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1 BILLING CODE: 4410-30, 9111''97''P DEPARTM ENT OF HOM ELAND SECURITY 8 CFR Part 208 RIN 1615-AC34 DEPARTM ENT OF JUSTICE Exe cutive Office for Immigratio n Re vie w 8 CFR Parts 1003 and 1208 [EOIR Docke t No. 18-0501; A.G. Orde r No. 4327-2018] RIN 1125-AA89 Alie ns Subje ct to a Bar on Entry unde r Ce rtain Pre side ntial Proclamations; Proce dure s for Prote ction Claims AGENCY: U.S. Citizenship and Immigra tio n Services, Department of Homeland Security; Executive Office for Immigra tio n Review, Department of Justice. ACTION: Interim fina l rule; request for comment. SUM M ARY: The Department of Justice and the Department of Homeland Security (''DOJ,'' ''DHS,'' or, collective ly, ''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 limitatio n on entry into the United States through the southern border with Mexico that is imposed by a presidentia l proclamatio n or other presidentia l order (''a proclamatio n'') under section 212(f) or 215(a)(1) of the Immigra tio n and Nationality Act (''INA''). Pursuant to statutory authority, the Departments are amending their respective existing regulatio ns to provide that aliens subject to such a proclamatio n concerning the southern border, but who contravene such a proclamatio n by entering the United States This document is scheduled to be published in theFederal Register on 11/09/2018 and available online athttps://federalregister.gov/d/2018-24594 , and on govinfo.gov
2 after the effective date of such a proclamatio n, are ineligib le for asylum. The interim rule, if applied to a proclamatio n suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligib ility for asylum and thereby channel inadmissib le 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 proclamatio n issued after the effective date of this rule. It would not apply to a proclamatio n that specifica lly includes an exception for aliens applying for asylum, nor would it apply to aliens subject to a waiver or exception provided by the proclamatio n. DHS is amending its regulatio ns to specify a screening process for aliens who are subject to this specific bar to asylum eligib ility. DOJ is amending its regulatio ns with respect to such aliens. The regulatio ns would ensure that aliens in this category who establish a reasonable fear of persecution or torture could seek withho ld ing of removal under the INA or protection from removal under regulatio ns imple me nting U.S. obligatio ns under Article 3 of the Conventio n Against Torture and Other Cruel, Inhuma n or Degrading Treatment or Punishme nt (''CAT''). DATES: Effectiv e date: This rule is effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Submission of public comments: Written or electronic comments must be submitted on or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Written comments postmarked on or before that date will be considered timely. The electronic Federal Docket Manageme nt System will accept comments prior to midnight eastern standard time at the end of that day.
3 ADDRESSES: You may submit comments, identified by EOIR Docket No. 18-0501, by one of the following methods: ' Federal eRulemak ing Portal: http://www.regulations.gov . Follow the instructio ns for submitting comments. ' Mail: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigra tio n 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 submissio ns. ' Hand Deliv ery/Courier: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigratio n Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone Number (703) 305''0289 (not a toll-free call). FOR FURTHER INFORM ATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigra tio n Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone Number (703) 305''0289 (not a toll-free call). SUPPLEM ENTARY INFORM ATION: I. Public Participatio n Interested persons are invited to participate in this rulemak ing 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
4 specific portion of the rule; explain the reason for any recommended change; and include data, informa tio n, or authority that supports the recommended change. All comments submitted for this rulemak ing 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 availab le for public inspection at www.regulations.gov. Such informatio n includes personally identifiab le informa tio n (such as a person's name, address, or any other data that might personally identify that individ ua l) that the commenter voluntarily submits. If you want to submit personally identifiab le informa tio n 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 informatio n of which you seek redaction. If you want to submit confidentia l business informa tio n as part of your comment, but do not want it to be posted online, you must includ e the phrase ''CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment and precisely and prominently identify the confidentia l business informatio n of which you seek redaction. If a comment has so much confidentia l business informatio n that it cannot be effective ly redacted, all or part of that comment may not be posted on www.regulations.gov. Personally identifiab le informa tio n and confidentia l business informatio n provided as set forth above will be placed in the public docket file of DOJ's Executive Office of Immigra tio n Review (''EOIR''), but not posted online. To inspect the public docket file in person, you must make an appointme nt with EOIR. Please see the FOR FURTHER
5 INFORMATION CONTACT paragraph above for the contact informatio n specific to this rule. II. Purpose of This Inte rim Final Rule This interim final rule (''interim rule'' or ''rule'') governs eligib ility for asylum and screening procedures for aliens subject to a presidentia l proclamatio n 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 ineligib le for asylum if they enter the United States after the effective date of such a proclamatio n, become subject to the proclamatio n, and enter the United States in violatio n of the suspension or limita tio n of entry established by the proclamatio n. The interim rule, if applied to a proclamatio n suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligib ility for asylum and thereby channel inadmissib le 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 proclamatio n will not be subject to this asylum eligib ility bar unless they depart and reenter while the proclamatio n remains in effect. Aliens also will not be subject to this eligib ility bar if they fall within an exception or waiver within the proclamatio n that makes the suspension or limitatio n of entry in the proclamatio n inapplicab le to them, or if the proclamatio n provides that it does not affect eligib ility for asylum.
