[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Rules and Regulations]
[Pages 55934-55953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24594]



[[Page 55934]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 208

RIN 1615-AC34

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1208

[EOIR Docket No. 18-0501; A.G. Order No. 4327-2018]
RIN 1125-AA89


Aliens Subject to a Bar on Entry Under Certain Presidential
Proclamations; Procedures for Protection Claims

AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.

ACTION: Interim final rule; request for comment.

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SUMMARY: The Department of Justice and the Department of Homeland
Security (``DOJ,'' ``DHS,'' or, collectively, ``the Departments'') are
adopting an interim final rule governing asylum claims in the context
of aliens who are subject to, but contravene, a suspension or
limitation on entry into the United States through the southern border
with Mexico that is imposed by a presidential proclamation or other
presidential order (``a proclamation'') under section 212(f) or
215(a)(1) of the Immigration and Nationality Act (``INA''). Pursuant to
statutory authority, the Departments are amending their respective
existing regulations to provide that aliens subject to such a
proclamation concerning the southern border, but who contravene such a
proclamation by entering the United States after the effective date of
such a proclamation, are ineligible for asylum. The interim rule, if
applied to a proclamation suspending the entry of aliens who cross the
southern border unlawfully, would bar such aliens from eligibility for
asylum and thereby channel inadmissible aliens to ports of entry, where
they would be processed in a controlled, orderly, and lawful manner.
This rule would apply only prospectively to a proclamation issued after
the effective date of this rule. It would not apply to a proclamation
that specifically includes an exception for aliens applying for asylum,
nor would it apply to aliens subject to a waiver or exception provided
by the proclamation. DHS is amending its regulations to specify a
screening process for aliens who are subject to this specific bar to
asylum eligibility. DOJ is amending its regulations with respect to
such aliens. The regulations would ensure that aliens in this category
who establish a reasonable fear of persecution or torture could seek
withholding of removal under the INA or protection from removal under
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT'').

DATES:
Effective date: This rule is effective November 9, 2018.
Submission of public comments: Written or electronic comments must
be submitted on or before January 8, 2019. Written comments postmarked
on or before that date will be considered timely. The electronic
Federal Docket Management System will accept comments prior to midnight
eastern standard time at the end of that day.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-
0501, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please
reference EOIR Docket No. 18-0501 on your correspondence. This mailing
address may be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Lauren Alder Reid, Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact
Telephone Number (703) 305-0289 (not a toll-free call).

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone
Number (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Departments also invite comments that relate to the economic
or federalism effects that might result from this rule. To provide the
most assistance to the Departments, comments should reference a
specific portion of the rule; explain the reason for any recommended
change; and include data, information, or authority that supports the
recommended change.
All comments submitted for this rulemaking should include the
agency name and EOIR Docket No. 18-0501. Please note that all comments
received are considered part of the public record and made available
for public inspection at www.regulations.gov. Such information includes
personally identifiable information (such as a person's name, address,
or any other data that might personally identify that individual) that
the commenter voluntarily submits.
If you want to submit personally identifiable information as part
of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first
paragraph of your comment and precisely and prominently identify the
information of which you seek redaction.
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 and precisely and prominently identify the confidential
business information of which you seek redaction. 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
www.regulations.gov. Personally identifiable information and
confidential business information provided as set forth above will be
placed in the public docket file of DOJ's Executive Office of
Immigration Review (``EOIR''), but not posted online. To inspect the
public docket file in person, you must make an appointment with EOIR.
Please see the FOR FURTHER INFORMATION CONTACT paragraph above for the
contact information specific to this rule.

II. Purpose of This Interim Final Rule

This interim final rule (``interim rule'' or ``rule'') governs
eligibility for asylum and screening procedures for aliens subject to a
presidential proclamation or order restricting entry issued pursuant to
section 212(f) of the INA, 8 U.S.C. 1182(f), or section 215(a)(1) of
the INA, 8 U.S.C. 1185(a)(1), that concerns entry to the United States
along the southern border with Mexico and is issued on or after the
effective date of this rule. Pursuant to statutory authority, the
interim rule renders such aliens ineligible for asylum if they enter
the United States after the effective date of

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such a proclamation, become subject to the proclamation, and enter the
United States in violation of the suspension or limitation of entry
established by the proclamation. The interim rule, if applied to a
proclamation suspending the entry of aliens who cross the southern
border unlawfully, would bar such aliens from eligibility for asylum
and thereby channel inadmissible aliens to ports of entry, where such
aliens could seek to enter and would be processed in an orderly and
controlled manner. Aliens who enter prior to the effective date of an
applicable proclamation will not be subject to this asylum eligibility
bar unless they depart and reenter while the proclamation remains in
effect. Aliens also will not be subject to this eligibility bar if they
fall within an exception or waiver within the proclamation that makes
the suspension or limitation of entry in the proclamation inapplicable
to them, or if the proclamation provides that it does not affect
eligibility for asylum.
As discussed further below, asylum is a discretionary immigration
benefit. In general, aliens may apply for asylum if they are physically
present or arrive in the United States, irrespective of their status
and irrespective of whether or not they arrive at a port of entry, as
provided in section 208(a) of the INA, 8 U.S.C. 1158(a). Congress,
however, provided that certain categories of aliens could not receive
asylum and further delegated to the Attorney General and the Secretary
of Homeland Security (``Secretary'') the authority to promulgate
regulations establishing additional bars on eligibility that are
consistent with the asylum statute and ``any other conditions or
limitations on the consideration of an application for asylum'' that
are consistent with the INA. See INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C.
1158(b)(2)(C), (d)(5)(B).
In the Illegal Immigration Reform and Immigration Responsibility
Act of 1996 (``IIRIRA''), Public Law 104-208, Congress, concerned with
rampant delays in proceedings to remove illegal aliens, created
expedited procedures for removing inadmissible aliens, and authorized
the extension of such procedures to aliens who entered illegally and
were apprehended within two years of their entry. See generally INA
235(b), 8 U.S.C. 1225(b). Those procedures were aimed at facilitating
the swift removal of inadmissible aliens, including those who had
entered illegally, while also expeditiously resolving any asylum
claims. For instance, Congress provided that any alien who asserted a
fear of persecution would appear before an asylum officer, and that any
alien who is determined to have established a ``credible fear''--
meaning a ``significant possibility . . . that the alien could
establish eligibility for asylum'' under the asylum statute--would be
detained for further consideration of an asylum claim. See INA
235(b)(1), (b)(1)(B)(v), 8 U.S.C. 1225(b)(1), (b)(1)(B)(v).
When the expedited procedures were first implemented approximately
two decades ago, relatively few aliens within those proceedings
asserted an intent to apply for asylum or a fear of persecution.
Rather, most aliens found inadmissible at the southern border were
single adults who were immediately repatriated to Mexico. Thus, while
the overall number of illegal aliens apprehended was far higher than it
is today (around 1.6 million in 2000), aliens could be processed and
removed more quickly, without requiring detention or lengthy court
proceedings.
In recent years, the United States has seen a large increase in the
number and proportion of inadmissible aliens subject to expedited
removal who assert an intent to apply for asylum or a fear of
persecution during that process and are subsequently placed into
removal proceedings in immigration court. Most of those aliens
unlawfully enter the country between ports of entry along the southern
border. Over the past decade, the overall percentage of aliens subject
to expedited removal and referred, as part of the initial screening
process, for a credible-fear interview jumped from approximately 5% to
above 40%, and the total number of credible-fear referrals for
interviews increased from about 5,000 a year in Fiscal Year (``FY'')
2008 to about 97,000 in FY 2018. Furthermore, the percentage of cases
in which asylum officers found that the alien had established a
credible fear--leading to the alien's placement in full immigration
proceedings under section 240 of the INA, 8 U.S.C. 1229a--has also
increased in recent years. In FY 2008, when asylum officers resolved a
referred case with a credible-fear determination, they made a positive
finding about 77% of the time. That percentage rose to 80% by FY 2014.
In FY 2018, that percentage of positive credible-fear determinations
has climbed to about 89% of all cases. After this initial screening
process, however, significant proportions of aliens who receive a
positive credible-fear determination never file an application for
asylum or are ordered removed in absentia. In FY 2018, a total of about
6,000 aliens who passed through credible-fear screening (17% of all
completed cases, 27% of all completed cases in which an asylum
application was filed, and about 36% of cases where the asylum claim
was adjudicated on the merits) established that they should be granted
asylum.
Apprehending and processing this growing number of aliens who cross
illegally into the United States and invoke asylum procedures thus
consumes an ever increasing amount of resources of DHS, which must
surveil, apprehend, and process the aliens who enter the country.
Congress has also required DHS to detain all aliens during the pendency
of their credible-fear proceedings, which can take days or weeks. And
DOJ must also dedicate substantial resources: Its immigration judges
adjudicate aliens' claims, and its officials are responsible for
prosecuting and maintaining custody over those who violate the criminal
law. The strains on the Departments are particularly acute with respect
to the rising numbers of family units, who generally cannot be detained
if they are found to have a credible fear, due to a combination of
resource constraints and the manner in which the terms of the
Settlement Agreement in Flores v. Reno have been interpreted by courts.
See Stipulated Settlement Agreement, Flores v. Reno, No. 85-cv-4544
(N.D. Cal. Jan. 17, 1997).
In recent weeks, United States officials have each day encountered
an average of approximately 2,000 inadmissible aliens at the southern
border. At the same time, large caravans of thousands of aliens,
primarily from Central America, are attempting to make their way to the
United States, with the apparent intent of seeking asylum after
entering the United States unlawfully or without proper documentation.
Central American nationals represent a majority of aliens who enter the
United States unlawfully, and are also disproportionately likely to
choose to enter illegally between ports of entry rather than presenting
themselves at a port of entry. As discussed below, aliens who enter
unlawfully between ports of entry along the southern border, as opposed
to at a port of entry, pose a greater strain on DHS's already stretched
detention and processing resources and also engage in conduct that
seriously endangers themselves, any children traveling with them, and
the U.S. Customs and Border Protection (``CBP'') agents who seek to
apprehend them.
The United States has been engaged in sustained diplomatic
negotiations with Mexico and the Northern Triangle countries (Honduras,
El Salvador, and Guatemala) regarding the situation on the southern
border, but those negotiations have, to date, proved

[[Page 55936]]

unable to meaningfully improve the situation.
The purpose of this rule is to limit aliens' eligibility for asylum
if they enter in contravention of a proclamation suspending or
restricting their entry along the southern border. Such aliens would
contravene a measure that the President has determined to be in the
national interest. For instance, a proclamation restricting the entry
of inadmissible aliens who enter unlawfully between ports of entry
would reflect a determination that this particular category of aliens
necessitates a response that would supplement existing prohibitions on
entry for all inadmissible aliens. Such a proclamation would encourage
such aliens to seek admission and indicate an intention to apply for
asylum at ports of entry. Aliens who enter in violation of that
proclamation would not be eligible for asylum. They would, however,
remain eligible for statutory withholding of removal under section
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or for protections under the
regulations issued under the authority of the implementing legislation
regarding Article 3 of the CAT.
The Departments anticipate that a large number of aliens who would
be subject to a proclamation-based ineligibility bar would be subject
to expedited-removal proceedings. Accordingly, this rule ensures that
asylum officers and immigration judges account for such aliens'
ineligibility for asylum within the expedited-removal process, so that
aliens subject to such a bar will be processed swiftly. Furthermore,
the rule continues to afford protection from removal for individuals
who establish that they are more likely than not to be persecuted or
tortured in the country of removal. Aliens rendered ineligible for
asylum by this interim rule and who are referred for an interview in
the expedited-removal process are still eligible to seek withholding of
removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or
protections under the regulations issued under the authority of the
implementing legislation regarding Article 3 of the CAT. Such aliens
could pursue such claims in proceedings before an immigration judge
under section 240 of the INA, 8 U.S.C. 1229a, if they establish a
reasonable fear of persecution or torture.

III. Background

A. Joint Interim Rule

The Attorney General and the Secretary of Homeland Security publish
this joint interim rule pursuant to their respective authorities
concerning asylum determinations.
The Homeland Security Act of 2002, Public Law 107-296, as amended,
transferred many functions related to the execution of federal
immigration law to the newly created Department of Homeland Security.
The Homeland Security Act of 2002 charges the Secretary ``with the
administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens,'' 8 U.S.C.
1103(a)(1), and grants the Secretary the power to take all actions
``necessary for carrying out'' the provisions of the INA, id.
1103(a)(3). The Homeland Security Act of 2002 also transferred to DHS
some responsibility for affirmative asylum applications, i.e.,
applications for asylum made outside the removal context. See 6 U.S.C.
271(b)(3). Those authorities have been delegated to U.S. Citizenship
and Immigration Services (``USCIS''). USCIS asylum officers determine
in the first instance whether an alien's affirmative asylum application
should be granted. See 8 CFR 208.9.
But the Homeland Security Act of 2002 retained authority over
certain individual immigration adjudications (including those related
to defensive asylum applications) in DOJ, under the Executive Office
for Immigration Review (``EOIR'') and subject to the direction and
regulation of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g).
Thus, immigration judges within DOJ continue to adjudicate all asylum
applications made by aliens during the removal process (defensive
asylum applications), and they also review affirmative asylum
applications referred by USCIS to the immigration court. See INA
101(b)(4), 8 U.S.C. 1101(b)(4); 8 CFR 1208.2; Dhakal v. Sessions, 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, in turn hears appeals from immigration
judges' decisions. 8 CFR 1003.1. 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). This broad division of functions and authorities informs
the background of this interim rule.

