions in the rule will create barriers to asylum and withholding of removal for asylum seekers and violates the 1967 Protocol Relating to the Status of Refugees.

Response:

DHS disagrees with the assertion that the proposed rule is in contravention of applicable law. The INA provides mandatory bars to applying for asylum at section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2); to asylum eligibility at section 208(b)(2)(A) of the INA, 8 U.S.C. 1158(b)(2)(A); and to eligibility for withholding of removal at section 241(b)(3)(B) of the INA, 8 U.S.C. 1231(b)(3)(B) (referred to collectively as “mandatory bars”). Further, as explained above, Congress has conferred upon the Secretary express rulemaking power to create certain procedures for screening for and adjudicating asylum claims. INA sec. 103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); INA sec. 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B); INA sec. 235(b)(1), 8 U.S.C. 1225(b)(1).

There are no bars to deferral of removal under the regulations implementing U.S. obligations under Article 3 of the CAT. Prior to being granted asylum or statutory withholding of removal in the United States, noncitizens are required to show that the mandatory bars do not apply to them.

The relevant statutory provisions are silent as to the consideration of the mandatory bars during screening interviews. All relevant domestic legal provisions on this topic have taken the form of regulatory action. The former Immigration and Naturalization Service issued a rule in 2000 precluding, in response to comments, consideration of the asylum bars at the credible fear stage.

Additional regulatory action on this subject was taken in 2020 and 2022.

See

85 FR 80274, 80278 (Dec. 11, 2020) (“Global Asylum Rule”); 87 FR at 18221-22. In none of these actions that precluded consideration of bars has the government concluded that considering mandatory bars at the screening stage would violate statutory provisions or other legal requirements. Instead, the basis of these rules, when it has been articulated, has focused primarily on efficiency of eliciting testimony related to and analyzing the mandatory bars at the screening stage.

See

87 FR 18078, 18093 (Mar. 29, 2022). This rule is based on a judgment by DHS that, under certain limited circumstances, the consideration of the mandatory bars at the screening stage represents an appropriate expenditure of resources.

See

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

DHS notes that while international guidelines represent helpful interpretative guidance, they are not binding authority on DHS. As such, the 2003 UNHCR guidance

does not carry the force of law. The guidance raised by the commenters states that

UNHCR, “Guidelines on International Protection No. 5, Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating of the Status of Refugees” (Sept. 4, 2003),

https://www.unhcr.org/us/media/guidelines-international-protection-no-5-application-exclusion-clauses-article-1f-1951

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

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

Id.

We note that the guidance speaks generally (“in principle”) and is not a categorical prohibition against considering exclusion provisions in a screening interview. DHS screening procedures do contain “rigorous procedural safeguards,” including 100% supervisory review of all decisions

and the right to review of any negative decision by an immigration judge.

Additionally, noncitizens in screening interviews have the right to consult with an individual of their choosing, including counsel, at no cost to the government, the right to have a consultant or counsel attend the interview, the right to provide evidence in their native language or a language that they are comfortable with, and the right to a non-adversarial interview with an AO. 8 CFR 208.30(d); 208.31(c).

USCIS “Credible Fear Procedures Manual,” Section III.I,

https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf

; USCIS, “Reasonable Fear Procedures Manual,” Section III.F.3,

https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf.

8 CFR 208.30(g) and 208.31(g).

Furthermore, the rule instructs that the AO should only consider any possible mandatory bar when the noncitizen does not establish a fear of torture and when there is easily verifiable evidence indicating that the noncitizen could be subject to a mandatory bar and, where the noncitizen is unable to establish at the relevant standard that the bar would not apply. As the standards of proof for screening interviews are lower than those applicable at the merits stage, the AO would only enter a negative fear determination if the noncitizen were unable to demonstrate at the applicable screening standard that a mandatory bar does not apply. Furthermore, if there are significant factual or legal issues that would necessitate further development at a later stage, AOs may exercise discretion to not apply the mandatory bar at the screening stage.

