[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]

[Rules and Regulations]

[Pages 6847-6848]

From the Federal Register Online via the Government Publishing Office [ www.gpo.gov]

[FR Doc No: 2021-01683]


Rules and Regulations

Federal Register


This section of the FEDERAL REGISTER contains regulatory documents

having general applicability and legal effect, most of which are keyed

to and codified in the Code of Federal Regulations, which is published

under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.


Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Rules

and Regulations

[[Page 6847]]


8 CFR Part 208

[Docket No: USCIS 2020-0013]

RIN 1615-AC57


Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 4975-2021]

RIN 1125-AB08

Security Bars and Processing; Delay of Effective Date

AGENCY: U.S. Citizenship and Immigration Services, Department of

Homeland Security (``DHS''); Executive Office for Immigration Review,

Department of Justice (``DOJ'')

ACTION: Final rule; delay of effective date.


SUMMARY: On December 23, 2020, DHS and DOJ (collectively, ``the

Departments'') published a final rule to clarify that the danger to the

security of the United States statutory bar to eligibility for asylum

and withholding of removal encompass certain emergency public health

concerns and make certain other changes. The Departments are delaying

the rule's effective date for 60 days.

DATES: As of January 21, 2021, the effective date of the final rule

published at 85 FR 84160 (Dec. 23, 2020) is delayed until March 22,



Division Chief, Refugee, Asylum and International Affairs Directorate,

U.S. Citizenship and Immigration Services, DHS; telephone 240-721-3000

(not a toll-free call).

For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,

Executive Office for Immigration Review, telephone (703) 305-0289 (not

a toll-free call).


Background and Basis for Delay

On December 23, 2020, the Departments published a final rule

(``Security Bars rule'') to amend existing regulations to clarify that

in certain circumstances there are ``reasonable grounds for regarding

[an] alien as a danger to the security of the United States'' or

``reasonable grounds to believe that [an] alien is a danger to the

security of the United States'' based on emergency public health

concerns generated by a communicable disease, making the alien

ineligible to be granted asylum in the United States under section 208

of the Immigration and Nationality Act or the protection of withholding

of removal under that Act or subsequent regulations (because of the

threat of torture). See Security Bars and Processing, 85 FR 84160 et

seq. (Dec. 23, 2020).

On January 20, 2021, the White House Chief of Staff issued a

memorandum asking agencies to consider delaying, consistent with

applicable law, the effective dates of any rules that have published

and not yet gone into effect, for the purpose of allowing the

President's appointees and designees to review questions of fact, law,

and policy raised by those regulations. See Memorandum for the Heads of

Executive Departments and Agencies from Ronald A. Klain, Assistant to

the President and Chief of Staff, Re: Regulatory Freeze Pending Review

(Jan. 20, 2021). This action is consistent with that memorandum.

The Departments have good cause to delay this rule's effective date

without advance notice and comment because a permissible path to

implementation of the rule is not apparent due to a preliminary

injunction against a related rule. On December 11, 2020, the

Departments issued a rule titled Procedures for Asylum and Withholding

of Removal; Credible Fear and Reasonable Fear Review.\1\ On January 8,

2021, a district court preliminarily enjoined the Departments ``from

implementing, enforcing, or applying the [December 11] rule . . . or

any related policies or procedures.'' \2\


\1\ See 85 FR 80274 (Dec. 11, 2020).

\2\ See Pangea Legal Servs. v. Dep't of Homeland Security, No.

20-09253-JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8, 2021). The

Pangea court held that plaintiffs showed a likelihood that Chad F.

Wolf, who approved the December 11 rule in his capacity as Acting

Secretary of Homeland Security, did not have valid authority to act

in that capacity. See id. *6. Following the court's ruling, Peter T.

Gaynor and Mr. Wolf took steps to ratify the December 11 rule. See

DHS Delegation No. 23028, Delegation to the Under Secretary for

Strategy, Policy, and Plans to Act on Final Rules, Regulations, and

Other Matters (Jan. 12, 2021); Chad F. Wolf, Ratification (Jan. 14,

2021). By issuing this rule, the Departments state no position on

Mr. Gaynor or Mr. Wolf's actions or authority, the outcome thus far

in Pangea, or the effects of any further actions.


Implementing the Security Bars rule will not be viable given this

injunction. Most prominently, the Security Bars rule relies upon the

framework for applying bars to asylum during credible fear processing

that was established in the December 11 rule.\3\ That is not possible

given the injunction. The regulatory text of significant portions of

the Security Bars rule is also embedded within and repeats regulatory

text that was established by the December 11 rule.\4\


\3\ See, e.g., 85 FR at 84176 (``As noted, the [Security Bars]

final rule is not, as the NPRM proposed, modifying the regulatory

framework to apply the danger to the security of the United States

bars at the credible fear stage because, in the interim between the

NPRM and the final rule, the [December 11 rule] did so for all of

the bars to eligibility for asylum and withholding of removal.'');

id. at 84189 (describing changes made in the Security Bars rule ``to

certain regulatory provisions not addressed in the proposed rule as

necessitated by the intervening promulgation of the [December 11]


\4\ Compare, e.g., 85 FR at 84194-84198 (revising 8 CFR 208.30,

235.6, 1208.30, and 1235.6, among other provisions) and 85 FR at

80390-80401 (same).


To implement the full Security Bars rule--and effectively reinsert

or rely upon provisions that the Pangea court has enjoined--might run

afoul of the court's injunction. Because the court's injunction is

already effective and it would be impracticable to engage in notice and

comment procedures in advance of the scheduled January 22 effective

date, the Departments are proceeding with this final rule.\5\


\5\ See 5 U.S.C. 553(b)(B), (d) (providing an exception from the

notice and comment requirements when an agency ``for good cause

finds . . . that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest,''

and providing additional exceptions with respect to the delayed

effective date).


The Acting Secretary of Homeland Security, David P. Pekoske, having

[[Page 6848]]

reviewed and approved this document, has delegated the authority to

electronically sign this document to Sharmistha Das, who is the Deputy

General Counsel for DHS, for purposes of publication in the Federal



Sharmistha Das,

Deputy General Counsel, U.S. Department of Homeland Security.

Monty Wilkinson,

Acting Attorney General, Department of Justice.

[FR Doc. 2021-01683 Filed 1-21-21; 4:15 pm]

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