B. Legal Framework for Asylum

Asylum is a form of discretionary relief under section 208 of the
INA, 8 U.S.C. 1158, that precludes an alien from being subject to
removal, creates a path to lawful permanent resident status and
citizenship, and affords a variety of other benefits, such as allowing
certain alien family members to obtain lawful immigration status
derivatively. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir.
2017); see also, e.g., INA 208(c)(1)(A), (C), 8 U.S.C. 1158(c)(1)(A),
(C) (asylees cannot be removed and can travel abroad with prior
consent); INA 208(b)(3), 8 U.S.C. 1158(b)(3) (allowing derivative
asylum for asylee's spouse and unmarried children); INA 209(b), 8
U.S.C. 1159(b) (allowing the Attorney General or Secretary to adjust
the status of an asylee to that of a lawful permanent resident); INA
316(a), 8 U.S.C. 1427(a) (describing requirements for naturalization of
lawful permanent residents). Aliens who are granted asylum are
authorized to work in the United States and may receive certain
financial assistance from the federal government. See INA 208(c)(1)(B),
(d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2); 8 U.S.C. 1612(a)(2)(A),
(b)(2)(A); 8 U.S.C. 1613(b)(1); 8 CFR 274a.12(a)(5); see also 8 CFR
274a.12(c)(8) (providing that asylum applicants may seek employment
authorization 150 days after filing a complete application for asylum).
Aliens applying for asylum must establish that they meet the
definition of a ``refugee,'' that they are not subject to a bar to the
granting of asylum, and that they merit a favorable exercise of
discretion. INA 208(b)(1), 240(c)(4)(A), 8 U.S.C. 1158(b)(1),
1229a(c)(4)(A); see Moncrieffe v. Holder, 569 U.S. 184, 187 (2013)
(describing asylum as a form of ``discretionary relief from removal'');
Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (``Asylum is a
discretionary form of relief . . . . Once an applicant has established
eligibility . . . it remains within the Attorney General's discretion
to deny asylum.''). Because asylum is a discretionary form of relief
from removal, the alien bears the burden of showing both eligibility
for asylum and why the Attorney General or Secretary should exercise
discretion to grant relief. See INA 208(b)(1), 240(c)(4)(A), 8 U.S.C.
1158(b)(1), 1229a(c)(4)(A); Romilus v. Ashcroft, 385 F.3d 1, 8 (1st
Cir. 2004).
Section 208 of the INA provides that, in order to apply for asylum,
an applicant must be ``physically present'' or ``arriv[e]'' in the
United States, ``whether or not at a designated port of arrival'' and
``irrespective of such alien's status''--but the applicant must also
``apply for asylum in accordance with'' the rest of section 208 or with
the expedited-removal process in section 235 of the INA. INA 208(a)(1),
8 U.S.C. 1158(a)(1). Furthermore, to be granted asylum, the alien must
demonstrate that he or she meets the statutory definition

[[Page 55937]]

of a ``refugee,'' INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A), and is not
subject to an exception or bar, INA 208(b)(2), 8 U.S.C. 1158(b)(2). The
alien bears the burden of proof to establish that he or she meets these
criteria. INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); 8 CFR
1240.8(d).
For an alien to establish that he or she is a ``refugee,'' the
alien generally must be someone who is outside of his or her country of
nationality and ``is unable or unwilling to return to . . . that
country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion.'' INA 101(a)(42)(A), 8 U.S.C.
1101(a)(42)(A).
In addition, if evidence indicates that one or more of the grounds
for mandatory denial may apply, an alien must show that he or she does
not fit within one of the statutory bars to granting asylum and is not
subject to any ``additional limitations and conditions . . . under
which an alien shall be ineligible for asylum'' established by a
regulation that is ``consistent with'' section 208 of the INA. INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see 8 CFR 1240.8(d). The INA
currently bars a grant of asylum to any alien: (1) Who ``ordered,
incited, assisted, or otherwise participated in the persecution of any
person on account of'' a protected ground; (2) who, ``having been
convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of the United States''; (3) for
whom there are serious reasons to believe the alien ``has committed a
serious nonpolitical crime outside the United States'' prior to arrival
in the United States; (4) for whom ``there are reasonable grounds for
regarding the alien as a danger to the security of the United States'';
(5) who is described in the terrorism-related inadmissibility grounds,
with limited exceptions; or (6) who ``was firmly resettled in another
country prior to arriving in the United States.'' INA 208(b)(2)(A)(i)-
(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi).
An alien who falls within any of those bars is subject to mandatory
denial of asylum. Where there is evidence that ``one or more of the
grounds for mandatory denial of the application for relief may apply,''
the applicant in immigration court proceedings bears the burden of
establishing that the bar at issue does not apply. 8 CFR 1240.8(d); see
also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008)
(applying 8 CFR 1240.8(d) in the context of the aggravated felony bar
to asylum); Gao v. U.S. Att'y Gen., 500 F.3d 93, 98 (2d Cir. 2007)
(applying 8 CFR 1240.8(d) in the context of the persecutor bar); Chen
v. U.S. Att'y Gen., 513 F.3d 1255, 1257 (11th Cir. 2008) (same).
Because asylum is a discretionary benefit, aliens who are eligible
for asylum are not automatically entitled to it. After demonstrating
eligibility, aliens must further meet their burden of showing that the
Attorney General or Secretary should exercise his or her discretion to
grant asylum. See INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A) (the
``Secretary of Homeland Security or the Attorney General may grant
asylum to an alien'' who applies in accordance with the required
procedures and meets the definition of a ``refugee''). The asylum
statute's grant of discretion ``is a broad delegation of power, which
restricts the Attorney General's discretion to grant asylum only by
requiring the Attorney General to first determine that the asylum
applicant is a `refugee.''' Komarenko v. INS, 35 F.3d 432, 436 (9th
Cir. 1994), overruled on other grounds by Abebe v. Mukasey, 554 F.3d
1203 (9th Cir. 2009) (en banc) (per curiam). Immigration judges and
asylum officers exercise that delegated discretion on a case-by-case
basis. Under the Board's decision in Matter of Pula, 19 I&N Dec. 467
(BIA 1987), and its progeny, ``an alien's manner of entry or attempted
entry is a proper and relevant discretionary factor'' and
``circumvention of orderly refugee procedures'' can be a ``serious
adverse factor'' against exercising discretion to grant asylum, id. at
473, but ``[t]he danger of persecution will outweigh all but the most
egregious adverse factors,'' Matter of Kasinga, 21 I&N Dec. 357, 367
(BIA 1996).

C. Establishing Bars to Asylum

The availability of asylum has long been qualified both by
statutory bars and by administrative discretion to create additional
bars. Those bars have developed over time in a back-and-forth process
between Congress and the Attorney General. The original asylum
provisions, as set out in the Refugee Act of 1980, Public Law 96-212,
simply directed the Attorney General to ``establish a procedure for an
alien physically present in the United States or at a land border or
port of entry, irrespective of such alien's status, to apply for
asylum, and the alien may be granted asylum in the discretion of the
Attorney General if the Attorney General determines that such alien is
a refugee'' within the meaning of the title. See 8 U.S.C. 1158(a)
(1982); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 427-29 (1987)
(describing the 1980 provisions).
In the 1980 implementing regulations, the Attorney General, in his
discretion, established several mandatory bars to granting asylum that
were modeled on the mandatory bars to eligibility for withholding of
deportation under the existing section 243(h) of the INA. See Refugee
and Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980) (``The
application will be denied if the alien does not come within the
definition of refugee under the Act, is firmly resettled in a third
country, or is within one of the undesirable groups described in
section 243(h) of the Act, e.g., having been convicted of a serious
crime, constitutes a danger to the United States.''). Those regulations
required denial of an asylum application if it was determined that (1)
the alien was ``not a refugee within the meaning of section
101(a)(42)'' of the INA, 8 U.S.C. 1101(a)(42); (2) the alien had been
``firmly resettled in a foreign country'' before arriving in the United
States; (3) the alien ``ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race,
religion, nationality, membership in a particular group, or political
opinion''; (4) the alien had ``been convicted by a final judgment of a
particularly serious crime'' and therefore constituted ``a danger to
the community of the United States''; (5) there were ``serious reasons
for considering that the alien ha[d] committed a serious non-political
crime outside the United States prior to the arrival of the alien in
the United States''; or (6) there were ``reasonable grounds for
regarding the alien as a danger to the security of the United States.''
See id. at 37394-95.
In 1990, the Attorney General substantially amended the asylum
regulations while retaining the mandatory bars for aliens who
persecuted others on account of a protected ground, were convicted of a
particularly serious crime in the United States, firmly resettled in
another country, or presented reasonable grounds to be regarded as a
danger to the security of the United States. See Asylum and Withholding
of Deportation Procedures, 55 FR 30674, 30683 (July 27, 1990); see also
Yang v. INS, 79 F.3d 932, 936-39 (9th Cir. 1996) (upholding firm-
resettlement bar); Komarenko, 35 F.3d at 436 (upholding particularly-
serious-crime bar). In the Immigration Act of 1990, Public Law 101-649,
Congress added an additional mandatory bar to applying for or being
granted asylum for ``[a]n[y] alien who has been convicted of an
aggravated felony.'' Public Law 101-649, sec. 515.

[[Page 55938]]

In IIRIRA and the Antiterrorism and Effective Death Penalty Act of
1996, Public Law 104-132, Congress amended the asylum provisions in
section 208 of the INA, 8 U.S.C. 1158. Among other amendments, Congress
created three exceptions to section 208(a)(1)'s provision that an alien
may apply for asylum, for (1) aliens who can be removed to a safe third
country pursuant to bilateral or multilateral agreement; (2) aliens who
failed to apply for asylum within one year of arriving in the United
States; and (3) aliens who have previously applied for asylum and had
the application denied. Public Law 104-208, div. C, sec. 604(a); see
INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C).
Congress also adopted six mandatory exceptions to the authority of
the Attorney General or Secretary to grant asylum that largely reflect
pre-existing bars set forth in the Attorney General's asylum
regulations. These exceptions cover (1) aliens who ``ordered, incited,
or otherwise participated'' in the persecution of others on account of
a protected ground; (2) aliens convicted of a ``particularly serious
crime''; (3) aliens who committed a ``serious nonpolitical crime
outside the United States'' before arriving in the United States; (4)
aliens who are a ``danger to the security of the United States''; (5)
aliens who are inadmissible or removable under a set of specified
grounds relating to terrorist activity; and (6) aliens who have
``firmly resettled in another country prior to arriving in the United
States.'' Public Law 104-208, div. C, sec. 604(a); see INA
208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi). Congress further
added that aggravated felonies, defined in 8 U.S.C. 1101(a)(43), would
be considered ``particularly serious crime[s].'' Public Law 104-208,
div. C, sec. 604(a); see INA 201(a)(43), 8 U.S.C. 1101(a)(43).
Although Congress enacted specific exceptions, that statutory list
is not exhaustive. Congress, in IIRIRA, expressly authorized the
Attorney General to expand upon two of those exceptions--the bars for
``particularly serious crimes'' and ``serious nonpolitical offenses.''
While Congress prescribed that all aggravated felonies constitute
particularly serious crimes, Congress further provided that the
Attorney General may ``designate by regulation offenses that will be
considered'' a ``particularly serious crime'' that ``constitutes a
danger to the community of the United States.'' INA 208(b)(2)(A)(ii),
(B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(ii). Courts and the Board have
long held that this grant of authority also authorizes the Board to
identify additional particularly serious crimes (beyond aggravated
felonies) through case-by-case adjudication. See, e.g., Ali v. Achim,
468 F.3d 462, 468-69 (7th Cir. 2006); Delgado v. Holder, 648 F.3d 1095,
1106 (9th Cir. 2011) (en banc). Congress likewise authorized the
Attorney General to designate by regulation offenses that constitute
``a serious nonpolitical crime outside the United States prior to the
arrival of the alien in the United States.'' INA 208(b)(2)(A)(iii),
(B)(ii), 8 U.S.C. 1158(b)(2)(A)(iii), (B)(ii). Although these
provisions continue to refer only to the Attorney General, the
Departments interpret these provisions to also apply to the Secretary
of Homeland Security by operation of the Homeland Security Act of 2002.
See 6 U.S.C. 552; 8 U.S.C. 1103(a)(1).
Congress further provided the Attorney General with the authority,
by regulation, to ``establish additional limitations and conditions,
consistent with [section 208 of the INA], under which an alien shall be
ineligible for asylum under paragraph (1).'' INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C). As the Tenth Circuit has recognized, ``the statute
clearly empowers'' the Attorney General to ``adopt[] further
limitations'' on asylum eligibility. R-S-C, 869 F.3d at 1187 & n.9. By
allowing the imposition by regulation of ``additional limitations and
conditions,'' the statute gives the Attorney General and the Secretary
broad authority in determining what the ``limitations and conditions''
should be. The additional limitations on eligibility must be
established ``by regulation,'' and must be ``consistent with'' the rest
of section 208 of the INA. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
Thus, the Attorney General in the past has invoked section
208(b)(2)(C) of the INA to limit eligibility for asylum based on a
``fundamental change in circumstances'' and on the ability of an
applicant to safely relocate internally within the alien's country of
nationality or of last habitual residence. See Asylum Procedures, 65 FR
76121, 76126 (Dec. 6, 2000). The courts have also viewed section
208(b)(2)(C) as conferring broad discretion, including to render aliens
ineligible for asylum based on fraud. See R-S-C, 869 F.3d at 1187;
Nijjar v. Holder, 689 F.3d 1077, 1082 (9th Cir. 2012) (noting that
fraud can be ``one of the `additional limitations . . . under which an
alien shall be ineligible for asylum' that the Attorney General is
authorized to establish by regulation'').
Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), also establishes
certain procedures for consideration of asylum applications. But
Congress specified that the Attorney General ``may provide by
regulation for any other conditions or limitations on the consideration
of an application for asylum,'' so long as those limitations are ``not
inconsistent with this chapter.'' INA 208(d)(5)(B), 8 U.S.C.
1158(d)(5)(B).
In sum, the current statutory framework leaves the Attorney General
(and, after the Homeland Security Act, the Secretary) significant
discretion to adopt additional bars to asylum eligibility. Beyond
providing discretion to further define particularly serious crimes and
serious nonpolitical offenses, Congress has provided the Attorney
General and Secretary with discretion to establish by regulation any
additional limitations or conditions on eligibility for asylum or on
the consideration of applications for asylum, so long as these
limitations are consistent with the asylum statute.

D. Other Forms of Protection

Aliens who are not eligible to apply for or be granted asylum, or
who are denied asylum on the basis of the Attorney General's or the
Secretary's discretion, may nonetheless qualify for protection from
removal under other provisions of the immigration laws. A defensive
application for asylum that is submitted by an alien in removal
proceedings is also deemed an application for statutory withholding of
removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See 8
CFR 208.30(e)(2)-(4), 1208.3(b), 1208.16(a). An immigration judge may
also consider an alien's eligibility for withholding and deferral of
removal under regulations issued pursuant to the authority of the
implementing legislation regarding Article 3 of the CAT. See Foreign
Affairs Reform and Restructuring Act of 1998, Public Law 105-277, div.
G, sec. 2242(b); 8 CFR 1208.3(b); see also 8 CFR 1208.16-1208.17.
These forms of protection bar an alien's removal to any country
where the alien would ``more likely than not'' face persecution or
torture, meaning that the alien would face a clear probability that his
or her life or freedom would be threatened on account of a protected
ground or a clear probability of torture. 8 CFR 1208.16(b)(2), (c)(2);
see Kouljinski v. Keisler, 505 F.3d 534, 544-45 (6th Cir. 2007);
Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005). Thus, if an
alien proves that it is more likely than not that the alien's life or
freedom would be threatened on account of a protected ground, but is
denied asylum for some other reason--for instance, because of a
statutory exception, an eligibility bar adopted by regulation, or a
discretionary denial of asylum--the alien may be entitled to

[[Page 55939]]

statutory withholding of removal if not otherwise barred for that form
of protection. INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 CFR 208.16,
1208.16; see also Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017)
(``[W]ithholding of removal has long been understood to be a mandatory
protection that must be given to certain qualifying aliens, while
asylum has never been so understood.''). Likewise, an alien who
establishes that he or she will more likely than not face torture in
the country of removal will qualify for CAT protection. See 8 CFR
208.16(c), 1208.16(c). But, unlike asylum, statutory withholding and
CAT protection do not: (1) Prohibit the Government from removing the
alien to a third country where the alien would not face the requisite
probability of persecution or torture; (2) create a path to lawful
permanent resident status and citizenship; or (3) afford the same
ancillary benefits (such as protection for derivative family members).
See R-S-C, 869 F.3d at 1180.