DHS disagrees that the rule will create barriers to asylum and withholding of removal for noncitizens with potentially meritorious claims. In the current fear screening process, AOs already identify possible mandatory bars. The rule simply permits an AO to apply the bars at the screening stage when there is evidence that a bar may apply, the AO determines that the bar can be addressed efficiently at the interview, and the noncitizen is unable to demonstrate at the applicable standard of proof that the bar does not apply or that the noncitizen qualifies for an exception or exemption to the bar. Further, any noncitizen who is subject to one of the mandatory bars that that this rule permits AOs to consider at the screening stage would already be ineligible for asylum or withholding of removal, as relevant.

Comment:

Several commenters stated that DHS lacks the statutory authority to enact the proposed rule as the expedited removal statute does not mention mandatory bars to asylum and instructs the agency to find a credible fear whenever an asylum seeker demonstrates a “significant possibility” that they “could” be eligible for asylum.

Response:

DHS disagrees with the assertion that it lacks the authority to enact the proposed rule. The legal authorities for this rule are described in section II of this preamble.

As mentioned earlier, the consideration of mandatory bars in screening interviews has been the subject of several prior rulemaking actions. Under INA sec. 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), the term “credible fear of persecution” means that there is a “significant possibility, taking into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen]'s claim and such other facts as are known to the [asylum] officer, that the [noncitizen] could establish eligibility for asylum under” INA sec. 208, 8 U.S.C. 1158. Section 208(b)(2)(A)(i)-(vi) of the INA contains the mandatory bars to asylum and states that the eligibility conditions for granting asylum at section 208(b)(1) of the INA, 8 U.S.C. 1158(b)(1), “shall not apply” to a noncitizen if one of the mandatory bars is determined to apply. As such, if the noncitizen is subject to one of the mandatory bars, they are not eligible for asylum. It follows that when considering whether a noncitizen has a significant possibility of establishing eligibility for asylum, an AO may consider factors that would render the noncitizen ineligible for asylum.

Comment:

Many commenters stated that consideration of the mandatory bars at the screening stage is inconsistent with congressional intent that the “significant possibility” standard be a low threshold to avoid the risk that people would erroneously be screened out and remarked that making decisions on mandatory bars is too complex to be done fairly under the circumstances during screening interviews.

Response:

Nothing in this rule modifies the standard of proof for any of the screening interviews that would be affected by the rule. DHS believes that the rule is consistent with Congress' intent for expedited removal proceedings. In the Asylum Processing NPRM, DHS and DOJ explained that Congress created a “low screening standard” for expedited removal proceedings and stated that it may be inconsistent with Congress' intent for the Departments to “creat[e] a complicated screening process that requires full evidence gathering and determinations to be made on possible bars to eligibility.” 86 FR 46906, 46914 (Aug. 20, 2021).

This rule, however, does not create any such process because AOs have the discretion, but are not required, to consider a mandatory bar in those cases where there is easily verifiable evidence that a bar may apply. If the AO determines that they can consider that bar efficiently at the screening stage, the AO could then, in their discretion, make a further inquiry into the mandatory bar. DHS does not believe Congress' intent that the expedited removal process be swift requires reading the statute to forbid the application of mandatory bars during fear screenings in all cases, particularly where, as here, DHS will apply those bars in a manner that would not increase the length of the expedited removal process except in those cases in which there is evidence indicating that a mandatory bar may apply. Accordingly, this rule is consistent with Congress's intent for expedited removal proceedings and DHS and DOJ's prior statements regarding that intent.

see also

86 FR at 46914-15. DHS and DOJ reasoned that applying the mandatory bars during all credible fear screening interviews would make those credible fear screenings less efficient,

which could jeopardize DHS's ability to use expedited removal,

undermine Congress' intent that the expedited removal process be swift,

and undermine procedural fairness.