6 As discussed further below, asylum is a discretionary immigratio n benefit. In general, aliens may apply for asylum if they are physica lly 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 regulatio ns establishing additiona l bars on eligib ility that are consistent with the asylum statute and ''any other conditio ns or limitatio ns on the consideratio n of an applicatio n 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 Illega l Immigratio n Reform and Immigratio n Responsibility Act of 1996 (''IIRIRA''), Public Law 104208, Congress, concerned with rampant delays in proceedings to remove illega l aliens, created expedited procedures for removing inadmissib le aliens, and authorized the extensio n of such procedures to aliens who entered ille ga lly 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 inadmissib le aliens, includ ing those who had entered ille ga lly, while also expeditio usly 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'''--mea ning a ''significa nt possibility . . . that the alien could establish eligib ility for asylum'' under the asylum statute'--would be detained for further consideratio n of an asylum claim. See INA 235(b)(1), (b)(1)(B)(v), 8 U.S.C. 1225(b)(1), (b)(1)(B)(v).
7 When the expedited procedures were first imple me nted approximate ly two decades ago, relative ly few aliens within those proceedings asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens found inadmissib le at the southern border were single adults who were immed iate ly repatriated to Mexico. Thus, while the overall number of illega l aliens apprehended was far higher than it is today (around 1.6 millio n 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 inadmissib le 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 immigra tio n 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 initia l screening process, for a credible-fear intervie w jumped from approximate ly 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 immigratio n 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 determinatio n, they made a positive find ing about 77% of the time. That percentage rose to 80% by FY 2014. In FY 2018, that percentage of positive credible-fear determinatio ns has climbed to about 89% of all cases. After this initia l screening process, however, significa nt
8 proportions of aliens who receive a positive credible-fear determinatio n never file an applicatio n 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 applicatio n 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 illega lly 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 substantia l resources: its immigratio n judges adjudicate aliens' claims, and its offic ia ls are responsible for prosecuting and mainta ining custody over those who violate the crimina l 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 combinatio n 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 offic ia ls have each day encountered an average of approximate ly 2,000 inadmissib le 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
9 the United States unlawfully or without proper documentatio n. Central American nationa ls represent a majority of aliens who enter the United States unlawfully, and are also disproportiona te ly likely to choose to enter illega lly 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 themselve s, 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 negotiatio ns with Mexico and the Northern Triangle countries (Honduras, El Salvador, and Guatemala ) regarding the situatio n on the southern border, but those negotiatio ns have, to date, proved unable to meaningfully improve the situatio n. The purpose of this rule is to limit aliens' eligib ility for asylum if they enter in contraventio n of a proclamatio n suspending or restricting their entry along the southern border. Such aliens would contravene a measure that the President has determined to be in the nationa l interest. For instance, a proclamatio n restricting the entry of inadmissib le aliens who enter unlawfully between ports of entry would reflect a determinatio n that this particular category of aliens necessitates a response that would supplement existing prohibitio ns on entry for all inadmissib le aliens. Such a proclamatio n would encourage such aliens to seek admissio n and indicate an intentio n to apply for asylum at ports of entry. Aliens who enter in violatio n of that proclamatio n would not be eligib le for asylum. They would, however, remain eligib le for statutory withho ld ing of removal