E. Implementation of Treaty Obligations

The framework described above is consistent with certain U.S.
obligations under the 1967 Protocol Relating to the Status of Refugees
(``Refugee Protocol''), which incorporates Articles 2 to 34 of the 1951
Convention Relating to the Status of Refugees (``Refugee Convention''),
as well as U.S. obligations under Article 3 of the CAT. Neither the
Refugee Protocol nor the CAT is self-executing in the United States.
See Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009) (`[T]he [Refugee]
Protocol is not self-executing.''); Auguste v. Ridge, 395 F.3d 123, 132
(3d Cir. 2005) (the CAT ``was not self-executing''). These treaties are
not directly enforceable in U.S. law, but some of the obligations they
contain have been implemented through domestic implementing
legislation. For example, the United States has implemented the non-
refoulement provisions of these treaties--i.e., provisions prohibiting
the return of an individual to a country where he or she would face
persecution or torture--through the withholding of removal provisions
at section 241(b)(3) of the INA and the CAT regulations, not through
the asylum provisions at section 208 of the INA. See Cardoza-Fonseca,
480 U.S. at 440-41; Foreign Affairs Reform and Restructuring Act of
1998, Public Law 105-277, div. G, sec. 2242(b); 8 CFR 208.16(c),
208.17-208.18; 1208.16(c), 1208.17-1208.18. Limitations on the
availability of asylum that do not affect the statutory withholding of
removal or protection under the CAT regulations are consistent with
these provisions. See R-S-C, 869 F.3d at 1188 & n.11; Cazun v. Att'y
Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017); Ramirez-Mejia v. Lynch,
813 F.3d 240, 241 (5th Cir. 2016).
Limitations on eligibility for asylum are also consistent with
Article 34 of the Refugee Convention, concerning assimilation of
refugees, as implemented by section 208 of the INA, 8 U.S.C. 1158.
Section 208 of the INA reflects that Article 34 is precatory and not
mandatory, and accordingly does not provide that all refugees shall
receive asylum. See Cardoza-Fonseca, 480 U.S. at 441; Garcia, 856 F.3d
at 42; Cazun, 856 F.3d at 257 & n. 16; Mejia v. Sessions, 866 F.3d 573,
588 (4th Cir. 2017); R-S-C, 869 F.3d at 1188; Ramirez-Mejia, 813 F.3d
at 241. As noted above, Congress has long recognized the precatory
nature of Article 34 by imposing various statutory exceptions and by
authorizing the creation of new bars to asylum eligibility through
regulation.
Courts have likewise rejected arguments that other provisions of
the Refugee Convention require every refugee to receive asylum. Courts
have held, in the context of upholding the bar on eligibility for
asylum in reinstatement proceedings under section 241(a)(5) of the INA,
8 U.S.C. 1231(a)(5), that limiting the ability to apply for asylum does
not constitute a prohibited ``penalty'' under Article 31(1) of the
Refugee Convention. Cazun, 856 F.3d at 257 & n.16; Mejia, 866 F.3d at
588. Courts have also rejected the argument that Article 28 of the
Refugee Convention, governing the issuance of international travel
documents for refugees ``lawfully staying'' in a country's territory,
mandates that every person who might qualify for statutory withholding
must also be granted asylum. Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at
1188.

IV. Regulatory Changes

A. Limitation on Eligibility for Asylum for Aliens Who Contravene a
Presidential Proclamation Under Section 212(f) or 215(a)(1) of the INA
Concerning the Southern Border

Pursuant to section 208(b)(2)(C) of the INA, 8 U.S.C.
1158(b)(2)(C), the Departments are revising 8 CFR 208.13(c) and 8 CFR
1208.13(c) to add a new mandatory bar on eligibility for asylum for
certain aliens who are subject to a presidential proclamation
suspending or imposing limitations on their entry into the United
States pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), or
section 215(a)(1) of the INA, 8 U.S.C. 1185(a)(1), and who enter the
United States in contravention of such a proclamation after the
effective date of this rule. The bar would be subject to several
further limitations: (1) The bar would apply only prospectively, to
aliens who enter the United States after the effective date of such a
proclamation; (2) the proclamation must concern entry at the southern
border; and (3) the bar on asylum eligibility would not apply if the
proclamation expressly disclaims affecting asylum eligibility for
aliens within its scope, or expressly provides for a waiver or
exception that entitles the alien to relief from the limitation on
entry imposed by the proclamation.
The President has both statutory and inherent constitutional
authority to suspend the entry of aliens into the United States when it
is in the national interest. See United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 542 (1950) (``The exclusion of aliens is a
fundamental act of sovereignty'' that derives from ``legislative
power'' and also ``is inherent in the executive power to control the
foreign affairs of the nation.''); see also Proposed Interdiction of
Haitian Flag Vessels, 5 Op. O.L.C. 242, 244-45 (1981) (``[T]he
sovereignty of the Nation, which is the basis of our ability to exclude
all aliens, is lodged in both political branches of the government,''
and even without congressional action, the President may ``act[ ] to
protect the United States from massive illegal immigration.'').
Congress, in the INA, has expressly vested the President with broad
authority to restrict the ability of aliens to enter the United States.
Section 212(f) states: ``Whenever the President finds that the entry of
any aliens or of any class of aliens into the United States would be
detrimental to the interests of the United States, he may by
proclamation, and for such period as he shall deem necessary, suspend
the entry of all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any restrictions he may
deem to be appropriate.'' 8 U.S.C. 1182(f). ``By its plain language, [8
U.S.C.] Sec. 1182(f) grants the President broad discretion to suspend
the entry of aliens into the United States,'' including the authority
``to impose additional limitations on entry beyond the grounds for
exclusion set forth in the INA.'' Trump v. Hawaii, 138 S. Ct. 2392,
2408-12 (2018). For instance, the Supreme Court considered it
``perfectly clear that 8 U.S.C. 1182(f) . . . grants the President
ample power to establish a naval blockade that would simply deny
illegal Haitian immigrants the ability to disembark on our shores,''
thereby preventing them from entering

[[Page 55940]]

the United States and applying for asylum. Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 187 (1993).
The President's broad authority under section 212(f) is buttressed
by section 215(a)(1), which states it shall be unlawful ``for any alien
to depart from or enter or attempt to depart from or enter the United
States except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President may
prescribe.'' 8 U.S.C. 1185(a)(1). The presidential orders that the
Supreme Court upheld in Sale were promulgated pursuant to both sections
212(f) and 215(a)(1)--see 509 U.S. at 172 & n.27; see also Exec. Order
12807 (May 24, 1992) (``Interdiction of Illegal Aliens''); Exec. Order
12324 (Sept. 29, 1981) (``Interdiction of Illegal Aliens'') (revoked
and replaced by Exec. Order 12807)--as was the proclamation upheld in
Trump v. Hawaii, see 138 S. Ct. at 2405. Other presidential orders have
solely cited section 215(a)(1) as authority. See, e.g., Exec. Order
12172 (Nov. 26, 1979) (``Delegation of Authority With Respect to Entry
of Certain Aliens Into the United States'') (invoking section 215(a)(1)
with respect to certain Iranian visa holders).
An alien whose entry is suspended or limited by a proclamation is
one whom the President has determined should not enter the United
States, or only should do so under certain conditions. Such an order
authorizes measures designed to prevent such aliens from arriving in
the United States as a result of the President's determination that it
would be against the national interest for them to do so. For example,
the proclamation and order that the Supreme Court upheld in Sale, Proc.
4865 (Sept. 29, 1981) (``High Seas Interdiction of Illegal Aliens'');
Exec. Order 12324, directed the Coast Guard to interdict the boats of
tens of thousands of migrants fleeing Haiti to prevent them from
reaching U.S. shores, where they could make claims for asylum. The
order further authorized the Coast Guard to intercept any vessel
believed to be transporting undocumented aliens to the United States,
``[t]o make inquiries of those on board, examine documents, and take
such actions as are necessary to carry out this order,'' and ``[t]o
return the vessel and its passengers to the country from which it came,
or to another country, when there is reason to believe that an offense
is being committed against the United States immigration laws.'' Exec.
Order 12807, sec. 2(c).
An alien whose entry is suspended or restricted under such a
proclamation, but who nonetheless reaches U.S. soil contrary to the
President's determination that the alien should not be in the United
States, would remain subject to various procedures under immigration
laws. For instance, an alien subject to a proclamation who nevertheless
entered the country in contravention of its terms generally would be
placed in expedited-removal proceedings under section 235 of the INA, 8
U.S.C. 1225, and those proceedings would allow the alien to raise any
claims for protection before being removed from the United States, if
appropriate. Furthermore, the asylum statute provides that ``[a]ny
alien who is physically present in the United States or who arrives in
the United States (whether or not at a designated port of arrival),''
and ``irrespective of such alien's status, may apply for asylum in
accordance with this section or, where applicable, [8 U.S.C.]
1225(b).'' INA 208(a)(1), 8 U.S.C. 1158(a)(1). Some past proclamations
have accordingly made clear that aliens subject to an entry bar may
still apply for asylum if they have nonetheless entered the United
States. See, e.g., Proc. 9645, sec. 6(e) (Sept. 24, 2017) (``Enhancing
Vetting Capabilities and Processes for Detecting Attempted Entry Into
the United States by Terrorists or Other Public-Safety Threats'')
(``Nothing in this proclamation shall be construed to limit the ability
of an individual to seek asylum, refugee status, withholding of
removal, or protection under the Convention Against Torture, consistent
with the laws of the United States.'').
As noted above, however, the asylum statute also authorizes the
Attorney General and Secretary ``by regulation'' to ``establish
additional limitations and conditions, consistent with [section 208 of
the INA], under which an alien shall be ineligible for asylum,'' INA
208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), and to set conditions or
limitations on the consideration of an application for asylum, INA
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). The Attorney General and the
Secretary have determined that this authority should be exercised to
render ineligible for a grant of asylum any alien who is subject to a
proclamation suspending or restricting entry along the southern border
with Mexico, but who nonetheless enters the United States after such a
proclamation goes into effect. Such an alien would have engaged in
actions that undermine a particularized determination in a proclamation
that the President judged as being required by the national interest:
That the alien should not enter the United States.
The basis for ineligibility in these circumstances would be the
Departments' conclusion that aliens who contravene such proclamations
should not be eligible for asylum. Such proclamations generally reflect
sensitive determinations regarding foreign relations and national
security that Congress recognized should be entrusted to the President.
See Trump v. Hawaii, 138 S. Ct. at 2411. Aliens who contravene such a
measure have not merely violated the immigration laws, but have also
undercut the efficacy of a measure adopted by the President based upon
his determination of the national interest in matters that could have
significant implications for the foreign affairs of the United States.
For instance, previous proclamations were directed solely at Haitian
migrants, nearly all of whom were already inadmissible by virtue of
other provisions of the INA, but the proclamation suspended entry and
authorized further measures to ensure that such migrants did not enter
the United States contrary to the President's determination. See, e.g.,
Proc. 4865; Exec. Order 12807.
In the case of the southern border, a proclamation that suspended
the entry of aliens who crossed between the ports of entry would
address a pressing national problem concerning the immigration system
and our foreign relations with neighboring countries. Even if most of
those aliens would already be inadmissible under our laws, the
proclamation would impose limitations on entry for the period of the
suspension against a particular class of aliens defined by the
President. That judgment would reflect a determination that certain
illegal entrants--namely, those crossing between the ports of entry on
the southern border during the duration of the proclamation--were a
source of particular concern to the national interest. Furthermore,
such a proclamation could authorize additional measures to prevent the
entry of such inadmissible aliens, again reflecting the national
concern with this subset of inadmissible aliens. The interim final rule
reflects the Departments' judgment that, under the extraordinary
circumstances presented here, aliens crossing the southern border in
contravention of such a proclamation should not be eligible for a grant
of asylum during the period of suspension or limitation on entry. The
result would be to channel to ports of entry aliens who seek to enter
the United States and assert an intention to apply for asylum or a fear
of persecution, and to provide for consideration of those statements
there.
Significantly, this bar to eligibility for a grant of asylum would
be limited in scope. This bar would apply only prospectively. This bar
would further

[[Page 55941]]

apply only to a proclamation concerning entry along the southern
border, because this interim rule reflects the need to facilitate
urgent action to address current conditions at that border. This bar
would not apply to any proclamation that expressly disclaimed an effect
on eligibility for asylum. And this bar would not affect an applicant
who is granted a waiver or is excepted from the suspension under the
relevant proclamation, or an alien who did not at any time enter the
United States after the effective date of such proclamation.
Aliens who enter in contravention of a proclamation will not,
however, overcome the eligibility bar merely because a proclamation has
subsequently ceased to have effect. The alien still would have entered
notwithstanding a proclamation at the time the alien entered the United
States, which would result in ineligibility for asylum (but not for
statutory withholding or for CAT protection). Retaining eligibility for
asylum for aliens who entered the United States in contravention of the
proclamation, but evaded detection until it had ceased, could encourage
aliens to take riskier measures to evade detection between ports of
entry, and would continue to stretch government resources dedicated to
apprehension efforts.
This restriction on eligibility to asylum is consistent with
section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). The regulation
establishes a condition on asylum eligibility, not on the ability to
apply for asylum. Compare INA 208(a), 8 U.S.C. 1158(a) (describing
conditions for applying for asylum), with INA 208(b), 8 U.S.C. 1158(b)
(identifying exceptions and bars to granting asylum). And, as applied
to a proclamation that suspends the entry of aliens who crossed between
the ports of entry at the southern border, the restriction would not
preclude an alien physically present in the United States from being
granted asylum if the alien arrives in the United States through any
border other than the southern land border with Mexico or at any time
other than during the pendency of a proclamation suspending or limiting
entry.