The Departments did not, however, conclude that applying the mandatory bars would lead to these potentially negative repercussions in all, or even most, cases.

See

87 FR at 18093 (stating that the factual and legal inquiries required to consider the mandatory bars were “

in general and depending on the facts,

most appropriately made in the context of a full merits interview or hearing”) (emphasis added). Although the Departments' policy choices in this area have shifted over time, all these choices have remained consistent with the Department's longstanding statutory authority to manage asylum and related fear screenings, as discussed in Section II.

See

87 FR 18078, 18093, 18134 (Mar. 29, 2022) (“Asylum Processing IFR”); 88 FR 11704, 11744 (Feb. 23, 2023) (“Lawful Pathways NPRM”).

See

87 FR 18078, 18093 (Mar. 29, 2022) (“Asylum Processing IFR”).

See

86 FR 46906, 46914 (Aug. 20, 2021) (“Asylum Processing NPRM”); 87 FR 18078, 18094, 18134-35 (“Asylum Processing IFR”).

87 FR 18078, 18093-94, 18097 (“Asylum Processing IFR”).

DHS acknowledges that this rule implements a policy choice that is different from its position in 2022 but believes that this rule is not inconsistent with that earlier position. The 2022 rule rejected the consideration of the mandatory bars in screening interviews due primarily to concerns of inefficiency. The permissive nature of the current rule obviates those prior concerns about inefficient use of resources. The Department believes, just as it did in 2022, that the consideration of mandatory bars in instances where evidence related to a mandatory bar is too limited or is unavailable, or where the analysis of the bar would be too complex to be fully explored in the screening context, would constitute an inefficient use of resources. However, in cases where the evidence is clear, consideration of mandatory bars in a screening interview will help preserve the government's resources by allowing decisions to be made at the earliest possible stage.

DHS disagrees that the rule significantly changes asylum processing or expedited removal. As explained in the NPRM, under this rule, the current credible fear process will remain the same. The only aspect of the determination that will change is that the AO will have the discretion to consider the application of mandatory bars to asylum (other than firm resettlement) and statutory withholding of removal when screening the noncitizen for a credible fear of persecution or to consider the potential

application of the mandatory bars to statutory withholding of removal. Also, as also noted in the NPRM, the Department has experience applying both the Third-Country-Transit Bar and the CLP presumption of ineligibility for asylum.

See

89 FR at 41354. Further, since the Securing the Border IFR's publication, the Department has experience applying the Securing the Border rule's limitation on eligibility for asylum during the credible fear stage.

See

8 CFR 208.35, 1208.35. Although these limitations on asylum eligibility differ from the mandatory bars that AOs will have discretion to consider under this rule, AOs' demonstrated ability to apply them of asylum ineligibility in credible fear screenings supports the Department's assessment that certain statutory mandatory bars that may be easily verifiable can be effectively applied in screening interviews. Additionally, DHS remains confident that the population to which this rule will apply is likely to be relatively small, as informed by the number of cases with bars flagged by USCIS during screenings conducted during FY 2020-FY 2024. Please refer to Section V.A.2 and Table 4 below. Furthermore, the Department believes that the permissive nature of the rule obviates the due process concerns that were articulated in the 2022 Asylum Processing IFR. Under the current rule, AOs will only consider the mandatory bars where there is easily verifiable evidence that a mandatory bar applies, and AOs will retain the discretion to decline to consider a mandatory bar if they determine that the evidence is not easily verifiable, that they cannot efficiently gather sufficient information to make a determination on a mandatory bar, or if they believe that the evidence is such that the issue would be more fairly considered at a later stage.

This rule will not require the expenditure of resources in most screening interviews. Instead, it will rather serve as an operational flexibility when the AO determines that there is easily verifiable information that a mandatory bar applies and that they can efficiently handle the issue in the context of a screening interview. Thus, DHS does not believe that the current rule is inconsistent with the central concerns that drove USCIS' historical practice and does not represent a reversal of prior judgment. Instead, the rule will allow for consideration of mandatory bars in limited instances where applying the bar at the earliest possible stage would enhance public safety or national security and overall operational efficiency.

