Security Bars and Processing; Confirmation of Effective Date; Partial Withdrawal

<RULE> DEPARTMENT OF HOMELAND SECURITY <CFR>8 CFR Parts 208 and 235</CFR> <RIN>RIN 1615-AC57</RIN> <DEPDOC>[CIS No. 2844-26; Docket No: USCIS 2020-0013]</DEPDOC> DEPARTMENT OF JUSTICE <SUBAGY>Executive Office for Immigration Review</SUBAGY> <CFR>8 CFR Parts 1003, 1208, and 1235</CFR> <RIN>RIN 1125-AB08</RIN> <DEPDOC>[Dir. Order No. 03-2025]</DEPDOC> <SUBJECT>Security Bars and Processing; Confirmation of Effective Date; Partial Withdrawal</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security (“DHS”); Executive Office for Immigration Review (“EOIR”), Department of Justice (“DOJ”). <HD SOURCE="HED">ACTION:</HD> Final rule; partial withdrawal and correction. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In December 2020, DHS and DOJ (collectively, “the Departments”) issued a final rule that clarified when an alien who poses a public health risk is ineligible for asylum and withholding of removal and revised their credible fear screening regulations. After multiple delays, the rule is scheduled to take effect on December 31, 2025. However, since December 2020, the Departments have further amended their regulations, complicating the codification of the 2020 rule. In this final rule, the Departments are withdrawing certain amendments from the 2020 rule while leaving unaltered the rule's substantive public health-related provisions, which will become effective as scheduled. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> <E T="03">Partial Withdrawal:</E> As of December 29, 2025, amendatory instructions 4, 5, 6, 7, 8, 12, 13, and 14 published on December 23, 2020, at 85 FR 84160, which were delayed by the rules published at 86 FR 6847 (Jan. 25, 2021), 86 FR 15069 (Mar. 22, 2021), 86 FR 73615 (Dec. 28, 2021), 87 FR 79789 (Dec. 28, 2022), and 89 FR 105386 (Dec. 27, 2024), are withdrawn. <E T="03">Effective Date:</E> The corrections in this document are effective December 31, 2025. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> <E T="03">For USCIS:</E> Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, DHS, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000. <E T="03">For EOIR:</E> Immigration Law Division, Office of Policy, Executive Office for Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041; telephone (703) 305-0289. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Summary</HD> In December 2020, the Departments published the final rule titled “Security Bars and Processing,” 85 FR 84160 (Dec. 23, 2020) (“Security Bars Final Rule”), to clarify that the statutory “danger to the security of the United States” bars to eligibility for asylum and withholding of removal encompass certain emergency public health concerns. Additionally, the Security Bars Final Rule introduced procedural changes relating to credible fear processing for certain aliens. The Security Bars Final Rule was slated to become effective on January 22, 2021; however, the rule's effective date was delayed multiple times due to a preliminary injunction against a related rule and due to conflicts with other rules issued while it was delayed. <E T="03">See</E> Security Bars and Processing; Delay of Effective Date, 86 FR 6847 (Jan. 25, 2021) (“January 2021 Delay Final Rule”); Security Bars and Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021) (“March 2021 Delay IFR”);  <SU>1</SU> <FTREF/> Security Bars and Processing; Delay of Effective Date, 86 FR 73615 (Dec. 28, 2021) (“December 2021 Delay IFR”); Security Bars and Processing; Delay of Effective Date, 87 FR 79789 (Dec. 28, 2022) (“December 2022 Delay IFR”); Security Bars and Processing; Delay of Effective Date, 89 FR 105386 (Dec. 27, 2024) (“December 2024 Delay IFR”). <FTNT> <SU>1</SU>  “IFR” means “interim final rule.” </FTNT> This rule withdraws amendatory instructions of the Security Bars Final Rule that would conflict with amendments made by rules issued while its effective date was delayed or that may otherwise cause confusion. The rule makes no changes to the substantive public health-related provisions that the Security Bars Final Rule adopted. Notably, even though the Departments will no longer codify provisions of the Security Bars Final Rule related to fear screening, the Departments may still consider the Security Bars Final Rule's clarifications of “danger to the security of the United States” bars to asylum and withholding of removal, in such screenings. <E T="03">See</E> Application of Certain Mandatory Bars in Fear Screenings, 89 FR 103370 (Dec. 18, 2024) (“DHS Mandatory Bars Rule”) (providing USCIS asylum officers (“AOs”) discretion to consider the potential applicability of specified mandatory bars to asylum and statutory withholding of removal during fear screening processes); <E