B. Screening Procedures in Expedited Removal for Aliens Subject to
Proclamations

The rule would also modify certain aspects of the process for
screening claims for protection asserted by aliens who have entered in
contravention of a proclamation and who are subject to expedited
removal under INA 235(b)(1), 8 U.S.C. 1225(b)(1). Under current
procedures, aliens who unlawfully enter the United States may avoid
being removed on an expedited basis by making a threshold showing of a
credible fear of persecution at a initial screening interview. At
present, those aliens are often released into the interior of the
United States pending adjudication of such claims by an immigration
court in section 240 proceedings especially if those aliens travel as
family units. Once an alien is released, adjudications can take months
or years to complete because of the increasing volume of claims and the
need to expedite cases in which aliens have been detained. The
Departments expect that a substantial proportion of aliens subject to
an entry proclamation concerning the southern border would be subject
to expedited removal, since approximately 234,534 aliens in FY 2018 who
presented at a port of entry or were apprehended at the border were
referred to expedited-removal proceedings.\1\ The procedural changes
within expedited removal would be confined to aliens who are ineligible
for asylum because they are subject to a regulatory bar for
contravening an entry proclamation.
---------------------------------------------------------------------------

\1\ As noted below, in FY 2018, approximately 171,511 aliens
entered illegally between ports of entry, were apprehended by CBP,
and were placed in expedited removal. Approximately 59,921
inadmissible aliens arrived at ports of entry and were placed in
expedited removal. Furthermore, ICE arrested some 3,102 aliens and
placed them in expedited removal.
---------------------------------------------------------------------------

1. Under existing law, expedited-removal procedures--streamlined
procedures for expeditiously reviewing claims and removing certain
aliens--apply to those individuals who arrive at a port of entry or
those who have entered illegally and are encountered by an immigration
officer within 100 miles of the border and within 14 days of entering.
See INA 235(b), 8 U.S.C. 1225(b); Designating Aliens For Expedited
Removal, 69 FR 48877, 48880 (Aug. 11, 2004). To be subject to expedited
removal, an alien must also be inadmissible under INA 212(a)(6)(C) or
(a)(7), 8 U.S.C. 1182(a)(6)(C) or (a)(7), meaning that the alien has
either tried to procure documentation through misrepresentation or
lacks such documentation altogether. Thus, an alien encountered in the
interior of the United States who entered in contravention of a
proclamation and who is not otherwise amenable to expedited removal
would be placed in proceedings under section 240 of the INA. The
interim rule does not invite comment on existing regulations
implementing the present scope of expedited removal.
Section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), prescribes
procedures in the expedited-removal context for screening an alien's
eligibility for asylum. When these provisions were being debated in
1996, legislators expressed particular concern that ``[e]xisting
procedures to deny entry to and to remove illegal aliens from the
United States are cumbersome and duplicative,'' and that ``[t]he asylum
system has been abused by those who seek to use it as a means of
`backdoor' immigration.'' See H.R. Rep. No. 104-469, pt. 1, at 107
(1996). Members of Congress accordingly described the purpose of
expedited removal and related procedures as ``streamlin[ing] rules and
procedures in the Immigration and Nationality Act to make it easier to
deny admission to inadmissible aliens and easier to remove deportable
aliens from the United States.'' Id. at 157; see Am. Immigration
Lawyers ***'n v. Reno, 18 F. Supp. 2d 38, 41 (D.D.C. 1998), aff'd, 199
F.3d 1352 (DC Cir. 2000) (rejecting several constitutional challenges
to IIRIRA and describing the expedited-removal process as a ``summary
removal process for adjudicating the claims of aliens who arrive in the
United States without proper documentation'').
Congress thus provided that aliens ``inadmissible under [8 U.S.C.]
1182(a)(6)(C) or 1182(a)(7)'' shall be ``removed from the United States
without further hearing or review unless the alien indicates either an
intention to apply for asylum under [8 U.S.C. 1158] or a fear of
persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); see INA
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii) (such aliens shall be
referred ``for an interview by an asylum officer''). On its face, the
statute refers only to proceedings to establish eligibility for an
affirmative grant of asylum and its attendant benefits, not to
statutory withholding of removal or CAT protection against removal to a
particular country.
An alien referred for a credible-fear interview must demonstrate a
``credible fear,'' defined as a ``significant possibility, taking into
account the credibility of the statements made by the alien in support
of the alien's claim and such other facts as are known to the officer,
that the alien could establish eligibility for asylum under [8 U.S.C.
1158].'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). According to
the House report, ``[t]he credible-fear standard [wa]s designed to weed
out non-meritorious cases so that only applicants with a likelihood of
success will proceed to the regular asylum process.'' H.R. Rep. No.
104-69, at 158.

[[Page 55942]]

If the asylum officer determines that the alien lacks a credible
fear, then the alien may request review by an immigration judge. INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). If the
immigration judge concurs with the asylum officer's negative credible-
fear determination, then the alien shall be removed from the United
States without further review by either the Board or the courts. INA
235(b)(1)(B)(iii)(I), (b)(1)(C), 8 U.S.C. 1225(b)(1)(B)(iii)(I),
(b)(1)(C); INA 242(a)(2)(A)(iii), (e)(5), 8 U.S.C. 1252(a)(2)(A)(iii),
(e)(5); Pena v. Lynch, 815 F.3d 452, 457 (9th Cir. 2016). By contrast,
if the asylum officer or immigration judge determines that the alien
has a credible fear--i.e., ``a significant possibility . . . that the
alien could establish eligibility for asylum,'' INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v)--then the alien, under current regulations, is
placed in section 240 proceedings for a full hearing before an
immigration judge, with appeal available to the Board and review in the
federal courts of appeals, see INA 235(b)(1)(B)(ii), (b)(2)(A), 8
U.S.C. 1225(b)(1)(B)(ii), (b)(2)(A); INA 242(a), 8 U.S.C. 1252(a); 8
CFR 208.30(e)(5), 1003.1. The interim rule does not invite comment on
existing regulations implementing this framework.
By contrast, section 235 of the INA is silent regarding procedures
for the granting of statutory withholding of removal and CAT
protection; indeed, section 235 predates the legislation directing
implementation of U.S. obligations under Article 3 of the CAT. See
Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-
277, sec. 2242(b) (requiring implementation of CAT); IIRIRA, Public Law
104-208, sec. 302 (revising section 235 of the INA to include
procedures for dealing with inadmissible aliens who intend to apply for
asylum). The legal standards for ultimately granting asylum on the
merits versus statutory withholding or CAT protection are also
different. Asylum requires an applicant to ultimately establish a
``well-founded fear'' of persecution, which has been interpreted to
mean a ``reasonable possibility'' of persecution--a ``more generous''
standard than the ``clear probability'' of persecution or torture
standard that applies to statutory withholding or CAT protection. See
INS v. Stevic, 467 U.S. 407, 425, 429-30 (1984); Santosa v. Mukasey,
528 F.3d 88, 92 & n.1 (1st Cir. 2008); compare 8 CFR
1208.13(b)(2)(i)(B) with 8 CFR 1208.16(b)(2), (c)(2). As a result,
applicants who establish eligibility for asylum are not necessarily
eligible for statutory withholding or CAT protection.
Current regulations instruct USCIS adjudicators and immigration
judges to treat an alien's request for asylum in expedited-removal
proceedings under section 1225(b) as a request for statutory
withholding and CAT protection as well. See 8 CFR 208.3(b),
208.30(e)(2)-(4), 1208.3(b), 1208.16(a). In the context of expedited-
removal proceedings, ``credible fear of persecution'' is defined to
mean a ``significant possibility'' that the alien ``could establish
eligibility for asylum under section 1158,'' not CAT or statutory
withholding. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
Regulations nevertheless have generally provided that aliens in
expedited removal should be subject to the same process for considering
statutory withholding of removal claims under INA 241(b)(3), 8 U.S.C.
1231(b)(3), and claims for protection under the CAT, as they are for
asylum claims. See 8 CFR 208.30(e)(2)-(4).
Thus, when the Immigration and Naturalization Service provided for
claims for statutory withholding of removal and CAT protection to be
considered in the same expedited-removal proceedings as asylum, the
result was that if an alien showed that there was a significant
possibility of establishing eligibility for asylum and was therefore
referred for removal proceedings under section 240 of the INA, any
potential statutory withholding and CAT claims the alien might have
were referred as well. This was done on the assumption that that it
would not ``disrupt[ ] the streamlined process established by Congress
to circumvent meritless claims.'' Regulations Concerning the Convention
Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999). But while the INA
authorizes the Attorney General and Secretary to provide for
consideration of statutory withholding and CAT claims together with
asylum claims or other matters that may be considered in removal
proceedings, the INA does not require that approach, see Foti v. INS,
375 U.S. 217, 229-30 & n.16 (1963), or that they be considered in the
same way.
Since 1999, regulations also have provided for a distinct
``reasonable fear'' screening process for certain aliens who are
categorically ineligible for asylum and can thus make claims only for
statutory withholding or CAT protections. See 8 CFR 208.31.
Specifically, if an alien is subject to having a previous order of
removal reinstated or is a non-permanent resident alien subject to an
administrative order of removal resulting from an aggravated felony
conviction, then he is categorically ineligible for asylum. See id.
Sec. 208.31(a), (e). Such an alien can be placed in withholding-only
proceedings to adjudicate his statutory withholding or CAT claims, but
only if he first establishes a ``reasonable fear'' of persecution or
torture through a screening process that tracks the credible-fear
process. See id. Sec. 208.31(c), (e). Reasonable fear is defined by
regulation to mean a ``reasonable possibility that [the alien] would be
persecuted on account of his or her race, religion, nationality,
membership in a particular social group or political opinion, or a
reasonable possibility that he or she would be tortured in the country
of removal.'' Id. Sec. 208.31(c). ``This . . . screening process is
modeled on the credible-fear screening process, but requires the alien
to meet a higher screening standard.'' Regulations Concerning the
Convention Against Torture, 64 FR at 8485; see also Garcia v. Johnson,
No. 14-CV-01775, 2014 WL 6657591, at *2 (N.D. Cal. Nov. 21, 2014)
(describing the aim of the regulations as providing ``fair and
efficient procedures'' in reasonable-fear screening that would comport
with U.S. international obligations).
Significantly, when establishing the reasonable-fear screening
process, DOJ explained that the two affected categories of aliens
should be screened based on the higher reasonable-fear standard
because, ``[u]nlike the broad class of arriving aliens who are subject
to expedited removal, these two classes of aliens are ineligible for
asylum,'' and may be entitled only to statutory withholding of removal
or CAT protection. Regulations Concerning the Convention Against
Torture, 64 FR at 8485. ``Because the standard for showing entitlement
to these forms of protection (a probability of persecution or torture)
is significantly higher than the standard for asylum (a well-founded
fear of persecution), the screening standard adopted for initial
consideration of withholding and deferral requests in these contexts is
also higher.'' Id.
2. Drawing on the established framework for considering whether to
grant withholding of removal or CAT protection in the reasonable-fear
context, this interim rule establishes a bifurcated screening process
for aliens subject to expedited removal who are ineligible for asylum
by virtue of entering in contravention of a proclamation, but who
express a fear of return or seek statutory withholding or CAT
protection. The Attorney General and Secretary have broad authority to

[[Page 55943]]

implement the immigration laws, see INA 103, 8 U.S.C. 1103, including
by establishing regulations, see INA 103, 8 U.S.C. 1103(a)(3), and to
regulate ``conditions or limitations on the consideration of an
application for asylum,'' id. 1158(d)(5)(B). Furthermore, the Secretary
has the authority--in her ``sole and unreviewable discretion,'' the
exercise of which may be ``modified at any time''--to designate
additional categories of aliens that will be subject to expedited-
removal procedures, so long as the designated aliens have not been
admitted or paroled nor continuously present in the United States for
two years. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii). The
Departments have frequently invoked these authorities to establish or
modify procedures affecting aliens in expedited-removal proceedings, as
well as to adjust the categories of aliens subject to particular
procedures within the expedited-removal framework.\2\
---------------------------------------------------------------------------

\2\ See, e.g., Eliminating Exception to Expedited Removal
Authority for Cuban Nationals Arriving by Air, 82 FR 4769 (Jan. 17,
2017); Designating Aliens For Expedited Removal, 69 FR 48877;
Implementation of the Agreement Between the Government of the United
States of America and the Government of Canada Regarding Asylum
Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
10620 (March 8, 2004); New Rules Regarding Procedures for Asylum and
Withholding of Removal, 63 FR 31945 (June 11, 1998); Asylum
Procedures, 65 FR 76121; Regulations Concerning the Convention
Against Torture, 64 FR 8478 (Feb. 19, 1999).
---------------------------------------------------------------------------