10 under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or for protections under the regulatio ns issued under the authority of the imple me nting legislatio n regarding Article 3 of the CAT. The Departments anticipate that a large number of aliens who would be subject to a proclamatio n-based ineligib ility bar would be subject to expedited-remo va l proceedings. Accordingly, this rule ensures that asylum officers and immigratio n judges account for such aliens' ineligib ility for asylum within the expedited-remova l process, so that aliens subject to such a bar will be processed swiftly. Furthermore, the rule continues to afford protection from removal for individ ua ls who establish that they are more likely than not to be persecuted or tortured in the country of removal. Aliens rendered ineligib le for asylum by this interim rule and who are referred for an intervie w in the expedited-remova l process are still eligib le to seek withhold ing of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or protections under the regulatio ns issued under the authority of the imple me nting legisla tio n regarding Article 3 of the CAT. Such aliens could pursue such claims in proceedings before an immigratio n 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 Inte rim Rule The Attorney General and the Secretary of Homeland Security publish this joint interim rule pursuant to their respective authoritie s concerning asylum determinatio ns. The Homeland Security Act of 2002, Public Law 107296, as amended, transferred many functio ns related to the execution of federal immigra tio n law to the
11 newly created Department of Homeland Security. The Homeland Security Act of 2002 charges the Secretary ''with the administratio n and enforcement of this chapter and all other laws relating to the immigra tio n and naturalizatio n 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 applicatio ns, i.e., applicatio ns for asylum made outside the removal context. See 6 U.S.C. 271(b)(3). Those authoritie s have been delegated to U.S. Citize nship and Immigratio n Services (''USCIS''). USCIS asylum officers determine in the first instance whether an alien's affirma tive asylum applicatio n should be granted. See 8 CFR 208.9. But the Homeland Security Act of 2002 retained authority over certain individ ua l immigra tio n adjudicatio ns (includ ing those related to defensive asylum applicatio ns) in DOJ, under the Executive Office for Immigratio n Review (''EOIR'') and subject to the direction and regulatio n of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). Thus, immigratio n judges within DOJ continue to adjudicate all asylum applicatio ns made by aliens during the removal process (defensive asylum applicatio ns), and they also review affirma tive asylum applicatio ns referred by USCIS to the immigra tio n court. See INA 101(b)(4), 8 U.S.C. 1101(b)(4); 8 CFR 1208.2; Dhak al v . Sessions, 895 F.3d 532, 536''37 (7th Cir. 2018) (describing affirmative and defensive asylum processes). The Board of Immigra tio n Appeals (''BIA'' or ''Board''), also within DOJ, in turn hears appeals from immigratio n judges' decisions. 8 CFR 1003.1. In addition, the INA provides ''[t]hat determina tio n 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).
12 This broad divisio n of functio ns and authorities informs the background of this interim rule. B. Le gal Frame work for Asylum Asylum is a form of discretiona ry 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 immigratio n status derivative ly. 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 requireme nts for naturaliza tio n of lawful permanent residents). Aliens who are granted asylum are authorized to work in the United States and may receive certain financ ia l assistance from the federal governme nt. 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 employme nt authorizatio n 150 days after filing a complete applicatio n for asylum). Aliens applying for asylum must establish that they meet the definitio n 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 ''discretio na ry relief from removal''); Delgado v . Muk asey, 508 F.3d 702,
13 705 (2d Cir. 2007) (''Asylum is a discretiona ry form of relief . . . . Once an applicant has established eligib ility . . . it remains within the Attorney General's discretion to deny asylum. ''). Because asylum is a discretiona ry form of relief from removal, the alien bears the burden of showing both eligib ility 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 ''physica lly 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-remova l 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 definitio n 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 nationa lity and ''is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religio n, nationality, membership in a particular social group, or politica l 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
14 statutory bars to granting asylum and is not subject to any ''additiona l limita tio ns and conditions . . . under which an alien shall be ineligib le for asylum'' established by a regulatio n 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 nonpolitica l 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-re lated inadmissib ility 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 applicatio n for relief may apply,'' the applicant in immigratio n 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 . Muk asey, 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).
