Application of Certain Mandatory Bars in Fear Screenings

DEPARTMENT OF HOMELAND SECURITY <CFR>8 CFR Part 208</CFR> <DEPDOC>[DHS Docket No. USCIS-2024-0005]</DEPDOC> <RIN>RIN 1615-AC91</RIN> <SUBJECT>Application of Certain Mandatory Bars in Fear Screenings</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security (“DHS” or “the Department”). <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking (NPRM). <SUM> <HD SOURCE="HED">SUMMARY:</HD> DHS proposes to allow asylum officers (“AOs”) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during certain fear screenings. Specifically, under this proposed rule, AOs would be authorized to consider certain bars during credible and reasonable fear screenings, including credible fear screenings where the Circumvention of Lawful Pathways (“CLP”) rule applies. The proposed 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments on the proposed rule must be submitted on or before June 12, 2024. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS-2024-0005, through the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov</E> . Follow the website instructions for submitting comments. Comments submitted in a manner other than the one listed above, including emails or letters sent to the Department's officials, will not be considered comments on the proposed rule and may not receive a response from the Department. Please note that the Department cannot accept any comments that are hand-delivered or couriered. In addition, the Department cannot accept comments contained on any form of digital media storage devices, such as CDs, DVDs, or USB drives. The Department is not accepting mailed comments at this time. If you cannot submit your comment by using <E T="03">https://www.regulations.gov</E> , please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Daniel Delgado, Director for Immigration Policy, Office of Strategy, Policy, and Plans, U.S. Department of Homeland Security; telephone (202) 447-3459 (not a toll-free call). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Public Participation</HD> Interested parties are invited to submit comments on this action by submitting relevant written data, views, or arguments. To provide the most assistance to the Department, comments should reference a specific portion of the proposed rule; explain the reason for any recommendation; and include data, information, or authority that supports the recommended course of action. Comments submitted to DHS must be in English, or an English translation must be provided. Comments submitted in a manner other than those listed above, including emails or letters sent to the Department's officials, will not be considered comments on the proposed rule and may not receive a response from the Department. <E T="03">Instructions:</E> If you submit a comment, you must include the agency name and the DHS Docket No. USCIS-2024-0005 for this rulemaking. All submissions will be posted, without change, to the Federal eRulemaking Portal at <E T="03">https://www.regulations.gov</E> and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any public comment submission you make to the Department. The Department may withhold information provided in comments from public viewing that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at <E T="03">https://www.regulations.gov</E> . <E T="03">Docket:</E> For access to the docket and to read background documents or comments received, go to <E T="03">https://www.regulations.gov</E> , referencing DHS Docket No. USCIS-2024-0005. You may also sign up for email alerts on the online docket to be notified when comments are posted or when the final rule is published. <HD SOURCE="HD1">II. Legal Authority and Background</HD> <HD SOURCE="HD2">A. Legal Authority</HD> The Immigration and Nationality Act (“INA”), as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135, as amended, 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 103(a)(1), 8 U.S.C. 1103(a)(1). The INA also grants the Secretary the authority to establish regulations and take other actions “necessary for carrying out” the Secretary's authority to administer and enforce the immigration laws. INA 103(a)(1) and (3), 8 U.S.C. 1103(a)(1) and (3); <E T="03">see also</E> 6 U.S.C. 202 (authorities of the Secretary), 271(a)(3) (conferring authority on USCIS Director to establish “policies for performing [immigration adjudication] functions”). Under the INA, DHS and the Department of Justice (“DOJ”) each have authority over credible fear screenings. USCIS AOs are charged with conducting initial credible fear screenings, INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The INA also provides the Secretary and Attorney General authority to publish regulatory amendments governing their respective roles regarding inspection and admission, detention and removal, withholding of removal, and deferral of removal. <E T="03">See</E> INA 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 552U.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.” Congress implemented U.S. non-refoulement obligations under the 1967 Protocol in the Refugee Act of 1980, creating the precursor to what is now known as statutory withholding of removal. The Supreme Court has long recognized that the United States implements its nonrefoulement obligations under Article 33 of the Refugee Convention (via the Refugee Protocol) through the statutory withholding of removal provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), which provides that a noncitizen may not be removed to a country where their life or freedom would be threatened because of one of the protected grounds listed in Article 33 of the Refugee Convention. <E T="03">See</E> INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16, 1208.16; <E T="03">see also INS</E> v. <E T="03">Cardoza-Fonseca,</E> 480 U.S. 421, 429-30 (1987) (discussing the statutory precursor to INA 241(b)(3), INA 243(h)); <E T="03">INS</E> v. <E T="03">Stevic,</E> 467 U.S. 407 (1984) (same). The INA also authorizes the Secretary and the Attorney General to implement statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). <E T="03">See</E> INA 103(a)(1) and (3), (g)(1) and (2); 8 U.S.C. 1103(a)(1) and (3), (g)(1) and (2). The Departments also have authority to implement U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994) (“CAT”). The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”) provides the Secretary with the authority to “prescribe regulations to implement the obligations of the United States under Article 3 of the [CAT], subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.” Public Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 1231 note). DHS and DOJ have implemented the United States' obligations under Article 3 of the CAT in their respective immigration regulations, consistent with FARRA. <E T="03">See, e.g.,</E> 8 CFR 208.16(c) through 208.18, 1208.16(c) through 1208.18; Regulations Concerning the Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), as corrected by 64 FR 13881 (Mar. 23, 1999). <HD SOURCE="HD2">B. The Asylum and Expedited Removal Process</HD> <HD SOURCE="HD3">1. Asylum and Related Protection</HD> Asylum is a discretionary benefit that can be granted by the Attorney General or the Secretary if a noncitizen establishes, among other things, that they have experienced past persecution or have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the Attorney General and Secretary “may” grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 118k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━