This rule does not change the credible-fear standard for asylum
claims, although the regulation would expand the scope of the inquiry
in the process. An alien who is subject to a relevant proclamation and
nonetheless has entered the United States after the effective date of
such a proclamation in contravention of that proclamation would be
ineligible for asylum and would thus not be able to establish a
``significant possibility . . . [of] eligibility for asylum under
section 1158.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). As
current USCIS guidance explains, under the credible-fear standard,
``[a] claim that has no possibility, or only a minimal or mere
possibility, of success, would not meet the `significant possibility'
standard.'' USCIS, Office of Refugee, Asylum, & Int'l Operations,
Asylum Div., Asylum Officer Basic Training Course, Lesson Plan on
Credible Fear at 15 (Feb. 13, 2017). Consistent with section
235(b)(1)(B)(iii)(III) of the INA, the alien could still obtain review
from an immigration judge regarding whether the asylum officer
correctly determined that the alien was subject to a limitation or
suspension on entry imposed by a proclamation. Further, consistent with
section 235(b)(1)(B) of the INA, if the immigration judge reversed the
asylum officer's determination, the alien could assert the asylum claim
in section 240 proceedings.
Aliens determined to be ineligible for asylum by virtue of
contravening a proclamation, however, would still be screened, but in a
manner that reflects that their only viable claims would be for
statutory withholding or CAT protection pursuant to 8 CFR 208.30(e)(2)-
(4) and 1208.16(a). After determining the alien's ineligibility for
asylum under the credible-fear standard, the asylum officer would apply
the long-established reasonable-fear standard to assess whether further
proceedings on a possible statutory withholding or CAT protection claim
are warranted. If the asylum officer determined that the alien had not
established the requisite reasonable fear, the alien then could seek
review of that decision from an immigration judge (just as the alien
may under existing 8 CFR 208.30 and 208.31), and would be subject to
removal only if the immigration judge agreed with the negative
reasonable-fear finding. Conversely, if either the asylum officer or
the immigration judge determined that the alien cleared the reasonable-
fear threshold, the alien would be put in section 240 proceedings, just
like aliens who receive a positive credible-fear determination for
asylum. Employing a reasonable-fear standard in this context, for this
category of ineligible aliens, would be consistent with the Department
of Justice's longstanding rationale that ``aliens ineligible for
asylum,'' who could only be granted statutory withholding of removal or
CAT protection, should be subject to a different screening standard
that would correspond to the higher bar for actually obtaining these
forms of protection. See Regulations Concerning the Convention Against
Torture, 64 FR at 8485 (``Because the standard for showing entitlement
to these forms of protection . . . is significantly higher than the
standard for asylum . . . the screening standard adopted for initial
consideration of withholding and deferral requests in these contexts is
also higher.'').
The screening process established by the interim rule will
accordingly proceed as follows. For an alien subject to expedited
removal, DHS will ascertain whether the alien seeks protection,
consistent with INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). All
aliens seeking asylum, statutory withholding of removal, or CAT
protection will continue to go before an asylum officer for screening,
consistent with INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The asylum
officer will ask threshold questions to elicit whether an alien is
ineligible for a grant of asylum pursuant to a proclamation entry bar.
If there is a significant possibility that the alien is not subject to
the eligibility bar (and the alien otherwise demonstrates sufficient
facts pertaining to asylum eligibility), then the alien will have
established a credible fear.
If, however, an alien lacks a significant possibility of
eligibility for asylum because of the proclamation bar, then the asylum
officer will make a negative credible-fear finding. The asylum officer
will then apply the reasonable-fear standard to assess the alien's
claims for statutory withholding of removal or CAT protection.
An alien subject to the proclamation-based asylum bar who clears
the reasonable-fear screening standard will be placed in section 240
proceedings, just as an alien who clears the credible-fear standard
will be. In those proceedings, the alien will also have an opportunity
to raise whether the alien was correctly identified as subject to the
proclamation ineligibility bar to asylum, as well as other claims. If
an immigration judge determines that the alien was incorrectly
identified as subject to the proclamation, the alien will be able to
apply for asylum. Such aliens can appeal the immigration judge's
decision in these proceedings to the BIA and then seek review from a
federal court of appeals.
Conversely, an alien who is found to be subject to the proclamation
asylum bar and who does not clear the reasonable-fear screening
standard can obtain review of both of those determinations before an
immigration judge, just as immigration judges currently review negative
credible-fear and reasonable-fear determinations. If the immigration
judge finds that either determination was incorrect, then the alien
will be placed into section 240 proceedings. In reviewing the
determinations, the immigration judge will decide de novo whether the
alien is subject to the proclamation asylum bar. If, however, the
immigration judge affirms both determinations, then the alien will be
subject to removal without further appeal, consistent with the existing
process under section 235 of the INA. In short, aliens subject to the
proclamation eligibility bar to asylum will be processed through
existing procedures by DHS and EOIR in accordance with 8 CFR 208.30 and
1208.30, but will be subject to the

[[Page 55944]]

reasonable-fear standard as part of those procedures with respect to
their statutory withholding and CAT protection claims.\3\
---------------------------------------------------------------------------

\3\ Nothing about this screening process or in this interim rule
would alter the existing procedures for processing alien stowaways
under the INA and associated regulations. An alien stowaway is
unlikely to be subject to 8 CFR 208.13(c)(3) and 1208.13(c)(3)
unless a proclamation specifically applies to stowaways or to entry
by vessels or aircraft. INA 101(a)(49), 8 U.S.C. 1101(a)(49).
Moreover, an alien stowaway is barred from being placed into section
240 proceedings regardless of the level of fear of persecution he
establishes. INA 235(a)(2), 8 U.S.C. 1225(a)(2). Similarly, despite
the incorporation of a reasonable-fear standard into the evaluation
of certain cases under credible-fear procedures, nothing about this
screening process or in this interim rule implicates existing
reasonable-fear procedures in 8 CFR 208.31 and 1208.31.
---------------------------------------------------------------------------

2. The above process will not affect the process in 8 CFR
208.30(e)(5) for certain existing statutory bars to asylum eligibility.
Under that regulatory provision, many aliens who appear to fall within
an existing statutory bar, and thus appear to be ineligible for asylum,
can nonetheless be placed in section 240 proceedings if they are
otherwise eligible for asylum and obtain immigration judge review of
their asylum claims, followed by further review before the BIA and the
courts of appeals. Specifically, with the exceptions of stowaways and
aliens entering from Canada at a port of entry (who are generally
ineligible to apply for asylum by virtue of a safe-third-country
agreement), 8 CFR 208.30(e)(5) provides that ``if an alien is able to
establish a credible fear of persecution or torture but appears to be
subject to one or more of the mandatory bars to applying for, or being
granted, asylum contained in section 208(a)(2) and 208(b)(2) of the
[INA] . . . [DHS] shall nonetheless place the alien in proceedings
under section 240 of the [INA] for full consideration of the alien's
claim.''
The language providing that the agency ``shall nonetheless place
the alien in proceedings under section 240 of the [INA]'' was
promulgated in 2000 in a final rule implementing asylum procedures
after the 1996 enactment of IIRIRA. See Asylum Procedures, 65 FR at
76137. The explanation for this change was that some commenters
suggested that aliens should be referred to section 240 proceedings
``regardless of any apparent statutory ineligibility under section
208(a)(2) or 208(b)(2)(A) of the [INA]. The Department has adopted that
suggestion and has so amended the regulation.'' Id. at 76129.
This rule will avoid a textual ambiguity in 8 CFR 208.30(e)(5),
which is unclear regarding its scope, by adding a new sentence
clarifying the process applicable to an alien barred under a covered
proclamation. See 8 CFR 208.30(e)(5) (referring to an alien who
``appears to be subject to one or more of the mandatory bars to . . .
asylum contained in section 208(a)(2) and 208(b)(2) of the [INA]''). By
using a definite article (``the mandatory bars to . . . asylum'') and
the phrase ``contained in,'' 8 CFR 208.30(e)(5) may refer only to
aliens who are subject to the defined mandatory bars ``contained in''
specific parts of section 208 of the INA, such as the bar for
aggravated felons, INA 208(b)(2)(B)(i), 8 U.S.C. 1558(b)(2)(B)(i), or
the bar for aliens reasonably believed to be a danger to U.S. security,
INA 208(b)(2)(A)(iv), 8 U.S.C. 1158(b)(2)(A)(iv). It is thus not clear
whether an alien subject to a further limitation or condition on asylum
eligibility adopted pursuant to section 208(b)(2)(C) of the INA would
also be subject to the procedures set forth in 8 CFR 208.30(e)(5).
Notably, the preamble to the final rule adopting 8 CFR 208.30(e)(5)
indicated that it was intended to apply to ``any apparent statutory
ineligibility under section 208(a)(2) or 208(b)(2)(A) of the [INA],''
and did not address future regulatory ineligibility under section
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Asylum Procedures, 65
FR at 76129. This rule does not resolve that question, however, but
instead establishes an express regulatory provision dealing
specifically with aliens subject to a limitation under section 212(f)
or 215(a)(1) of the INA.

C. Anticipated Effects of the Rule

1. The interim rule aims to address an urgent situation at the
southern border. In recent years, there has been a significant increase
in the number and percentage of aliens who seek admission or unlawfully
enter the United States and then assert an intent to apply for asylum
or a fear of persecution. The vast majority of such assertions for
protection occur in the expedited-removal context, and the rates at
which such aliens receive a positive credible-fear determination have
increased in the last five years. Having passed through the credible-
fear screening process, many of these aliens are released into the
interior to await further section 240 removal proceedings. But many
aliens who pass through the credible-fear screening thereafter do not
pursue their claims for asylum. Moreover, a substantial number fail to
appear for a section 240 proceeding. And even aliens who passed through
credible-fear screening and apply for asylum are granted it at a low
rate.
Recent numbers illustrate the scope and scale of the problems
caused by the disconnect between the number of aliens asserting a
credible fear and the number of aliens who ultimately are deemed
eligible for, and granted, asylum. In FY 2018, DHS identified some
612,183 inadmissible aliens who entered the United States, of whom
404,142 entered unlawfully between ports of entry and were apprehended
by CBP, and 208,041 presented themselves at ports of entry. Those
numbers exclude the inadmissible aliens who crossed but evaded
detection, and interior enforcement operations conducted by U.S.
Immigration and Customs Enforcement (``ICE''). The vast majority of
those inadmissible aliens--521,090--crossed the southern border.
Approximately 98% (396,579) of all aliens apprehended after illegally
crossing between ports of entry made their crossings at the southern
border, and 76% of all encounters at the southern border reflect such
apprehensions. By contrast, 124,511 inadmissible aliens presented
themselves at ports of entry along the southern border, representing
60% of all port traffic for inadmissible aliens and 24% of encounters
with inadmissible aliens at the southern border.
Nationwide, DHS has preliminarily calculated that throughout FY
2018, approximately 234,534 aliens who presented at a port of entry or
were apprehended at the border were referred to expedited-removal
proceedings. Of that total, approximately 171,511 aliens were
apprehended crossing between ports of entry; approximately 59,921 were
inadmissible aliens who presented at ports of entry; and approximately
3,102 were arrested by ICE and referred to expedited removal.\4\ The
total number of aliens of all nationalities referred to expedited-
removal proceedings has significantly increased over the last decade,
from 161,516 aliens in 2008 to approximately 234,534 in FY 2018 (an
overall increase of about 45%). Of those totals, the number of aliens
from the Northern Triangle referred to expedited-removal proceedings
has increased from 29,206 in FY 2008 (18% of the total

[[Page 55945]]

161,516 aliens referred) to approximately 103,752 in FY 2018 (44% of
the total approximately 234,534 aliens referred, an increase of over
300%). In FY 2018, nationals of the Northern Triangle represented
approximately 103,752 (44%) of the aliens referred to expedited-removal
proceedings; approximately 91,235 (39%) were Mexican; and nationals
from other countries made up the remaining balance (17%). As of the
date of this rule, final expedited-removal statistics for FY 2018
specific to the southern border are not available. But the Departments'
experience with immigration enforcement has demonstrated that the vast
majority of expedited-removal actions have also occurred along the
southern border.
---------------------------------------------------------------------------

\4\ All references to the number of aliens subject to expedited
removal in FY 2018 reflect data for the first three quarters of the
year and projections for the fourth quarter of FY 2018. It is
unclear whether the ICE arrests reflect additional numbers of aliens
processed at ports of entry. Another approximately 130,211 aliens
were subject to reinstatement, meaning that the alien had previously
been removed and then unlawfully entered the United States again.
The vast majority of reinstatements involved Mexican nationals.
Aliens subject to reinstatement who express a fear of persecution or
torture receive reasonable-fear determinations under 8 CFR 208.31.
---------------------------------------------------------------------------

Once in expedited removal, some 97,192 (approximately 41% of all
aliens in expedited removal) were referred for a credible-fear
interview with an asylum officer, either because they expressed a fear
of persecution or torture or an intent to apply for protection. Of that
number, 6,867 (7%) were Mexican nationals, 25,673 (26%) were Honduran,
13,433 (14%) were Salvadoran, 24,456 (25%) were Guatemalan, and other
nationalities made up the remaining 28% (the largest proportion of
which were 7,761 Indian nationals).
In other words: Approximately 61% of aliens from Northern Triangle
countries placed in expedited removal expressed the intent to apply for
asylum or a fear of persecution and triggered credible-fear proceedings
in FY 2018 (approximately 69% of Hondurans, 79% of Salvadorans, and 49%
of Guatemalans). These aliens represented 65% of all credible-fear
referrals in FY 2018. By contrast, only 8% of aliens from Mexico
trigger credible-fear proceedings when they are placed in expedited
removal, and Mexicans represented 7% of all credible-fear referrals.
Other nationalities compose the remaining 26,763 (28%) referred for
credible-fear interviews.
Once these 97,192 aliens were interviewed by an asylum officer,
83,862 cases were decided on the merits (asylum officers closed the
others).\5\ Those asylum officers found a credible fear in 89% (74,574)
of decided cases--meaning that almost all of those aliens' cases were
referred on for further immigration proceedings under section 240, and
many of the aliens were released into the interior while awaiting those
proceedings.\6\ As noted, nationals of Northern Triangle countries
represent the bulk of credible-fear referrals (65%, or 63,562 cases
where the alien expressed an intent to apply for asylum or asserted a
fear). In cases where asylum officers decided whether nationals of
these countries had a credible fear, they received a positive credible-
fear finding 88% of the time.\7\ Moreover, when aliens from those
countries sought review of negative findings by an immigration judge,
they obtained reversals approximately 18% of the time, resulting in
some 47,507 cases in which nationals of Northern Triangle countries
received positive credible-fear determinations.\8\ In other words:
Aliens from Northern Triangle countries ultimately received a positive
credible-fear determination 89% of the time. Some 6,867 Mexican
nationals were interviewed; asylum officers gave them a positive
credible-fear determination in 81% of decided cases (4,261), and
immigration judges reversed an additional 91 negative credible-fear
determinations, resulting in some 4,352 cases (83% of cases decided on
the merits) in which Mexican nationals were referred to section 240
proceedings after receiving a positive credible-fear determination.
---------------------------------------------------------------------------

\5\ DHS sometimes calculates credible-fear grant rates as a
proportion of all cases (positive, negative, and closed cases).
Because this rule concerns the merits of the screening process and
closed cases are not affected by that process, this preamble
discusses the proportions of determinations on the merits when
describing the credible-fear screening process. This preamble does,
however, account for the fact that some proportion of closed cases
are also sent to section 240 proceedings when discussing the number
of cases that immigration judges completed involving aliens referred
for a credible-fear interview while in expedited-removal
proceedings.
\6\ Stowaways are the only category of aliens who would receive
a positive credible-fear determination and go to asylum-only
proceedings, as opposed to section 240 proceedings, but the number
of stowaways is very small. Between FY 2013 and FY 2017, an average
of roughly 300 aliens per year were placed in asylum-only
proceedings, and that number includes not only stowaways but all
classes of aliens subject to asylum-only proceedings. 8 CFR
1208.2(c)(1) (describing 10 categories of aliens, including
stowaways found to have a credible fear, who are subject to asylum-
only proceedings).
\7\ Asylum officers decided 53,205 of these cases on the merits
and closed the remaining 10,357 (but sent many of the latter to
section 240 proceedings). Specifically, 25,673 Honduran nationals
were interviewed; 21,476 of those resulted in a positive screening
on the merits, 2,436 received a negative finding, and 1,761 were
closed--meaning that 90% of all Honduran cases involving a merits
determination resulted in a positive finding, and 10% were denied.
Some 13,433 Salvadoran nationals were interviewed; 11,034 of those
resulted in a positive screening on the merits 1,717 were denied,
and 682 were closed--meaning that 86% of all Salvadoran cases
involving a merits determination resulted in a positive finding, and
14% were denied. Some 24,456 Guatemalan nationals were interviewed;
14,183 of those resulted in a positive screening on the merits,
2,359 were denied, and 7,914 were closed--meaning that 86% of all
Guatemalan cases involving a merits determination resulted in a
positive finding, and 14% were denied. Again, the percentages
exclude closed cases so as to describe how asylum officers make
decisions on the merits.
\8\ Immigration judges in 2018 reversed 18% (288) of negative
credible-fear determinations involving Hondurans, 19% (241) of
negative credible-fear determinations involving Salvadorans, and 17%
(285) of negative credible-fear determinations involving
Guatemalans.
---------------------------------------------------------------------------