15 Because asylum is a discretionary benefit, aliens who are eligib le for asylum are not automatica lly entitled to it. After demonstrating eligib ility, 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 definitio n of a ''refugee''). The asylum statute's grant of discretion ''is a broad delegation of power, which restricts the Attorney General's discretio n to grant asylum only by requiring the Attorney General to first determine that the asylum applicant is a 'refugee.''' Komarenk o v . INS, 35 F.3d 432, 436 (9th Cir. 1994), ov erruled on other grounds by Abebe v . Muk asey, 554 F.3d 1203 (9th Cir. 2009) (en banc) (per curiam). Immigra tio n 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 discretio nary factor'' and ''circumve ntio n 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 availab ility of asylum has long been qualified both by statutory bars and by administrative discretion to create additiona l bars. Those bars have developed over time in a back-and-forth process between Congress and the Attorney General. The origina l asylum provisio ns, as set out in the Refugee Act of 1980, Public Law 96212, simply
16 directed the Attorney General to ''establish a procedure for an alien physica lly 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 imple me nting regulatio ns, the Attorney General, in his discretion, established several mandatory bars to granting asylum that were modeled on the mandatory bars to eligib ility for withhold ing of deportation under the existing section 243(h) of the INA. See Refugee and Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980) (''The applicatio n will be denied if the alien does not come within the definitio n of refugee under the Act, is firmly resettled in a third country, or is within one of the undesirab le 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 regulatio ns required denial of an asylum applicatio n 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, religio n, nationa lity, membership in a particula r group, or politica l opinion''; (4) the alien had ''been convicted by a final judgment of a particula rly 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-politica l crime outside the United States prior to the arrival of the alien in the
17 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 substantia lly amended the asylum regulatio ns 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 Withho ld ing 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-resettle me nt bar); Komarenk o, 35 F.3d at 436 (upholding particula rly-serio us-crime bar). In the Immigra tio n Act of 1990, Public Law 101649, Congress added an additiona l mandatory bar to applying for or being granted asylum for ''[a]n[y] alien who has been convicted of an aggravated felony. '' Pub. L. 101649, sec. 515. In IIRIRA and the Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104132, Congress amended the asylum provisio ns 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 multila tera l 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 applicatio n denied. Pub. L. 104208, 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
18 Attorney General's asylum regulatio ns. 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 nonpolitica l 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 inadmissib le 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.'' Pub. L. 104208, 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].'' Pub. L. 104208, 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 nonpolitica l offenses. '' While Congress prescribed that all aggravated felonies constitute particularly serious crimes, Congress further provided that the Attorney General may ''designate by regulatio n offenses that will be considered'' a ''particula rly serious crime'' that ''constitute s 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 authorize s the Board to identify additiona l particularly serious crimes (beyond aggravated felonies) through case-by-case adjudicatio n. 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
19 designate by regulatio n offenses that constitute ''a serious nonpolitic a l 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 regulatio n, to ''establish additiona l limitatio ns and conditio ns, consistent with [section 208 of the INA], under which an alien shall be ineligib le 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 limita tio ns'' on asylum eligib ility. R-S-C, 869 F.3d at 1187 & n.9. By allowing the impositio n by regulatio n of ''additio na l limita tio ns and conditions, '' the statute gives the Attorney General and the Secretary broad authority in determining what the ''limitatio ns and conditions'' should be. The additiona l limita tio ns on eligib ility must be established ''by regulatio n, '' and must be ''consiste nt 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 eligib ility for asylum based on a ''funda me nta l change in circumsta nces'' and on the ability of an applicant to safely relocate interna lly within the alien's country of nationa lity or of last habitua l 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, includ ing to render aliens ineligib le for asylum based on fraud. See R-S-C,
