Application of Certain Mandatory Bars in Fear Screenings

<RULE> DEPARTMENT OF HOMELAND SECURITY <CFR>8 CFR Part 208</CFR> <DEPDOC>[CIS No. 2776-24; 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, DHS. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective January 17, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP-2">II. Legal Authority</FP> <FP SOURCE="FP-2">III. Provisions of the Final Rule</FP> <FP SOURCE="FP-2">IV. Response to Public Comments on the Proposed Rule</FP> <FP SOURCE="FP1-2">A. Summary of Comments on the Proposed Rule</FP> <FP SOURCE="FP1-2">B. General Feedback on the Proposed Rule</FP> <FP SOURCE="FP1-2">1. General Support for the Proposed Rule</FP> <FP SOURCE="FP1-2">C. Legal Authority and Background</FP> <FP SOURCE="FP1-2">1. DHS Legal Authority</FP> <FP SOURCE="FP1-2">2. DHS's Justification, Background, and Statements on the Need for the Rule</FP> <FP SOURCE="FP1-2">3. Other/General Comments on Legal Authority and Background</FP> <FP SOURCE="FP1-2">D. Proposed Application of Mandatory Bars</FP> <FP SOURCE="FP1-2">1. Noncitizens in Credible Fear Screenings (8 CFR 208.30)</FP> <FP SOURCE="FP1-2">2. Noncitizens Subject to Circumvention of Lawful Pathways Presumption of Ineligibility, Statutory Withholding Screen (8 CFR 208.33)</FP> <FP SOURCE="FP1-2"> 3. Inclusion of Specific Bars ( <E T="03">e.g.,</E> Particularly Serious Crimes Bar, Security Bar) </FP> <FP SOURCE="FP1-2"> 4. Exclusion of Specific Bars ( <E T="03">e.g.,</E> “Firm Resettlement Bar,” INA Secs. 208(a)(2), (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2), (b)(2)(A)(vi)) </FP> <FP SOURCE="FP1-2">5. Exclusion of CAT Screenings (Withholding of Removal) (8 CFR 208.30(e)(3), 208.33(b)(2)(i))</FP> <FP SOURCE="FP1-2">6. Other/General Comments on the Application of Bars</FP> <FP SOURCE="FP1-2"> 7. Screening Procedures, AO Determinations, Immigration Judge Review of Negative Fear Determinations ( <E T="03">e.g.,</E> Discretionary vs. Requirement, Guidance, Cases Where Bars Are Outcome-Determinative) </FP> <FP SOURCE="FP1-2">8. Burden of Proof</FP> <FP SOURCE="FP1-2">9. Other General/Mixed Feedback and Suggested Alternatives</FP> <FP SOURCE="FP1-2">E. Other Issues Relating to the Rule</FP> <FP SOURCE="FP1-2">1. Coordination With DOJ in the Rulemaking</FP> <FP SOURCE="FP1-2">2. Security Bars and Processing Rulemaking</FP> <FP SOURCE="FP1-2">3. Out of Scope Comments</FP> <FP SOURCE="FP1-2">F. Statutory and Regulatory Requirements</FP> <FP SOURCE="FP1-2">1. Administrative Procedure Act</FP> <FP SOURCE="FP1-2">2. Regulatory Impact Analysis Impacts and Benefits (E.O. 12866 and E.O. 13563)</FP> <FP SOURCE="FP1-2"> 3. Paperwork Reduction Act ( <E T="03">e.g.,</E> Comments on Forms and Burden Estimates) </FP> <FP SOURCE="FP1-2"> 4. Other/General Comments on Statutory and Regulatory Requirements ( <E T="03">e.g.,</E> 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) </FP> <FP SOURCE="FP1-2">5. Out of Scope</FP> <FP SOURCE="FP-2">V. Statutory and Regulatory Requirements</FP> <FP SOURCE="FP1-2">A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)</FP> <FP SOURCE="FP1-2">B. Regulatory Flexibility Act (RFA) </FP> <FP SOURCE="FP1-2">C. Unfunded Mandates Reform Act of 1995 (UMRA)</FP> <FP SOURCE="FP1-2">D. Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act)</FP> <FP SOURCE="FP1-2">E. Executive Order 13132 (Federalism)</FP> <FP SOURCE="FP1-2">F. Executive Order 12988 (Civil Justice Reform)</FP> <FP SOURCE="FP1-2">G. Family Assessment</FP> <FP SOURCE="FP1-2">H. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)</FP> <FP SOURCE="FP1-2">I. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks)</FP> <FP SOURCE="FP1-2">J. National Environmental Policy Act (NEPA)</FP> <FP SOURCE="FP1-2">K. Paperwork Reduction Act (PRA)</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. Mandatory Bars NPRM</HD> 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. <HD SOURCE="HD2">B. Securing the Border</HD> After DHS issued the NPRM, on June 3, 2024, the President signed Presidential Proclamation 10773, <E T="03">Securing the Border,</E> 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. <E T="03">Id.</E> 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 ( <E T="03">i.e.,</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. <E T="03">Id.</E> 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 345k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━