These figures have enormous consequences for the asylum system writ
large. Asylum officers and immigration judges devote significant
resources to these screening interviews, which the INA requires to
happen within a fixed statutory timeframe. These aliens must also be
detained during the pendency of expedited-removal proceedings. See INA
235(b), 8 U.S.C. 1225(b); Jennings v. Rodriguez, 138 S. Ct. 830, 834
(2018). And assertions of credible fear in expedited removal have
rapidly grown in the last decade--especially in the last five years. In
FY 2008, for example, fewer than 5,000 aliens were in expedited removal
(5%) and were thus referred for a credible-fear interview. In FY 2014,
51,001 referrals occurred (representing 21% of aliens in expedited
removal). The credible-fear referral numbers today reflect a 190%
increase from FY 2014 and a nearly 2000% increase from FY 2008.
Furthermore, the percentage of cases in which asylum officers found
that aliens had established a credible fear--leading to the aliens
being placed in section 240 removal proceedings--has also increased in
recent years. In FY 2008, asylum officers found a credible fear in
about 3,200 (or 77%) of all cases. In FY 2014, asylum officers found a
credible fear in about 35,000 (or 80%) of all cases in which they made
a determination. And in FY 2018, asylum officers found a credible fear
in nearly 89% of all such cases.
Once aliens are referred for section 240 proceedings, their cases
may take months or years to adjudicate due to backlogs in the system.
As of November 2, 2018, there were approximately 203,569 total cases
pending in the immigration courts that originated with a credible-fear
referral--or 26% of the total backlog of 791,821 removal cases. Of that
number, 136,554 involved nationals of Northern Triangle countries
(39,940 cases involving Hondurans; 59,702 involving Salvadoran
nationals; 36,912 involving Guatemalan nationals). Another 10,736 cases
involved Mexican nationals.
In FY 2018, immigration judges completed 34,158 total cases that
originated with a credible-fear referral.\9\

[[Page 55946]]

Those aliens were likely referred for credible-fear screening between
2015 and 2018; the vast majority of these cases arose from positive
credible-fear determinations as opposed to the subset of cases that
were closed in expedited removal and referred for section 240
proceedings. In a significant proportion of these cases, the aliens did
not appear for section 240 proceedings or did not file an application
for asylum in connection with those proceedings. In FY 2018, of the
34,158 completions that originated with a credible-fear referral,
24,361 (71%) were completed by an immigration judge with the issuance
of an order of removal. Of those completed cases, 10,534 involved in
absentia removal orders, meaning that in approximately 31% of all
initial completions in FY 2018 that originated from a credible-fear
referral, the alien failed to appear at a hearing. Moreover, of those
10,534 cases, there were 1,981 cases where an asylum application was
filed, meaning 8,553 did not file an asylum application and failed to
appear at a hearing. Further, 40% of all initial completions
originating with a credible-fear referral (or 13,595 cases, including
the 8,553 aliens just discussed) were completed in FY 2018 without an
alien filing an application for asylum. In short, in nearly half of the
cases completed by an immigration judge in FY 2018 involving aliens who
passed through a credible-fear referral, the alien failed to appear at
a hearing or failed to file an asylum application.
---------------------------------------------------------------------------

\9\ All descriptions of case outcomes before immigration judges
reflect initial case completions by an immigration judge during the
fiscal year unless otherwise noted. All references to applications
for asylum generally involve applications for asylum, as opposed to
some other form of protection, but EOIR statistics do not
distinguish between, for instance, the filing of an application for
asylum or the filing of an application for statutory withholding. As
noted, an application for asylum is also deemed an application for
other forms of protection, and whether an application will be for
asylum or only for some other form of protection is often a post-
filing determination made by the immigration judge (for instance,
because the one-year filing bar for asylum applies).
---------------------------------------------------------------------------

Those figures are consistent with trends from FY 2008 through FY
2018, during which time DHS pursued some 354,356 cases in the
immigration courts that involved aliens who had gone through a
credible-fear review (i.e., the aliens received a positive credible-
fear determination or their closed case was referred for further
proceedings). During this period, however, only about 53% (189,127) of
those aliens filed an asylum application, despite the fact that they
were placed into further immigration proceedings under section 240
because they alleged a fear during expedited-removal proceedings.
Even among those aliens who received a credible-fear interview,
filed for asylum, and appeared in section 240 proceedings to resolve
their asylum claims--a category that would logically include the aliens
with the greatest confidence in the merits of their claims--only a very
small percentage received asylum. In FY 2018 immigration judges
completed 34,158 cases that originated with a credible-fear referral;
only 20,563 of those cases involved an application for asylum, and
immigration judges granted only 5,639 aliens asylum. In other words, in
FY 2018, less than about 6,000 aliens who passed through credible-fear
screening (17% of all completed cases, 27% of all completed cases in
which an asylum application was filed, and about 36% of cases where the
asylum claim was adjudicated on the merits) established that they
should be granted asylum. (An additional 322 aliens received either
statutory withholding or CAT protection.) Because there may be multiple
bases for denying an asylum application and immigration judges often
make alternative findings for consideration of issues on appeal, EOIR
does not track reasons for asylum denials by immigration judges at a
granular level. Nevertheless, experience indicates that the vast
majority of those asylum denials reflect a conclusion that the alien
failed to establish a significant possibility of persecution, rather
than the effect of a bar to asylum eligibility or a discretionary
decision by an immigration judge to deny asylum to an alien who
qualifies as a refugee.
The statistics for nationals of Northern Triangle countries are
particularly illuminating. In FY 2018, immigration judges in section
240 proceedings adjudicated 20,784 cases involving nationals of
Northern Triangle countries who were referred for credible-fear
interviews and then referred to section 240 proceedings (i.e., they
expressed a fear and either received a positive credible-fear
determination or had their case closed and referred to section 240
proceedings for an unspecified reason). Given that those aliens
asserted a fear of persecution and progressed through credible-fear
screening, those aliens presumably would have had the greatest reason
to then pursue an asylum application. Yet in only about 54% of those
cases did the alien file an asylum application. Furthermore, about 38%
of aliens from Northern Triangle countries who were referred for
credible-fear interviews and passed to section 240 proceedings did not
appear, and were ordered removed in absentia. Put differently: Only a
little over half of aliens from Northern Triangle countries who claimed
a fear of persecution and passed threshold screening submitted an
application for asylum, and over a third did not appear at section 240
proceedings.\10\ And only 1,889 aliens from Northern Triangle countries
were granted asylum, or approximately 9% of completed cases for aliens
from Northern Triangle countries who received a credible-fear referral,
17% of the cases where such aliens filed asylum applications in their
removal proceedings, and about 23% of cases where such aliens' asylum
claims were adjudicated on the merits. Specifically, in FY 2018, 536
Hondurans, 408 Guatemalans, and 945 Salvadorans who initially were
referred for a credible-fear interview (whether in FY 2018 or earlier)
and progressed to section 240 proceedings were granted asylum.
---------------------------------------------------------------------------

\10\ These percentages are even higher for particular
nationalities. In FY 2018, immigration judges adjudicated 7,151
cases involving Hondurans whose cases originated with a credible-
fear referral in expedited-removal proceedings. Of that 7,151, only
49% (3,509) filed an application for asylum, and 44% (3,167) had
their cases completed with an in absentia removal order because they
failed to appear. Similarly, immigration judges adjudicated 5,382
cases involving Guatemalans whose cases originated with a credible-
fear referral; only 46% (2,457) filed an asylum application, and 41%
(2,218) received in absentia removal orders. The 8,251 Salvadoran
cases had the highest rate of asylum applications (filed in 65% of
cases, or 5,341), and 31% of the total cases (2,534) involved in
absentia removal orders. Numbers for Mexican nationals reflected
similar trends. In FY 2018, immigration judges adjudicated 3,307
cases involving Mexican nationals who progressed to section 240
proceedings after being referred for a credible-fear interview; 49%
of them filed applications for asylum in these proceedings, and 25%
of the total cases resulted in an in absentia removal order.
---------------------------------------------------------------------------

The Departments thus believe that these numbers underscore the
major costs and inefficiencies of the current asylum system. Again,
numbers for Northern Triangle nationals--who represent the vast
majority of aliens who claim a credible fear--illuminate the scale of
the problem. Out of the 63,562 Northern Triangle nationals who
expressed an intent to apply for asylum or a fear of persecution and
received credible-fear screening interviews in FY 2018, 47,507 received
a positive credible-fear finding from the asylum officer or immigration
judge. (Another 10,357 cases were administratively closed, some of
which also may have been referred to section 240 proceedings.) Those
aliens will remain in the United States to await section 240
proceedings while immigration judges work through the current backlog
of nearly 800,000 cases--136,554 of which involve nationals of Northern
Triangle countries who passed through credible-

[[Page 55947]]

fear screening interviews. Immigration judges adjudicated 20,784 cases
involving such nationals of Northern Triangle countries in FY 2018;
slightly under half of those aliens did not file an application for
asylum, and over a third were screened through expedited removal but
did not appear for a section 240 proceeding. Even when nationals of
Northern Triangle countries who passed through credible-fear screening
applied for asylum (as 11,307 did in cases completed in FY 2018),
immigration judges granted asylum to only 1,889, or 17% of the cases
where such aliens filed asylum applications in their removal
proceedings. Immigration judges found in the overwhelming majority of
cases that the aliens had no significant possibility of persecution.
These existing burdens suggest an unsustainably inefficient
process, and those pressures are now coupled with the prospect that
large caravans of thousands of aliens, primarily from Central America,
will seek to enter the United States unlawfully or without proper
documentation and thereafter trigger credible-fear screening procedures
and obtain release into the interior. The United States has been
engaged in ongoing diplomatic negotiations with Mexico and the Northern
Triangle countries (Guatemala, El Salvador, and Honduras) about the
problems on the southern border, but those negotiations have, to date,
proved unable to meaningfully improve the situation.
2. In combination with a presidential proclamation directed at the
crisis on the southern border, the rule would help ameliorate the
pressures on the present system. Aliens who could not establish a
credible fear for asylum purposes due to the proclamation-based
eligibility bar could nonetheless seek statutory withholding of removal
or CAT protection, but would receive a positive finding only by
establishing a reasonable fear of persecution or torture. In FY 2018,
USCIS issued nearly 7,000 reasonable-fear determinations (i.e., made a
positive or negative determination)--a smaller number because the
current determinations are limited to the narrow categories of aliens
described above. Of those determinations, USCIS found a reasonable fear
in 45% of cases in 2018, and 48% of cases in 2017. Negative reasonable-
fear determinations were then subject to further review, and
immigration judges reversed approximately 18%.
Even if rates of positive reasonable-fear findings increased when a
more general population of aliens became subject to the reasonable-fear
screening process, this process would better filter those aliens
eligible for that form of protection. Even assuming that grant rates
for statutory withholding in the reasonable-fear screening process (a
higher standard) would be the same as grant rates for asylum, this
screening mechanism would likely still allow through a significantly
higher percentage of cases than would likely be granted. And the
reasonable-fear screening rates would also still allow a far greater
percentage of claimants through than would ultimately receive CAT
protection. Fewer than 1,000 aliens per year, of any nationality,
receive CAT protection.
To the extent that aliens continued to enter the United States in
violation of a relevant proclamation, the application of the rule's bar
to eligibility for asylum in the credible-fear screening process
(combined with the application of the reasonable-fear standard to
statutory withholding and CAT claims) would reduce the number of cases
referred to section 240 proceedings. Finally, the Departments emphasize
that this rule would not prevent aliens with claims for statutory
withholding or CAT protection from having their claims adjudicated in
section 240 proceedings after satisfying the reasonable-fear standard.
Further, determining whether an alien is subject to a suspension of
entry proclamation would ordinarily be straightforward, because such
orders specify the class of aliens whose entry is restricted. Likewise,
adding questions designed to elicit whether an alien is subject to an
entry proclamation, and employing a bifurcated credible-fear analysis
for the asylum claim and reasonable-fear review of the statutory
withholding and CAT claims, will likely not be unduly burdensome.
Although DHS has generally not applied existing mandatory bars to
asylum in credible-fear determinations, asylum officers currently probe
for this information and note in the record where the possibility
exists that a mandatory bar may apply. Though screening for
proclamation-based ineligibility for asylum may in some cases entail
some additional work, USCIS will account for it under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., as needed, following issuance of
a covered proclamation. USCIS asylum officers and EOIR immigration
judges have almost two decades of experience applying the reasonable-
fear standard to statutory withholding and CAT claims, and do so in
thousands of cases per year already (13,732 in FY 2018 for both EOIR
and USCIS). See, e.g., Memorandum for All Immigration Judges, et al.,
from The Office of the Chief Immigration Judge, Executive Office for
Immigration Review at 6 (May 14, 1999) (explaining similarities between
credible-fear and reasonable-fear proceedings for immigration judges).
That said, USCIS estimates that asylum officers have historically
averaged four to five credible-fear interviews and completions per day,
but only two to three reasonable-fear case completions per day.
Comparing this against current case processing targets, and depending
on the number of aliens who contravene a presidential proclamation,
such a change might result in the need to increase the number of
officers required to conduct credible-fear or reasonable-fear
screenings to maintain current case completion goals. However, current
reasonable-fear interviews are for types of aliens (aggravated felons
and aliens subject to reinstatement) for whom relevant criminal and
immigration records take time to obtain, and for whom additional
interviewing and administrative processing time is typically required.
The population of aliens who would be subject to this rule would
generally not have the same type of criminal and immigration records in
the United States, but additional interviewing time might be necessary.
Therefore, it is unclear whether these averages would hold once the
rule is implemented.
If an asylum officer determines that credible fear has been
established but for the existence of the proclamation bar, and the
alien seeks review of such determination before an immigration judge,
DHS may need to shift additional resources towards facilitating such
review in immigration court in order to provide records of the negative
credible-fear determination to the immigration court. However, ICE
attorneys, while sometimes present, generally do not advocate for DHS
in negative credible-fear or reasonable-fear reviews before an
immigration judge.
DHS would, however, also expend additional resources detaining
aliens who would have previously received a positive credible-fear
determination and who now receive, and challenge, a negative credible-
fear and reasonable-fear determination. Aliens are generally detained
during the credible-fear screening, but may be eligible for parole or
release on bond if they establish a credible fear. To the extent that
the rule may result in lengthier interviews for each case, aliens'
length of stay in detention would increase. Furthermore, DHS
anticipates that more negative determinations would increase the number
of aliens who would be