20 869 F.3d at 1187; Nijjar v . Holder, 689 F.3d 1077, 1082 (9th Cir. 2012) (noting that fraud can be ''one of the 'additiona l limita tio ns . . . under which an alien shall be ineligib le for asylum' that the Attorney General is authorized to establish by regulatio n''). Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), also establishes certain procedures for consideratio n of asylum applicatio ns. But Congress specified that the Attorney General ''may provide by regulatio n for any other conditions or limita tio ns on the consideratio n of an applicatio n for asylum, '' so long as those limitatio ns are ''not inconsiste nt 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) significa nt discretion to adopt additiona l bars to asylum eligib ility. Beyond providing discretion to further define particularly serious crimes and serious nonpolitica l offenses, Congress has provided the Attorney General and Secretary with discretion to establish by regulatio n any additiona l limitatio ns or conditions on eligib ility for asylum or on the consideratio n of applicatio ns for asylum, so long as these limitatio ns are consistent with the asylum statute. D. Othe r Forms of Prote ction Aliens who are not eligib le 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 immigra tio n laws. A defensive applicatio n for asylum that is submitted by an alien in removal proceedings is also deemed an applicatio n for statutory withho ld ing 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 immigra tio n judge may also consider an alien's eligib ility for
21 withho ld ing and deferral of removal under regulatio ns issued pursuant to the authority of the impleme nting legisla tio n regarding Article 3 of the CAT. See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105277, div. G, sec. 2242(b); 8 CFR 1208.3(b); see also 8 CFR 1208.161208.17. 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 Kouljinsk i v . Keisler, 505 F.3d 534, 54445 (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 eligib ility bar adopted by regulatio n, or a discretionary denial of asylum'--the alien may be entitled to statutory withho ld ing 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]ithho ld ing 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 establishe s 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 withho ld ing and CAT protection do not: (1) prohibit the Governme nt 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
22 citize nship ; or (3) afford the same ancillary benefits (such as protection for derivative family members). See R-S-C, 869 F.3d at 1180. E. Imple me ntation of Tre aty Obligations The framework described above is consistent with certain U.S. obligatio ns under the 1967 Protocol Relating to the Status of Refugees (''Refugee Protocol''), which incorporates Articles 2 to 34 of the 1951 Conventio n Relating to the Status of Refugees (''Refugee Convention''), as well as U.S. obligatio ns 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 obligatio ns they contain have been imple me nted through domestic imple me nting legislatio n. For example, the United States has imple me nted the non-refoule me nt provisions of these treaties'--i.e., provisions prohibiting the return of an individ ua l to a country where he or she would face persecution or torture'--through the withho ld ing of removal provisio ns at section 241(b)(3) of the INA and the CAT regulatio ns, 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, Pub. L. 105277, div. G, sec. 2242(b); 8 CFR 208.16(c), 208.17208.18; 1208.16(c), 1208.171208.18. Limitatio ns on the availability of asylum that do not affect the statutory withho ld ing of removal or protection under the CAT regulatio ns 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).
23 Limitatio ns on eligib ility for asylum are also consistent with Article 34 of the Refugee Conventio n, concerning assimilatio n of refugees, as imple me nted 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 eligib ility through regulatio n. Courts have likewise rejected arguments that other provisio ns of the Refugee Conventio n require every refugee to receive asylum. Courts have held, in the context of upholding the bar on eligib ility for asylum in reinstateme nt 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 Conventio n. 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 Conventio n, governing the issuance of internatio na l travel documents for refugees ''lawfully staying'' in a country's territory, mandates that every person who might qualify for statutory withho ld ing must also be granted asylum. Garcia, 856 F.3d at 42; R-S-C, 869 F.3d at 1188. IV. Re gulatory Change s A. Limitation on Eligibility for Asylum for Alie ns Who Contrave ne a Pre side ntial Proclamation unde r Se ction 212(f) or 215(a)(1) of the INA Conce rning the Southe rn Borde r
24 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 eligib ility for asylum for certain aliens who are subject to a presidentia l proclamatio n suspending or imposing limitatio ns 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 contraventio n of such a proclamatio n after the effective date of this rule. The bar would be subject to several further limitatio ns: (1) the bar would apply only prospectively, to aliens who enter the United States after the effective date of such a proclamatio n; (2) the proclamatio n must concern entry at the southern border; and (3) the bar on asylum eligib ility would not apply if the proclamatio n expressly disclaims affecting asylum eligib ility for aliens within its scope, or expressly provides for a waiver or exception that entitle s the alien to relief from the limitatio n on entry imposed by the proclamatio n. The President has both statutory and inherent constitutio na l 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 exclusio n of aliens is a fundame nta l 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 politica l branches of the governme nt, '' and even without congressiona l action, the President may ''act[] to protect the United States from massive illega l immigratio n. '').