Comment:

One commenter stated that the proposed rule would permit “AOs to violate the non-refoulement mandate so long as an `indicia' of the five bars is present.”

Response:

DHS believes this comment misstates the provisions of the proposed rule. Prior to conducting a more fulsome consideration of a mandatory bar, the AO would determine whether there is easily verifiable information in the record that the mandatory bar applies to the noncitizen. However, under the rule, before the issuance of a negative determination, the AO would need to elicit all relevant testimony to provide the noncitizen an opportunity to demonstrate the relevant likelihood that the bar does not apply, or that an exception or exemption to the bar applies, and determine that the noncitizen failed to so demonstrate at the appropriate standard of proof.

In the credible fear context, for example, the evidence would need to be sufficient to show that there is not a significant possibility that the bar would not apply and that there is not a significant possibility that an exemption or an exception applies, including, for example, that the noncitizen can establish a reasonable possibility of torture. The application of this standard of proof is substantially different from AOs issuing negative screening determinations based on “an indicia [sic]” that one of the bars might apply.

See

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

Further, the application of the statutory bars to a noncitizen's claim does not violate the United States' non-refoulement obligations as discussed earlier in this section IV.C.1.

Comment:

One commenter opposed the proposed rule on the basis of their belief that current USCIS policy for overcoming mandatory bars requires that the noncitizen show by a preponderance of the evidence that the ground does not apply, if the evidence indicated that a ground for mandatory denial or referral exists. The commenter's stated understanding is that the rule would contradict congressional intent and Federal court ruling that apply a significant possibility standard to credible fear screenings.

Response:

Nothing in this proposed rule modifies the standard of proof that applies to any of USCIS' screenings. In the credible fear context, the significant possibility standard of proof would continue to apply to all questions related to asylum, including the possible application of the mandatory bars. These include, where applicable, whether there is a significant possibility a noncitizen could demonstrate they are not subject to or are excepted from the CLP rule's presumption of ineligibility for asylum (or that they could rebut the presumption), or whether there is a significant possibility they could demonstrate they are not subject to or are excepted from the Securing the Border rule's limitation on asylum eligibility. DHS acknowledges that noncitizens subject to the CLP rule's presumption of ineligibility for asylum or to the Securing the Border rule's limitation on eligibility for asylum would be screened for statutory withholding of removal, including mandatory bars (if considered), and protection under the CAT at the reasonable possibility and reasonable probability standards, respectively.

2. DHS's Justification, Background, and Statements on Need for the Rule

Comment:

One commenter objected to the proposed rule for not adequately explaining how AOs would reliably be able to apply the mandatory bars during screening interviews without wasting resources or making unwarranted negative findings.

Response:

AOs regularly receive training on screening and adjudication, including the application of mandatory bars. AOs will consider the mandatory bars only in cases where the evidence is easily verifiable that a bar may apply, and where they believe they can efficiently address the issue during the screening interview. Determinations by AOs are subject to review within USCIS, including review by a supervisory asylum officer.

See, e.g.,

8 CFR 208.30(e)(8). Noncitizens also have the right to request immigration judge review of any negative screening determination.

Comment:

Several commenters argued that DHS's reliance on its success in implementing the CLP rule to help justify this proposed rule is misplaced because the application of the CLP rule has resulted in unlawful refoulement of noncitizens.

Response:

DHS's experience with the CLP rule is relevant to this rule as it demonstrates that AOs are able to fairly and efficiently apply a rebuttable presumption of asylum ineligibility as part of a screening interview. The CLP rule and complementary measures have been in effect since May 11, 2023, and DHS and DOJ have been able to implement it without interruption. This experience has helped DHS significantly increase its capacity to screen noncitizens encountered at the border

under expedited removal and move them through the process more quickly than before the rule and complementary measures.