T="03">see also</E> Clarification Regarding Bars to Eligibility During Credible Fear and Reasonable Fear Review, 89 FR 105392 (Dec. 27, 2024) (“EOIR Bars IFR”) (allowing Immigration Judges to review an AO's determination that a mandatory bar applies in credible and reasonable fear reviews). <HD SOURCE="HD1">II. Background</HD> <HD SOURCE="HD2">A. Legal Authority</HD> The Attorney General  <SU>2</SU> <FTREF/> and the Secretary of Homeland Security issue this rule pursuant to their respective authorities concerning asylum and withholding of removal determinations. <FTNT> <SU>2</SU>  In Attorney General Order Number 6260-2025 (May 8, 2025), the Attorney General exercised her authority under 28 U.S.C. 509 and 510 to delegate her authority to issue regulations related to immigration matters within the jurisdiction of EOIR to EOIR's Director. </FTNT> The Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135, as amended, transferred many functions related to the execution of Federal immigration law to the newly created DHS. The Immigration and Nationality Act (“INA” or “Act”), as amended, charges the Secretary “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,” INA 103(a)(1), 8 U.S.C. 1103(a)(1), and grants the Secretary the power to take all actions “necessary for carrying out” the Secretary's authority under the provisions of the INA, INA 103(a)(3), 8 U.S.C. 1103(a)(3). <SU>3</SU> <FTREF/> The HSA also transferred to DHS responsibility for initial adjudication of affirmative asylum applications, <E T="03">i.e.,</E> applications for asylum first made outside the removal context. <E T="03">See</E> 6 U.S.C. 271(b)(3). <SU>4</SU> <FTREF/> Specifically, the HSA vested the adjudication of affirmative asylum and refugee applications with USCIS. <SU>5</SU> <FTREF/> <E T="03">Id.</E> USCIS AOs determine in the first instance whether an alien's affirmative asylum application should be granted. <E T="03">See</E> 8 CFR 208.2(a)(1). <FTNT> <SU>3</SU>  Additionally, under the HSA, references to the “Attorney General” in the INA also encompass the Secretary with respect to statutory authorities vested in the Secretary by the HSA or subsequent legislation, including in relation to immigration proceedings before DHS. 6 U.S.C. 251, 271(b)(3), (5), 557. </FTNT> <FTNT> <SU>4</SU>  If USCIS does not approve an affirmative application for asylum and the alien appears to be inadmissible under section 212(a) of the INA, 8 U.S.C. 1182(a), or deportable under section 237(a) of the INA, 8 U.S.C. 1227(a), then, subject to certain exceptions, USCIS will place the alien into removal proceedings under section 240 of the INA, 8 U.S.C. 1229a, where the affirmative asylum application may be renewed for consideration by the Immigration Judge. 8 CFR 208.14(c)(1). </FTNT> <FTNT> <SU>5</SU>  When the HSA established DHS, the Citizenship and Immigration Services component was known as the “Bureau of Citizenship and Immigration Services.” 6 U.S.C. 271(a)(1). DHS later changed the name of the Bureau of Citizenship and Immigration Services to USCIS. Name Change From the Bureau of Citizenship and Immigration Services to U.S. Citizenship and Immigration Services, 69 FR 60938, 60938 (Oct. 13, 2004). </FTNT> But the HSA retained DOJ's authority over certain individual immigration adjudications including those related to defensive asylum applications, <E T="03">i.e.,</E> applications for asylum made in removal proceedings under section 240 of the INA, 8 U.S.C. 1229a (“section 240 removal proceedings”). EOIR conducts these adjudications, subject to the direction and regulation of the Attorney General. <E T="03">See</E> 6 U.S.C. 521; INA 103(g), 8 U.S.C. 1103(g); INA 240, 8 U.S.C. 1229a. Thus, Immigration Judges within DOJ generally continue to adjudicate all defensive asylum applications filed by aliens during section 240 removal proceedings in addition to adjudicating affirmative asylum applications referred to section 240 removal proceedings by USCIS. <SU>6</SU> <FTREF/> <E T="03">See</E> INA 101(b)(4), 8 U.S.C. 1101(b)(4) (defining “[I]mmigration [J]udge”); 8 CFR 208.14(c)(1), 1208.2(b); <E T="03">Dhakal</E> v. <E T="03">Sessions,</E> 895 F.3d 532, 536-37 (7th Cir. 2018) (describing affirmative and defensive asylum processes). The Board of Immigration Appeals (“BIA” or “Board”), also within DOJ's EOIR, in turn hears appeals from Immigration Judges' decisions in section 240 removal proceedings. <E T="03">See</E> 8 CFR 1003.1(b)(3). In addition, the INA provides “[t]hat determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” INA 103(a)(1), 8 U.S.C. 1103(a)(1). <FTNT> <SU>6</SU>  USCIS has jurisdiction to adjudicate defensive asylum applications file ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 119k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━