[[Page 55948]]

detained and the length of time they would be detained, since fewer
aliens would be eligible for parole or release on bond. Also, to the
extent this rule would increase the number of aliens who receive both
negative credible-fear and reasonable-fear determinations, and would
thus be subject to immediate removal, DHS will incur increased and more
immediate costs for enforcement and removal of these aliens. That cost
would be counterbalanced by the fact that it would be considerably more
costly and resource-intensive to ultimately remove such an alien after
the end of section 240 proceedings, and the desirability of promoting
greater enforcement of the immigration laws.
Attorneys from ICE represent DHS in full immigration proceedings,
and immigration judges (who are part of DOJ) adjudicate those
proceedings. If fewer aliens are found to have credible fear or
reasonable fear and referred to full immigration proceedings, such a
development will allow DOJ and ICE attorney resources to be reallocated
to other immigration proceedings. The additional bars to asylum are
unlikely to result in immigration judges spending much additional time
on each case where the nature of the proclamation bar is
straightforward to apply. Further, there will likely be a decrease in
the number of asylum hearings before immigration judges because certain
respondents will no longer be eligible for asylum and DHS will likely
refer fewer cases to full immigration proceedings. If DHS officers
identify the proclamation-based bar to asylum (before EOIR has acquired
jurisdiction over the case), EOIR anticipates a reduction in both in-
court and out-of-court time for immigration judges.
A decrease in the number of credible-fear findings and, thus,
asylum grants would also decrease the number of employment
authorization documents processed by DHS. Aliens are generally eligible
to apply for and receive employment authorization and an Employment
Authorization Document (Form I-766) after their asylum claim has been
pending for more than 180 days. See INA 208(d)(5)(A)(iii), 8 U.S.C.
1158(d)(5)(A)(iii); 8 CFR 1208.7(a)(1)(2). This rule and any associated
future presidential proclamations would also be expected to have a
deterrent effect that could lessen future flows of illegal immigration.
3. The Departments are not in a position to determine how all entry
proclamations involving the southern border could affect the decision
calculus for various categories of aliens planning to enter the United
States through the southern border in the near future. The focus of
this rule is on the tens of thousands of aliens each year (97,192 in FY
2018) who assert a credible fear in expedited-removal proceedings and
may thereby be placed on a path to release into the interior of the
United States. The President has announced his intention to take
executive action to suspend the entry of aliens between ports of entry
and instead to channel such aliens to ports of entry, where they may
seek to enter and assert an intent to apply for asylum in a controlled,
orderly, and lawful manner. The Departments have accordingly assessed
the anticipated effects of such a presidential action so as to
illuminate how the rule would be applied in those circumstances.
a. Effects on Aliens. Such a proclamation, coupled with this rule,
would have the most direct effect on the more than approximately 70,000
aliens a year (as of FY 2018) estimated to enter between the ports of
entry and then assert a credible fear in expedited-removal
proceedings.\11\ If such aliens contravened a proclamation suspending
their entry unless they entered at a port of entry, they would become
ineligible for asylum, but would remain eligible for statutory
withholding or CAT protection. And for the reasons discussed above,
their claims would be processed more expeditiously. Conversely, if such
aliens decided to instead arrive at ports of entry, they would remain
eligible for asylum and would proceed through the existing credible-
fear screening process.
---------------------------------------------------------------------------

\11\ The Departments estimated this number by using the
approximately 171,511 aliens in FY 2018 who were referred to
expedited removal after crossing illegally between ports of entry
and being apprehended by CBP. That number excludes the approximately
3,102 additional aliens who were arrested by ICE, because it is not
clear at this time whether such aliens were ultimately processed at
a port of entry. The Departments also relied on the fact that
approximately 41% of aliens in expedited removal in FY 2018
triggered credible-fear screening.
---------------------------------------------------------------------------

Such an application of this rule could also affect the decision
calculus for the estimated 24,000 or so aliens a year (as of FY 2018)
who arrive at ports of entry along the southern border and assert a
credible fear in expedited-removal proceedings.\12\ Such aliens would
likely face increased wait times at a U.S. port of entry, meaning that
they would spend more time in Mexico. Third-country nationals in this
category would have added incentives to take advantage of Mexican
asylum procedures and to make decisions about travel to a U.S. port of
entry based on information about which ports were most capable of swift
processing.
---------------------------------------------------------------------------

\12\ The Departments estimated this number by using the
approximately 59,921 aliens in FY 2018 who were referred to
expedited removal after presenting at a port of entry. That number
excludes the approximately 3,102 additional aliens who were arrested
by ICE, because it is not clear at this time whether such aliens
were ultimately processed at a port of entry. The Departments also
relied on the fact that approximately 41% of aliens in expedited
removal in FY 2018 triggered credible-fear screening.
---------------------------------------------------------------------------

Such an application of this rule could also affect aliens who apply
for asylum affirmatively or in removal proceedings after entering
through the southern border. Some of those asylum grants would become
denials for aliens who became ineligible for asylum because they
crossed illegally in contravention of a proclamation effective before
they entered. Such aliens could, however, still obtain statutory
withholding of removal or CAT protection in section 240 proceedings.
Finally, such a proclamation could also affect the thousands of
aliens who are granted asylum each year. Those aliens' cases are
equally subject to existing backlogs in immigration courts, and could
be adjudicated more swiftly if the number of non-meritorious cases
declined. Aliens with meritorious claims could thus more expeditiously
receive the benefits associated with asylum.
b. Effects on the Departments' Operations. Applying this rule in
conjunction with a proclamation that channeled aliens seeking asylum to
ports of entry would likely create significant overall efficiencies in
the Departments' operations beyond the general efficiencies discussed
above. Channeling even some proportion of aliens who currently enter
illegally and assert a credible fear to ports of entry would, on
balance, be expected to help the Departments more effectively leverage
their resources to promote orderly and efficient processing of
inadmissible aliens.
At present, CBP dedicates enormous resources to attempting to
apprehend aliens who cross the southern border illegally. As noted, CBP
apprehended 396,579 such aliens in FY 2018. Such crossings often occur
in remote locations, and over 16,000 CBP officers are responsible for
patrolling hundreds of thousands of square miles of territory, ranging
from deserts to mountainous terrain to cities. When a United States
Border Patrol (``Border Patrol'' or ``USBP'') agent apprehends an alien
who enters unlawfully, the USBP agent takes the alien into custody and
transports the alien to a Border Patrol station for processing--which
could be hours away. Family units apprehended after crossing illegally
present additional logistical challenges, and may require additional
agents to assist

[[Page 55949]]

with the transport of the illegal aliens from the point of apprehension
to the station for processing. And apprehending one alien or group of
aliens may come at the expense of apprehending others while agents are
dedicating resources to transportation instead of patrolling.
At the Border Patrol station, a CBP agent obtains an alien's
fingerprints, photographs, and biometric data, and begins asking
background questions about the alien's nationality and purpose in
crossing. At the same time, agents must make swift decisions, in
coordination with DOJ, as to whether to charge the alien with an
immigration-related criminal offense. Further, agents must decide
whether to apply expedited-removal procedures, to pursue reinstatement
proceedings if the alien already has a removal order in effect, to
authorize voluntary return, or to pursue some other lawful course of
action. Once the processing of the alien is completed, the USBP
temporarily detains any alien who is referred for removal proceedings.
Once the USBP determines that an alien should be placed in expedited-
removal proceedings, the alien is expeditiously transferred to ICE
custody in compliance with federal law. The distance between ICE
detention facilities and USBP stations, however, varies. Asylum
officers and immigration judges review negative credible-fear findings
during expedited-removal proceedings while the alien is in ICE custody.
By contrast, CBP officers are able to employ a more orderly and
streamlined process for inadmissible aliens who present at one of the
ports of entry along the southern border--even if they claim a credible
fear. Because such aliens have typically sought admission without
violating the law, CBP generally does not need to dedicate resources to
apprehending or considering whether to charge such aliens. And while
aliens who present at a port of entry undergo threshold screening to
determine their admissibility, see INA 235(b)(2), 8 U.S.C. 1225(b)(2),
that process takes approximately the same amount of time as CBP's
process for obtaining details from aliens apprehended between ports of
entry. Just as for illegal entrants, CBP officers at ports of entry
must decide whether inadmissible aliens at ports of entry are subject
to expedited removal. Aliens subject to such proceedings are then
generally transferred to ICE custody so that DHS can implement
Congress's statutory mandate to detain such aliens during the pendency
of expedited-removal proceedings. As with stations, ports of entry vary
in their proximity to ICE detention facilities.
The Departments acknowledge that in the event all of the
approximately 70,000 aliens per year who cross illegally and assert a
credible fear instead decide to present at a port of entry, processing
times at ports of entry would be slower in the absence of additional
resources or policies that would encourage aliens to enter at less busy
ports. Using FY 2018 figures, the number of aliens presenting at a port
of entry would rise from about 124,511 to about 200,000 aliens if all
illegal aliens who assert a credible fear went to ports of entry. That
would likely create longer lines at U.S. ports of entry, although the
Departments note that such ports have variable capacities and that wait
times vary considerably between them. The Departments nonetheless
believe such a policy would be preferable to the status quo. Nearly 40%
of inadmissible aliens who present at ports of entry today are Mexican
nationals, who rarely claim a credible fear and who accordingly can be
processed and admitted or removed quickly.
Furthermore, the overwhelming number of aliens who would have an
incentive under the rule and a proclamation to arrive at a port of
entry rather than to cross illegally are from third countries, not from
Mexico. In FY 2018, CBP apprehended and referred to expedited removal
an estimated 87,544 Northern Triangle nationals and an estimated 66,826
Mexican nationals, but Northern Triangle nationals assert a credible
fear over 60% of the time, whereas Mexican nationals assert a credible
fear less than 10% of the time. The Departments believe that it is
reasonable for third-country aliens, who appear highly unlikely to be
persecuted on account of a protected ground or tortured in Mexico, to
be subject to orderly processing at ports of entry that takes into
account resource constraints at ports of entry and in U.S. detention
facilities. Such orderly processing would be impossible if large
proportions of third-country nationals continue to cross the southern
border illegally.
To be sure, some Mexican nationals who would assert a credible fear
may also have to spend more time waiting for processing in Mexico. Such
nationals, however, could still obtain statutory withholding of removal
or CAT protection if they crossed illegally, which would allow them a
safeguard against persecution. Moreover, only 178 Mexican nationals
received asylum in FY 2018 after initially asserting a credible fear of
persecution in expedited-removal proceedings, indicating that the
category of Mexican nationals most likely to be affected by the rule
and a proclamation would also be highly unlikely to establish
eligibility for asylum.

Regulatory Requirements

A. Administrative Procedure Act

While the Administrative Procedure Act (``APA'') generally requires
agencies to publish notice of a proposed rulemaking in the Federal
Register for a period of public comment, it provides an exception
``when the agency for good cause finds . . . that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest.'' 5 U.S.C. 553(b)(B). This exception relieves agencies
of the notice-and-comment requirement in emergency situations, or in
circumstances where ``the delay created by the notice and comment
requirements would result in serious damage to important interests.''
Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 333 (1990),
aff'd, 925 F.2d 1454 (Fed. Cir. 1991); see also Nat'l Fed'n of Federal
Emps. v. Nat'l Treasury Emps. Union, 671 F.2d 607, 611 (D.C. Cir.
1982); United States v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010).
Agencies have previously relied on this exception in promulgating a
host of immigration-related interim rules.\13\ Furthermore, DHS has
invoked this exception in promulgating rules related to expedited
removal--a context in which Congress recognized the need for dispatch
in addressing large volumes of aliens by giving the Secretary
significant discretion to ``modify at any time'' the classes of aliens
who would be subject to such procedures. See INA 235(b)(1)(A)(iii)(I),
8 U.S.C. 1225(b)(1)(A)(iii)(I).\14\
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\13\ See, e.g., Visas: Documentation of Nonimmigrants Under the
Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb.
4, 2016) (interim rule citing good cause to immediately require
additional documentation from certain Caribbean agricultural workers
to avoid ``an increase in applications for admission in bad faith by
persons who would otherwise have been denied visas and are seeking
to avoid the visa requirement and consular screening process during
the period between the publication of a proposed and a final
rule''); Suspending the 30-Day and Annual Interview Requirements
From the Special Registration Process for Certain Nonimmigrants, 68
FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming good cause
exception for suspending certain automatic registration requirements
for nonimmigrants because ``without [the] regulation approximately
82,532 aliens would be subject to 30-day or annual re-registration
interviews'' over six months).
\14\ See, e.g., Eliminating Exception to Expedited Removal
Authority for Cuban Nationals Arriving by Air, 82 FR at 4770
(claiming good cause exception because the ability to detain certain
Cuban nationals ``while admissibility and identity are determined
and protection claims are adjudicated, as well as to quickly remove
those without protection claims or claims to lawful status, is a
necessity for national security and public safety''); Designating
Aliens For Expedited Removal, 69 FR at 48880 (claiming good cause
exception for expansion of expedited-removal program due to ``[t]he
large volume of illegal entries, and attempted illegal entries, and
the attendant risks to national security presented by these illegal
entries,'' as well as ``the need to deter foreign nationals from
undertaking dangerous border crossings, and thereby prevent the
needless deaths and crimes associated with human trafficking and
alien smuggling operations'').