Now that it is clear a rebuttable presumption of asylum ineligibility can be applied effectively during the credible fear process, the Department wishes to provide the AOs with discretion to apply certain mandatory statutory bars that may be easily verifiable in screening interviews.

For example, as discussed in the Securing the Border IFR, CBP placed, on average, more than 970 individuals encountered at and between POEs each day into expedited removal between May 12, 2023, and March 31, 2024, and USCIS conducted a record number of credible fear interviews (more than 152,000) resulting from such cases. 89 FR at 48724. This is more interviews from SWB encounters at and between POEs during the same time span than in any full fiscal year prior to 2023, and more than twice as many as the annual average from FY 2010 to FY 2019.

Id.

The Department disputes the assertion that noncitizens have been unlawfully removed from the United States due to the application of the CLP rule. Under the CLP rule, noncitizens have several protections against removal, including demonstrating exceptionally compelling circumstances at the time of entry to rebut the presumption of ineligibility for asylum, as well as screening for statutory withholding of removal and protection under the regulations implementing U.S. obligations under Article 3 of the CAT.

In addition, as noted above, the United States has implemented its non-refoulement obligations through statutory withholding of removal under INA sec. 241, 8 U.S.C. 1231, not the discretionary asylum provisions in section 208 of the INA, 8 U.S.C. 1158. Accordingly, it is not unlawful, or a violation of the United States' non-refoulement obligations, to remove a noncitizen found ineligible for asylum because they lack a credible fear under CLP and further found not to have demonstrated a reasonable possibility of persecution or torture for the purposes of statutory withholding of removal or protection under the Convention Against Torture regulations.

See

88 FR at 31452;

Moncrieffe

Holder,

569 U.S. 184, 187 n.1 (2013).

Comment:

Several commenters opposed the justification for the proposed rule stating that if at most 4 percent of the cases would be affected, the proposed rule would not result in a meaningful portion of the EOIR caseload being eliminated. Similarly, several commenters objected to the justification for the proposed rule stating that the extremely limited number of cases it would apply to does not justify the unfairness of expecting newly arrived and often unrepresented noncitizens to prove that mandatory bars do not apply to them.

Response:

The proposed rule is not intended primarily as a backlog reduction tool. The rule expands DHS's ability to more quickly remove noncitizens who are enforcement priorities: those who present national security or public safety threats.

DHS does believe that the rule will conserve interagency government resources. Most significantly, noncitizens who are subject to the mandatory bars often must be detained throughout their removal proceedings. By issuing a decision at the earliest possible stage, Immigration and Customs Enforcement's (ICE's) detention resources are conserved in these cases. In addition, the rule would prevent some non-meritorious cases from adding to the immigration court pending caseload.

The Department acknowledges, however, that this rule will apply only to a small subset of cases, as explained in section V.A.3 of this preamble describing the low percentage of credible fear and reasonable fear cases in which AOs have flagged the possible applicability of mandatory bars and is therefore not likely to result in a significant reduction in EOIR's caseload. See Section V.A.2 and Table 4 below. Nevertheless, in the context of an immigration system that lacks the full resources needed to handle its workload, even small efficiency gains are important and may result in speedier decisions for other noncitizens.

Comment:

One commenter took issue with the justification for the proposed rule based on efficiency gains, stating that the proposed rule “will most certainly increase the time spent interviewing and writing up a decision for those asylum officers who choose to consider a bar in any given credible or reasonable fear interview and for their supervisors.” The same commenter stated that the proposed rule is silent on scheduling procedures for cases potentially impacted by the proposed rule, and does not acknowledge that the additional time spent considering bars will contribute to the asylum backlog. Another commenter similarly stated that by adding time to screening interviews, the proposed rule does not save resources so much as frontload the expenditure of resources on issues that may end up being relitigated at a later stage.

