Clarification Regarding Bars to Eligibility During Credible Fear and Reasonable Fear Review

<RULE> DEPARTMENT OF JUSTICE <SUBAGY>Executive Office for Immigration Review</SUBAGY> <CFR>8 CFR Parts 1003 and 1208</CFR> <DEPDOC>[EOIR Docket No. 025-0910; A.G. Order No. 6107-2024]</DEPDOC> <RIN>RIN 1125-AB33</RIN> <SUBJECT>Clarification Regarding Bars to Eligibility During Credible Fear and Reasonable Fear Review</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Executive Office for Immigration Review, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule (“IFR”) makes a technical amendment to Department of Justice (“Department”) regulations to clarify that immigration judges' de novo review of asylum officers' credible fear and reasonable fear determinations shall, where relevant, include review of the asylum officer's application of any bars to asylum or withholding of removal under Department of Homeland Security (“DHS”) regulations, as well as other clarifying technical changes related to credible fear and reasonable fear processes. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This interim final rule is effective December 27, 2024. <E T="03">Comments:</E> Electronic comments must be submitted, and written comments must be postmarked or otherwise indicate a shipping date on or before January 27, 2025. The electronic Federal Docket Management System (FDMS) at <E T="03">https://www.regulations.gov</E> will accept electronic comments until 11:59 p.m. Eastern Time on that date. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> If you wish to provide comments regarding this rulemaking, you must submit comments, identified by the agency name and reference RIN 1125-AB33 or EOIR Docket No. 025-0910, by one of the two methods below. • <E T="03">Federal eRulemaking Portal: www.regulations.gov.</E> Follow the website instructions for submitting comments. • <E T="03">Mail:</E> Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/shipment to: Sarah Flinn, Acting Assistant Director for Policy, Office of Policy, Executive Office for Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper handling, please reference the agency name and RIN 1125-AB33 or EOIR Docket No. 025-0910 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Sarah Flinn, Acting Assistant Director for Policy, Office of Policy, Executive Office for Immigration Review, Department of Justice, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0289 (not a toll-free call). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Public Participation</HD> Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this IFR via one of the methods and by the deadline stated above. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this IFR. Comments that will provide the most assistance to the Department will reference a specific portion of the IFR; explain the reason for any recommended change; and include data, information, or authority that support such recommended change. Please note that all comments received are considered part of the public record and made available for public inspection at <E T="03">www.regulations.gov.</E> Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify the confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on <E T="03">www.regulations.gov.</E> Personally identifiable information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. The Department may withhold from public viewing information provided in comments that it determines may impact the privacy of an individual or is offensive. For additional information, please read the “Privacy & Security Notice” that is available via the link in the footer of <E T="03">www.regulations.gov.</E> To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the <E T="02">FOR FURTHER INFORMATION CONTACT</E> paragraph above for agency contact information. <HD SOURCE="HD1">II. Legal Authority</HD> The Department issues this IFR pursuant to section 103(g) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135 (as amended). Under the HSA, the Attorney General is charged with “such authorities and functions under [the INA] and all other laws relating to the immigration and naturalization of [noncitizens]  <SU>1</SU> <FTREF/> as were [previously] exercised by the Executive Office for Immigration Review [(“EOIR”)], or by the Attorney General with respect to [EOIR].” INA 103(g)(1), 8 U.S.C. 1103(g)(1); <E T="03">see also</E> 6 U.S.C. 521. The Attorney General also has the authority to “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” the Attorney General's authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2). These authorities cover forms of relief or protection from removal, including asylum, statutory withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and protection under the regulations implementing U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  For purposes of the discussion in this preamble, the Department uses the term “noncitizen” synonymously with the term “alien” as it is used in the INA. <E T="03">See</E> INA 101(a)(3), 8 U.S.C. 1101(a)(3); 8 CFR 1001.1(gg). </FTNT> <FTNT> <SU>2</SU>  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 114. </FTNT> Noncitizens who are physically present or arrive in the United States as provided in section 208 of the INA, 8 U.S.C. 1158, may apply for asylum, subject to certain exceptions in section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2). By statute, certain noncitizens are ineligible to apply for or to be granted asylum, and Congress has delegated to the Attorney General the authority to establish additional limitations and conditions, consistent with applicable statutes, under which noncitizens shall be ineligible for asylum. <E T="03">See</E> INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (statutory bars to asylum); INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C) (additional limitation authority); INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (allowing for additional regulatory conditions or limitations on consideration of asylum applications). The Attorney General is also charged with providing a review procedure for negative credible fear determinations regarding asylum made by an asylum officer during the expedited removal process. <E T="03">See</E> INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). Additionally, the United States is a party to the 1967 United Nations 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 “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.” 19 U.S.T. at 6276. Congress codified these obligations in the Refugee Act of 1980, creating the precursor to what is now known as statutory withholding of removal. <SU>3</SU> <FTREF/> The Supreme Court has long recognized that the United States implements its non-refoulement obligations under Article 33 of the Refugee Convention (via the Refugee Protocol) through the statutory withholding of removal provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), 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. <SU>4</SU> <FTREF/> <E T="03">See</E> INA 241(b)(3), ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 87k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━