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[[Page 55950]]

The Departments have concluded that the good-cause exceptions in 5
U.S.C. 553(b)(B) and (d)(3) apply to this rule. Notice and comment on
this rule, along with a 30-day delay in its effective date, would be
impracticable and contrary to the public interest. The Departments have
determined that immediate implementation of this rule is essential to
avoid creating an incentive for aliens to seek to cross the border
during pre-promulgation notice and comment under 5 U.S.C. 553(b) or
during the 30-day delay in the effective date under 5 U.S.C. 553(d).
DHS concluded in January 2017 that it was imperative to give
immediate effect to a rule designating Cuban nationals arriving by air
as eligible for expedited removal because ``pre-promulgation notice and
comment would . . . endanger[] human life and hav[e] a potential
destabilizing effect in the region.'' Eliminating Exception to
Expedited Removal Authority for Cuban Nationals Arriving by Air, 82 FR
at 4770. DHS in particular cited the prospect that ``publication of the
rule as a proposed rule, which would signal a significant change in
policy while permitting continuation of the exception for Cuban
nationals, could lead to a surge in migration of Cuban nationals
seeking to travel to and enter the United States during the period
between the publication of a proposed and a final rule.'' Id. DHS found
that ``[s]uch a surge would threaten national security and public
safety by diverting valuable Government resources from counterterrorism
and homeland security responsibilities. A surge could also have a
destabilizing effect on the region, thus weakening the security of the
United States and threatening its international relations.'' Id. DHS
concluded: ``[A] surge could result in significant loss of human
life.'' Id.; accord, e.g., Designating Aliens For Expedited Removal, 69
FR 48877 (noting similar destabilizing incentives for a surge during a
delay in the effective date); Visas: Documentation of Nonimmigrants
Under the Immigration and Nationality Act, as Amended, 81 FR at 5907
(finding the good-cause exception applicable because of similar short-
run incentive concerns).
These same concerns would apply here as well. Pre-promulgation
notice and comment, or a delay in the effective date, could lead to an
increase in migration to the southern border to enter the United States
before the rule took effect. For instance, the thousands of aliens who
presently enter illegally and make claims of credible fear if and when
they are apprehended would have an added incentive to cross illegally
during the comment period. They have an incentive to cross illegally in
the hopes of evading detection entirely. Even once apprehended, at
present, they are able to take advantage of a second opportunity to
remain in the United States by making credible-fear claims in
expedited-removal proceedings. Even if their statements are ultimately
not found to be genuine, they are likely to be released into the
interior pending section 240 proceedings that may not occur for months
or years. Based on the available statistics, the Departments believe
that a large proportion of aliens who enter illegally and assert a fear
could be released while awaiting section 240 proceedings. There
continues to be an ``urgent need to deter foreign nationals from
undertaking dangerous border crossings, and thereby prevent the
needless deaths and crimes associated with human trafficking and alien
smuggling operations.'' Designating Aliens For Expedited Removal, 69 FR
at 48878.
Furthermore, there are already large numbers of migrants--including
thousands of aliens traveling in groups, primarily from Central
America--expected to attempt entry at the southern border in the coming
weeks. Some are traveling in large, organized groups through Mexico
and, by reports, intend to come to the United States unlawfully or
without proper documentation and to express an intent to seek asylum.
Creating an incentive for members of those groups to attempt to enter
the United States unlawfully before this rule took effect would make
more dangerous their already perilous journeys, and would further
strain CBP's apprehension operations. This interim rule is thus a
practical means to address these developments and avoid creating an
even larger short-term influx; an extended notice-and-comment
rulemaking process would be impracticable.
Alternatively, the Departments may forgo notice-and-comment
procedures and a delay in the effective date because this rule involves
a ``foreign affairs function of the United States.'' 5 U.S.C.
553(a)(1). The flow of aliens across the southern border, unlawfully or
without appropriate travel documents, directly implicates the foreign
policy interests of the United States. See, e.g., Exec. Order 13767
(Jan. 25, 2017). Presidential proclamations invoking section 212(f) or
215(a)(1) of the INA at the southern border necessarily implicate our
relations with Mexico and the President's foreign policy, including
sensitive and ongoing negotiations with Mexico about how to manage our
shared border.\15\ A proclamation under section 212(f) of the INA would
reflect a presidential determination that some or all entries along the
border ``would [be] detrimental to the interests of the United
States.'' And the structure of the rule, under which the Attorney
General and the Secretary are exercising their statutory authority to
establish a mandatory bar to asylum eligibility resting squarely on a
proclamation issued by the President, confirms the direct relationship
between the President's foreign policy decisions in this area and the
rule.
---------------------------------------------------------------------------

\15\ For instance, since 2004, the United States and Mexico have
been operating under a memorandum of understanding concerning the
repatriation of Mexican nationals. Memorandum of Understanding
Between the Department of Homeland Security of the United States of
America and the Secretariat of Governance and the Secretariat of
Foreign Affairs of the United Mexican States, on the Safe, Orderly,
Dignified and Humane Repatriation of Mexican Nationals (Feb. 20,
2004). Article 6 of that memorandum reserves the movement of third-
country nationals through Mexico and the United States for further
bilateral negotiations.
---------------------------------------------------------------------------

For instance, a proclamation aimed at channeling aliens who wish to
make a claim for asylum to ports of entry at the southern border would
be inextricably related to any negotiations over a safe-third-country
agreement (as defined in INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), or
any similar arrangements. As noted, the vast majority of aliens who
enter illegally today come from the Northern Triangle countries, and
large portions of those aliens assert a credible fear. Channeling those
aliens to ports of entry would encourage these aliens to first avail
themselves of offers of asylum from Mexico.
Moreover, this rule would be an integral part of ongoing
negotiations with Mexico and Northern Triangle countries over how to
address the influx of tens of thousands of migrants from Central
America through Mexico and into the United States. For instance, over
the past few weeks, the United States has consistently engaged with the
Security and Foreign Ministries of El Salvador, Guatemala, and
Honduras, as well as the Ministries of Governance and Foreign Affairs
of Mexico, to

[[Page 55951]]

discuss how to address the mass influx of aliens traveling together
from Central America who plan to seek to enter at the southern border.
Those ongoing discussions involve negotiations over issues such as how
these other countries will develop a process to provide this influx
with the opportunity to seek protection at the safest and earliest
point of transit possible, and how to establish compliance and
enforcement mechanisms for those who seek to enter the United States
illegally, including for those who do not avail themselves of earlier
offers of protection. Furthermore, the United States and Mexico have
been engaged in ongoing discussions of a safe-third-country agreement,
and this rule will strengthen the ability of the United States to
address the crisis at the southern border and therefore facilitate the
likelihood of success in future negotiations.
This rule thus supports the President's foreign policy with respect
to Mexico and the Northern Triangle countries in this area and is
exempt from the notice-and-comment and delayed-effective-date
requirements in 5 U.S.C. 553. See Am. ***'n of Exporters & Importers-
Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed. Cir.
1985) (noting that foreign affairs exception covers agency actions
``linked intimately with the Government's overall political agenda
concerning relations with another country''); Yassini v. Crosland, 618
F.2d 1356, 1361 (9th Cir. 1980) (because an immigration directive ``was
implementing the President's foreign policy,'' the action ``fell within
the foreign affairs function and good cause exceptions to the notice
and comment requirements of the APA'').
Invoking the APA's foreign affairs exception is also consistent
with past rulemakings. In 2016, for example, in response to diplomatic
developments between the United States and Cuba, DHS changed its
regulations concerning flights to and from the island via an
immediately effective interim final rule. This rulemaking explained
that it was covered by the foreign affairs exception because it was
``consistent with U.S. foreign policy goals''--specifically, the
``continued effort to normalize relations between the two countries.''
Flights to and From Cuba, 81 FR 14948, 14952 (Mar. 21, 2016). In a
similar vein, DHS and the State Department recently provided notice
that they were eliminating an exception to expedited removal for
certain Cuban nationals. The notice explained that the change in policy
was subject to the foreign affairs exception because it was ``part of a
major foreign policy initiative announced by the President, and is
central to ongoing diplomatic discussions between the United States and
Cuba with respect to travel and migration between the two countries.''
Eliminating Exception To Expedited Removal Authority for Cuban
Nationals Encountered in the United States or Arriving by Sea, 82 FR at
4904-05.
For the foregoing reasons, taken together, the Departments have
concluded that the foreign affairs exemption to notice-and-comment
rulemaking applies.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
requires an agency to prepare and make available to the public a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). A regulatory flexibility analysis is
not required when a rule is exempt from notice-and-comment rulemaking.

C. Unfunded Mandates Reform Act of 1995

This interim final rule will not result in the expenditure by
state, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.

D. Congressional Review Act

This interim final rule is not a major rule as defined by section
804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

E. Executive Order 12866, Executive Order 13563, and Executive Order
13771 (Regulatory Planning and Review)

This interim final rule is not a ``significant regulatory action''
under section 3(f) of Executive Order 12866 because the rule is exempt
under the foreign-affairs exemption in section 3(d)(2) as part of the
actual exercise of diplomacy. The rule is consequently also exempt from
Executive Order 13771 because it is not a significant regulatory action
under Executive Order 12866. Though the potential costs, benefits, and
transfers associated with some proclamations may have any of a range of
economic impacts, this rule itself does not have an impact aside from
enabling future action. The Departments have discussed what some of the
potential impacts associated with a proclamation may be, but these
impacts do not stem directly from this rule and, as such, they do not
consider them to be costs, benefits, or transfers of this rule.
This rule amends existing regulations to provide that aliens
subject to restrictions on entry under certain proclamations are
ineligible for asylum. The expected effects of this rule for aliens and
on the Departments' operations are discussed above. As noted, this rule
will result in the application of an additional mandatory bar to
asylum, but the scope of that bar will depend on the substance of
relevant triggering proclamations. In addition, this rule requires DHS
to consider and apply the proclamation bar in the credible-fear
screening analysis, which DHS does not currently do. Application of the
new bar to asylum will likely decrease the number of asylum grants. By
applying the bar earlier in the process, it will lessen the time that
aliens who are ineligible for asylum and who lack a reasonable fear of
persecution or torture will be present in the United States. Finally,
DOJ is amending its regulations with respect to aliens who are subject
to the proclamation bar to asylum eligibility to ensure that aliens who
establish a reasonable fear of persecution or torture may still seek,
in proceedings before immigration judges, statutory withholding of
removal under the INA or CAT protection.

Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.

[[Page 55952]]

G. Paperwork Reduction Act

This rule does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320.

List of Subjects

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.

8 CFR Part 1003

Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).

8 CFR Part 1208

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.

Regulatory Amendments

DEPARTMENT OF HOMELAND SECURITY

Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR part 208 as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as fol1ows:

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229, 8 CFR part 2.


0
2. In Sec. 208.13, add paragraph (c)(3) to read as follows:


Sec. 208.13 Establishing asylum eligibility.

* * * * *
(c) * * *
(3) Additional limitation on eligibility for asylum. For
applications filed after November 9, 2018, an alien shall be ineligible
for asylum if the alien is subject to a presidential proclamation or
other presidential order suspending or limiting the entry of aliens
along the southern border with Mexico that is issued pursuant to
subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018
and the alien enters the United States after the effective date of the
proclamation or order contrary to the terms of the proclamation or
order. This limitation on eligibility does not apply if the
proclamation or order expressly provides that it does not affect
eligibility for asylum, or expressly provides for a waiver or exception
that makes the suspension or limitation inapplicable to the alien.

0
3. In Sec. 208.30, revise the section heading and add a sentence at
the end of paragraph (e)(5) to read as follows:


Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission who are found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or
suspended under section 212(f) or 215(a)(1) of the Act.

* * * * *
(e) * * *
(5) * * * If the alien is found to be an alien described in 8 CFR
208.13(c)(3), then the asylum officer shall enter a negative credible
fear determination with respect to the alien's application for asylum.
The Department shall nonetheless place the alien in proceedings under
section 240 of the Act for full consideration of the alien's claim for
withholding of removal under section 241(b)(3) of the Act, or for
withholding or deferral of removal under the Convention Against Torture
if the alien establishes a reasonable fear of persecution or torture.
However, if an alien fails to establish, during the interview with the
asylum officer, a reasonable fear of either persecution or torture, the
asylum officer will provide the alien with a written notice of
decision, which will be subject to immigration judge review consistent
with paragraph (g) of this section, except that the immigration judge
will review the reasonable fear findings under the reasonable fear
standard instead of the credible fear standard described in paragraph
(g) and in 8 CFR 1208.30(g).
* * * * *

Approved:

Dated: November 5, 2018.
Kirstjen M. Nielsen,
Secretary of Homeland Security.

DEPARTMENT OF JUSTICE

Accordingly, for the reasons set forth in the preamble, the
Attorney General amends 8 CFR parts 1003 and 1208 as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
4. The authority citation for part 1003 continues to read as follows:

Authority: 5 U.S.C. 301; 6 U.S.C 521; 8 U.S.C. 1101, 1103, 1154,
1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a,
1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2
Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section
203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510
of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub.
L. 106-554, 114 Stat. 2763A-326 to -328.


0
5. In Sec. 1003.42, add a sentence at the end of paragraph (d) to read
as follows:


Sec. 1003.42 Review of credible fear determination.

* * * * *
(d) * * * If the alien is determined to be an alien described in 8
CFR 208.13(c)(3) or 1208.13(c)(3) and is determined to lack a
reasonable fear under 8 CFR 208.30(e)(5), the immigration judge shall
first review de novo the determination that the alien is described in 8
CFR 208.13(c)(3) or 1208.13(c)(3) prior to any further review of the
asylum officer's negative determination.
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
6. The authority citation for part 1208 continues to read as fol1ows:

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229.


0
7. In Sec. 1208.13, add paragraph (c)(3) to read as follows:


Sec. 1208.13 Establishing asylum eligibility.

* * * * *
(c) * * *
(3) Additional limitation on eligibility for asylum. For
applications filed after November 9, 2018, an alien shall be ineligible
for asylum if the alien is subject to a presidential proclamation or
other presidential order suspending or limiting the entry of aliens
along the southern border with Mexico that is issued pursuant to
subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018
and the alien enters the United States after the effective date of the
proclamation or order contrary to the terms of the proclamation or
order. This limitation on eligibility does not apply if the
proclamation or order expressly provides that it does not affect
eligibility for asylum, or expressly provides for a waiver or exception
that makes the suspension or limitation inapplicable to the alien.

0
8. In Sec. 1208.30, revise the section heading and add paragraph
(g)(1) to read as follows:

[[Page 55953]]

Sec. 1208.30 Credible fear determinations involving stowaways and
applicants for admission who are found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or
suspended under section 212(f) or 215(a)(1) of the Act.

* * * * *
(g) * * *
(1) Review by immigration judge of a mandatory bar finding. If the
alien is determined to be an alien described in 8 CFR 208.13(c)(3) or
1208.13(c)(3) and is determined to lack a reasonable fear under 8 CFR
208.30(e)(5), the immigration judge shall first review de novo the
determination that the alien is described in 8 CFR 208.13(c)(3) or
1208.13(c)(3). If the immigration judge finds that the alien is not
described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), then the immigration
judge shall vacate the order of the asylum officer, and DHS may
commence removal proceedings under section 240 of the Act. If the
immigration judge concurs with the credible fear determination that the
alien is an alien described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), the
immigration judge will then review the asylum officer's negative
decision regarding reasonable fear made under 8 CFR 208.30(e)(5)
consistent with paragraph (g)(2) of this section, except that the
immigration judge will review the findings under the reasonable fear
standard instead of the credible fear standard described in paragraph
(g)(2).
* * * * *

Dated: November 6, 2018.
Jefferson B. Sessions III,
Attorney General.
[FR Doc. 2018-24594 Filed 11-8-18; 4:15 pm]
BILLING CODE 4410-30-P; 9111-97-P