Response:

DHS disagrees with the commenter that the rule will significantly increase the time spent on screening interviews and decision making by USCIS. As the rule allows for permissive consideration of the mandatory bars, AOs will only expend additional resources interviewing when there is easily verifiable evidence that a mandatory bar may apply and the AO believes they can efficiently address the issue during a screening interview. Under current procedures, AOs are already required to ask questions regarding the mandatory bars in all screenings. DHS expects that, in the majority of cases, no additional new questions will need to be asked under this rule.

DHS does not anticipate the need to change the way it schedules screening interviews as a result of this rule. Scheduling procedures must be able to be quickly modified due to changes in workflow and are not managed through regulations.

The Department recognizes that where AOs exercise discretion to apply a mandatory bar at the screening stage because they believe the bar can efficiently and effectively be addressed in the screening, AOs may need to devote additional time developing the record as to that bar and analyzing the bar in the written determination. At the same time, where the AO bases a negative credible fear of persecution determination on the application of a mandatory bar, they will not have to perform a written credible fear of persecution analysis as to the merits of the persecution claim. Additionally, the Department believes that, in those cases, any possible added time will be offset by the efficiency gain to the broader immigration system as a whole of preventing noncitizens who are subject to a mandatory bar and would not otherwise be able to establish eligibility for protection under CAT from being placed in removal proceedings.

Comment:

One commenter objected to the amount of discretion for individual AOs provided by the proposed rule, coupled with the lack of guidance provided by the proposed rule regarding when AOs should consider mandatory bars. The commenter stated that this amount of discretion could lead to impermissible discrimination or profiling based on characteristics of the noncitizen. Another commenter objected to the lack of guidance or examples provided in the proposed rule about when the permissive consideration of bars would be appropriate, stating that AOs would need to “prophesy that such consideration would be fair and efficient before spending the time to delve into all the nuances of the case.”

Response:

The rule provides discretion for AOs to consider mandatory bars as a tool to maximize operational flexibility. However, AOs'

discretion under the rule is not unbounded. All of the determinations made by AOs in a screening interview are subject to supervisory review, and, for negative determinations, to review by immigration judges if requested by the noncitizen.

Decisions on whether the evidence of a mandatory bar present in the case is easily verifiable and can be dealt with efficiently in the context of a screening interview is necessarily fact specific. AOs are trained to consider evidence

in the context of where and from whom the noncitizen claims fear, to assess the reliability of that evidence, and to consider testimonial evidence from the noncitizen. Moreover, AOs are well-versed in evaluating evidence as it relates to applying mandatory bars in the context of the affirmative asylum caseload and in conducting fear determinations generally; accordingly, they are well-positioned to make the discretionary decision whether it would be efficient and effective to apply a mandatory bar in an individual fear screening, given the evidence available in the record.

USCIS, RAIO Directorate—Officer Training: Evidence (Apr. 24, 2024).

Comment:

Several commenters stated that DHS failed to provide any basis for what they described as a conclusory statement that the juncture at which the bars' applicability is considered would have any bearing on public safety or national security merely because those issues are the subject of the relevant mandatory bars.

Response:

Quickly removing noncitizens who may constitute a public safety or security threat is a high priority for the Department. Many of the noncitizens who would ultimately be subject to the mandatory bars that AOs may consider under this rule could, based on the same evidence, be considered public safety or national security threats. By prioritizing decisions and consequences for these noncitizens, the Department hopes to create disincentives to other noncitizens who may constitute public safety or national security threats who may be considering travelling to the United States.

D. Proposed Application of Mandatory Bars

1. Noncitizens in Credible Fear and Reasonable Fear Screenings (8 CFR 208.30 and 8 CFR 208.31)

Comment:

One commenter expressed concerns over potential limitations of telephonic credible and reasonable fear interviews, including privacy during the interview and the ability of the AO to assess non-verbal cues. Some commenters expressed concern that noncitizens in the screening process do not have adequate time to rest and prepare for their interviews.