25 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 detrimenta l to the interests of the United States, he may by proclamatio n, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigra nts or nonimmigra nts, or impose on the entry of aliens any restrictio ns he may deem to be appropriate.'' 8 U.S.C. 1182(f). ''By its plain langua ge, [8 U.S.C.] § 1182(f) grants the President broad discretion to suspend the entry of aliens into the United States,'' includ ing the authority ''to impose additiona l limita tio ns on entry beyond the grounds for exclusio n set forth in the INA.'' Trump v . Hawaii, 138 S. Ct. 2392, 240812 (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 illega l Haitian immigra nts the ability to disembark on our shores,'' thereby preventing them from entering 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, regulatio ns, and orders, and subject to such limitatio ns and exceptions as the President may prescribe.'' 8 U.S.C. 1185(a)(1). The presidentia l 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) (''Interd ictio n of Illega l Aliens''); Exec. Order 12324 (Sept. 29, 1981) (''Interdic tio n of Illega l Aliens'') (revoked
26 and replaced by Exec. Order 12807)'--as was the proclamatio n upheld in Trump v . Hawaii, see 138 S. Ct. at 2405. Other presidentia l orders have solely cited section 215(a)(1) as authority. See, e.g., Exec. Order 12172 (Nov. 26, 1979) (''Delegatio n 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 proclamatio n 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 determinatio n that it would be against the nationa l interest for them to do so. For example, the proclamatio n and order that the Supreme Court upheld in Sale, Proc. 4865 (Sept. 29, 1981) (''High Seas Interdictio n of Illega l Aliens''); Exec. Order 12324, directed the Coast Guard to interdict the boats of tens of thousands of migra nts 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 undocume nted 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 immigratio n laws.'' Exec. Order 12807, sec. 2(c). An alien whose entry is suspended or restricted under such a proclamatio n, but who nonetheless reaches U.S. soil contrary to the President's determina tio n that the alien should not be in the United States, would remain subject to various procedures under
27 immigra tio n laws. For instance, an alien subject to a proclamatio n who neverthe less entered the country in contraventio n 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 physica lly 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 proclamatio ns 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) (''Enha nc ing Vetting Capabilitie s and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats'') (''Nothing in this proclamatio n shall be construed to limit the ability of an individ ua l to seek asylum, refugee status, withho ld ing of removal, or protection under the Conventio n 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 regulatio n'' to ''establish additiona l limitatio ns and conditions, consistent with [section 208 of the INA], under which an alien shall be ineligib le for asylum,'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C), and to set conditions or limita tio ns on the consideratio n of an applicatio n 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 ineligib le for a grant of asylum any alien who is
28 subject to a proclamatio n suspending or restricting entry along the southern border with Mexico, but who nonetheless enters the United States after such a proclamatio n goes into effect. Such an alien would have engaged in actions that undermine a particularized determinatio n in a proclamatio n that the President judged as being required by the nationa l interest: that the alien should not enter the United States. The basis for ineligib ility in these circumsta nces would be the Departments' conclusio n that aliens who contravene such proclamatio ns should not be eligib le for asylum. Such proclamatio ns generally reflect sensitive determina tio ns regarding foreign relations and nationa l 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 immigratio n laws, but have also undercut the efficac y of a measure adopted by the President based upon his determina tio n of the nationa l interest in matters that could have significa nt implicatio ns for the foreign affairs of the United States. For instance, previous proclamatio ns were directed solely at Haitian migrants, nearly all of whom were already inadmissib le by virtue of other provisio ns of the INA, but the proclamatio n suspended entry and authorized further measures to ensure that such migra nts did not enter the United States contrary to the President's determinatio n. See, e.g., Proc. 4865; Exec. Order 12807. In the case of the southern border, a proclamatio n that suspended the entry of aliens who crossed between the ports of entry would address a pressing national problem concerning the immigratio n system and our foreign relations with neighboring countries. Even if most of those aliens would already be inadmissib le under our laws, the proclamatio n would impose limita tio ns on entry for the period of the suspension against a
29 particular class of aliens defined by the President. That judgment would reflect a determinatio n that certain ille ga l entrants'--na me ly, those crossing between the ports of entry on the southern border during the duration of the proclamatio n'--were a source of particular concern to the nationa l interest. Furthermore, such a proclamatio n could authorize additiona l measures to prevent the entry of such inadmissib le aliens, again reflecting the national concern with this subset of inadmissib le aliens. The interim fina l rule reflects the Departments' judgment that, under the extraordinary circumsta nces presented here, aliens crossing the southern border in contraventio n of such a proclamatio n should not be eligib le for a grant of asylum during the period of suspension or limitatio n on entry. The result would be to channel to ports of entry aliens who seek to enter the United States and assert an intentio n to apply for asylum or a fear of persecution, and to provide for consideratio n of those statements there. Significa ntly, this bar to eligib ility for a grant of asylum would be limited in scope. This bar would apply only prospective ly. This bar would further apply only to a proclamatio n concerning entry along the southern border, because this interim rule reflects the need to facilitate urgent action to address current conditio ns at that border. This bar would not apply to any proclamatio n that expressly disclaimed an effect on eligib ility for asylum. And this bar would not affect an applicant who is granted a waiver or is excepted from the suspension under the relevant proclamatio n, or an alien who did not at any time enter the United States after the effective date of such proclamatio n. Aliens who enter in contraventio n of a proclamatio n will not, however, overcome the eligib ility bar merely because a proclamatio n has subsequently ceased to have effect. The alien still would have entered notwithsta nd ing a proclamatio n at the time the alien