Response:

Concerns about privacy during screening interviews and the limitations of telephonic interviews are outside the scope of this rulemaking, as this rulemaking will not affect the mechanics how DHS conducts credible fear and reasonable fear interviews. AOs already elicit information related to potential mandatory bars during screening interviews, and screening interviews are protected by regulations governing confidentiality. 8 CFR 208.6, 1208.6. For detained noncitizens, DHS provides private spaces so that noncitizens may speak freely to the AO during their interview, although, in some facilities, an officer may be present on site for safety purposes.

Telephonic credible fear and reasonable fear interviews are the current, longstanding policy,

and while AOs are not able to assess all nonverbal cues telephonically, they are able to assess some, such as tone of voice, inflection, and other auditory nonverbal communications. The Department notes that it, along with DOJ, addressed similar comments related to the conditions in which credible fear interviews are conducted in the Securing the Border Final Rule.

Credible Fear Procedures Manual, Section III.D.3 (May 10, 2023); Perryman, Brian R. INS Office of Field Operations. Security and Privacy Provisions for Credible Fear Interviews Under Expedited Removal, Memorandum to Regional Directors, District Directors, Assistant District Directors for Detention and Deportation and Asylum Office Directors (Washington, DC: 1 July 1997).

See

USCIS “Credible Fear Procedures Manual,” Section III.E.1,

https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf

; USCIS, “Reasonable Fear Procedures Manual,” Section III.E.1,

https://www.uscis.gov/sites/default/files/document/guides/ReasonableFearProceduresManual.pdf.

See

89 FR at 81201-02.

2. Noncitizens Subject to CLP Presumption of Ineligibility, Statutory Withholding of Removal Screening (§ 208.33)

Comment:

A few commenters expressed opposition to the proposed rule's inclusion of noncitizens subject to the CLP presumption of eligibility. One such commenter wrote that the provision to assess certain bars when the CLP rule applies could detrimentally affect the most vulnerable, including those fleeing oppressive regimes, adding that people fleeing countries where they face persecution do not have the time or means to navigate the complex and, at times, inaccessible legal pathways to asylum in the United States. The commenter also stated that empowering AOs to apply the bars would defy basic principles of fairness, increasing barriers for those subject to both the CLP rule and this proposed rule.

Response:

The Department rejects the commenters' claims that analysis of the mandatory bars alongside the application of CLP could disproportionately impact certain vulnerable populations and that the rule defies principles of fairness. Commenters did not provide any explanation for why applying mandatory bars in the context of screenings under the CLP rule, which is intended to promote lawful, safe, and orderly pathways to the United States and to benefit particularly vulnerable groups by removing the incentive to make a dangerous irregular migration journey, would disproportionately impact any class of noncitizens.

See

88 FR at 31314. Further, as noted elsewhere, this rule does not change substantive eligibility for asylum or for withholding of removal, so the discretionary authority of AOs provided by this rule to consider the covered statutory bars in CLP screening interviews will not affect the ultimate forms of relief available to a noncitizen. The Department will apply the rule fairly and emphasizes that the Department believes that this rule will impact a relatively small number of individuals who are not eligible for protection because they present a national security or public safety threat.

To the extent that commenters' concerns regard the merits of the CLP limitation on asylum eligibility, such concerns are outside the scope of this rule. The Department previously accepted comments on that rule and responded to those in the CLP final rule. 88 FR at 31324-441.

3. Inclusion of Specific Bars (

e.g.,

Particularly Serious Crimes Bar, Security Bar)

Comment:

Some commenters expressed concerns over the potential application of the persecutor bar with the limited time available for a screening interview. A commenter wrote that the persecutor bar should not be applied in fear screenings because it involves complex factual inquiries and has unsettled legal questions. Some commenters wrote that key questions of fact and law remained as to whether international treaty obligations required the consideration of duress in determinations involving the persecutor bar, or as to whether the failure to recognize the duress exception unfairly

harms bona fide asylum seekers, among other issues. Commenters also stated that AOs would need to make a prompt assessment of whether the duress exception applies, an area of law that is unsettled. The result, the commenter stated, would be erroneous applications of the bar based on poor factual development and rushed legal analysis. These commenters wrote that this analysis should occur at the merits stage, not in the expedited removal setting.