30 entered the United States, which would result in ineligib ility for asylum (but not for statutory withho ld ing or for CAT protection). Retaining eligib ility for asylum for aliens who entered the United States in contraventio n of the proclamatio n, 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 governme nt resources dedicated to apprehension efforts. This restrictio n on eligib ility to asylum is consistent with section 208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). The regulatio n establishes a conditio n on asylum eligib ility, 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 proclamatio n that suspends the entry of aliens who crossed between the ports of entry at the southern border, the restrictio n 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 proclamatio n suspending or limiting entry. B. Scre e ning Proce dure s in Expe dite d Re moval for Alie ns Subje ct to Proclamations The rule would also modify certain aspects of the process for screening claims for protection asserted by aliens who have entered in contraventio n of a proclamatio n 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
31 persecution at an initia l screening intervie w. At present, those aliens are often released into the interio r of the United States pending adjudicatio n of such claims by an immigra tio n court in section 240 proceedings, especially if those aliens travel as family units. Once an alien is released, adjudicatio ns 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 substantia l proportion of aliens subject to an entry proclamatio n concerning the southern border would be subject to expedited removal, since approximate ly 234,534 aliens in FY 2018 who presented at a port of entry or were apprehended at the border were referred to expedited-remo va l proceedings.1 The procedural changes within expedited removal would be confined to aliens who are ineligib le for asylum because they are subject to a regulatory bar for contravening an entry proclamatio n. 1. Under existing law, expedited-remova l procedures'--streamlined procedures for expeditiously reviewing claims and removing certain aliens'--app ly to those individ ua ls who arrive at a port of entry or those who have entered illega lly and are encountered by an immigratio n 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 inadmissib le 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 documentatio n through 1 As noted below, in FY 2018, approximate ly 171,511 aliens entered ille ga lly between ports of entry, were apprehended by CBP, and were placed in expedited removal. Approximate ly 59,921 inadmissib le 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.
32 misrepresentatio n or lacks such documentatio n altogether. Thus, an alien encountered in the interior of the United States who entered in contraventio n of a proclamatio n 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 regulatio ns imple me nting 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-remova l context for screening an alien's eligib ility for asylum. When these provisions were being debated in 1996, legisla tors expressed particular concern that ''[e]xisting procedures to deny entry to and to remove ille ga l 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' immigratio n. '' See H.R. Rep. No. 104469, 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 Immigratio n and Nationality Act to make it easier to deny admissio n to inadmissib le aliens and easier to remove deportable aliens from the United States.'' Id. at 157; see Am. Immigration Lawyers Ass'n v . Reno, 18 F. Supp. 2d 38, 41 (D.D.C. 1998), aff'd, 199 F.3d 1352 (D.C. Cir. 2000) (rejecting several constitutio na l challenges to IIRIRA and describing the expedited-remo va l process as a ''summary removal process for adjudicating the claims of aliens who arrive in the United States without proper documentatio n''). Congress thus provided that aliens ''inadmissib le 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 intentio n to apply for asylum under [8 U.S.C.
33 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 eligib ility for an affirma tive grant of asylum and its attendant benefits, not to statutory withho ld ing 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 ''significa nt 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 eligib ility 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-merito rio us cases so that only applicants with a likelihood of success will proceed to the regular asylum process.'' H.R. Rep. No. 10469, at 158. If the asylum officer determines that the alien lacks a credible fear, then the alien may request review by an immigratio n judge. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). If the immigratio n judge concurs with the asylum officer's negative credible-fear determinatio n, 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 immigra tio n judge determines that the alien has a credible fear'--i.e., ''a significa nt possibility . . . that the alien could establish eligib ility
34 for asylum, '' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)'--the n the alien, under current regulatio ns, is placed in section 240 proceedings for a full hearing before an immigra tio n judge, with appeal availab le 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 regulatio ns imple me nting this framework. By contrast, section 235 of the INA is silent regarding procedures for the granting of statutory withho ld ing of removal and CAT protection; indeed, section 235 predates the legislatio n directing impleme nta tio n of U.S. obligatio ns under Article 3 of the CAT. See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105277, sec. 2242(b) (requiring imple me ntatio n of CAT); IIRIRA, Pub. L. 104208, sec. 302 (revising section 235 of the INA to include procedures for dealing with inadmissib le aliens who intend to apply for asylum). The legal standards for ultimate ly granting asylum on the merits versus statutory withho ld ing or CAT protection are also differe nt. Asylum requires an applicant to ultimate ly establish a ''well-fo unded 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 withho ld ing or CAT protection. See INS v . Stev ic, 467 U.S. 407, 425, 429''30 (1984); Santosa v . Muk asey, 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 eligib ility for asylum are not necessarily eligib le for statutory withho ld ing or CAT protection.