Response:

The Department understands the complexities of the persecutor bar,

but it disagrees with the commenters' statements that analysis of the persecutor bar is legally and factually too complex to be analyzed in a screening interview and that the extensive factual development required would lead to erroneous application of the bar. AOs already inquire into the potential applicability of mandatory bars, including the persecutor bar, during credible fear and reasonable fear screenings, noting any relevant information in the record. While many cases implicating the persecutor bar involve complex factual and legal issues, not all do. For example, a noncitizen who admits in credible testimony under oath to having voluntarily forced a woman to abort a pregnancy as part of the noncitizen's work as a health ministry official charged with enforcing the Chinese government's “one child policy” when it was in effect would clearly be barred from asylum and statutory withholding of removal as a persecutor.

For example, the possible “duress exception” referenced by commenters has had multiple interpretations over the years from the Board of Immigration Appeals and the Attorney General.

See Negusie

Holder,

555 U.S. 511 (2009) (“

Negusie I”

) (overruling a prior Board decision finding the plain language of the statute not allowing for a duress defense or exception and declaring the persecutor bar ambiguous as to consideration of duress or coercion);

Matter of Negusie,

27 I&N Dec. 347 (BIA 2018) (“

Negusie II”

) (interpreting the persecutor bar for asylum as including a narrow duress defense);

Matter of Negusie,

28 I&N Dec. 120 (A.G. 2020) (“

Negusie III”

) (finding the plain language of the persecutor bar as not allowing for consideration of duress);

Matter of Negusie,

28 I&N Dec. 399 (A.G. 2021) (“

Negusie IV”

) (ordering the Board to refer Negusie's case to the Attorney General and staying Negusie's case pending the Attorney General's review). The Attorney General's decision in

Negusie III

remains in effect, and any further review remains pending.

See Xie

INS,

434 F.3d 136, 143 (2d Cir. 2006) (holding that “transporting captive women to undergo forced abortions” pursuant to the one-child policy was assistance in persecution).

Furthermore, the persecutor bar shares multiple elements with the refugee definition at section 101(a)(42)(A) of the INA, 8 U.S.C. 1101(a)(42)(A), that officers must analyze in every asylum case, including whether the harm at issue rises to the level of persecution and whether it was or would be inflicted on account of one of the five protected grounds. The only additional considerations in the persecutor bar analysis involve analyzing the applicant's participation in (rather than experience or fear of) persecution, that is, whether the applicant ordered, incited, assisted, or otherwise participated in the persecution, and analyzing whether the applicant had the requisite knowledge that the persecution was being or would be carried out. While these additional elements may in some cases introduce a level of complexity that would counsel against consideration of the persecutor bar in a screening context, they do not necessarily do so in every case. This significant overlap with the refugee definition analysis, which AOs must routinely conduct in both credible fear screenings and affirmative asylum adjudications, demonstrates that considering the persecutor bar need not involve complex legal or factual issues in every case in which it arises and that in some cases where there is clear evidence it does apply, AOs will be able to address it efficiently in credible fear or reasonable fear screenings.

Where there is evidence available to the AO that triggers an inquiry into an applicable mandatory bar, and the AO can address that bar efficiently at the screening interview, then the noncitizen will be given the opportunity to establish, at the relevant standard, that the bar would not apply. Under this rule, AOs will have the flexibility to apply certain mandatory bars during screenings as it relates to eligibility for asylum and statutory withholding of removal, and the individual will continue to have the opportunity to establish a credible or reasonable fear of torture. Notably, this rule would not

require

AOs to

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