35 Current regulatio ns instruct USCIS adjudicators and immigratio n judges to treat an alien's request for asylum in expedited-remo va l proceedings under section 1225(b) as a request for statutory withho ld ing 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-remova l proceedings, ''credible fear of persecution'' is defined to mean a ''significa nt possibility'' that the alien ''could establish eligib ility for asylum under section 1158,'' not CAT or statutory withho ld ing. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Regulatio ns neverthe less have generally provided that aliens in expedited removal should be subject to the same process for considering statutory withho ld ing 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 Immigra tio n and Naturalizatio n Service provided for claims for statutory withho ld ing of removal and CAT protection to be considered in the same expedited-remova l proceedings as asylum, the result was that if an alien showed that there was a significa nt possibility of establishing eligib ility for asylum and was therefore referred for removal proceedings under section 240 of the INA, any potential statutory withho ld ing 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 circumve nt meritle ss claims. '' Regulatio ns Concerning the Conventio n Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999). But while the INA authorize s the Attorney General and Secretary to provide for consideratio n of statutory withho ld ing and CAT claims together with asylum claims or other matters that may be considered in
36 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, regulatio ns also have provided for a distinc t ''reasonable fear'' screening process for certain aliens who are categorically ineligib le for asylum and can thus make claims only for statutory withho ld ing or CAT protections. See 8 CFR 208.31. Specifica lly, if an alien is subject to having a previous order of removal reinstated or is a non-permanent resident alien subject to an administra tive order of removal resulting from an aggravated felony convictio n, then he is categorically ineligib le for asylum. See id. § 208.31(a), (e). Such an alien can be placed in withho ld ing-only proceedings to adjudicate his statutory withho ld ing 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. § 208.31(c), (e). Reasonable fear is defined by regulatio n to mean a ''reasonable possibility that [the alien] would be persecuted on account of his or her race, religio n, nationality, membership in a particular social group or politica l opinion, or a reasonable possibility that he or she would be tortured in the country of removal. '' Id. § 208.31(c). ''This . . . screening process is modeled on the credible-fear screening process, but requires the alien to meet a higher screening standard.'' Regulatio ns Concerning the Conventio n 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 regulatio ns as providing ''fair and effic ie nt procedures'' in reasonable-fear screening that would comport with U.S. internatio na l obligatio ns). Significa ntly, when establishing the reasonable-fear screening process, DOJ explained that the two affected categories of aliens should be screened based on the
37 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 ineligib le for asylum, '' and may be entitled only to statutory withho ld ing of removal or CAT protection. Regulatio ns Concerning the Convention Against Torture, 64 FR at 8485. ''Because the standard for showing entitle me nt to these forms of protection (a probability of persecution or torture) is significa ntly higher than the standard for asylum (a well-founded fear of persecution), the screening standard adopted for initia l consideratio n of withho ld ing and deferral requests in these contexts is also higher.'' Id. 2. Drawing on the established framework for considering whether to grant withho ld ing 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 ineligib le for asylum by virtue of entering in contraventio n of a proclamatio n, but who express a fear of return or seek statutory withho ld ing or CAT protection. The Attorney General and Secretary have broad authority to imple me nt the immigra tio n laws, see INA 103, 8 U.S.C. 1103, includ ing by establishing regulatio ns, see INA 103, 8 U.S.C. 1103(a)(3), and to regulate ''conditio ns or limita tio ns on the consideratio n of an applicatio n for asylum, '' id. 1158(d)(5)(B). Furthermore, the Secretary has the authority'--in her ''sole and unreviewab le discretion, '' the exercise of which may be ''modified at any time'''--to designate additiona l categories of aliens that will be subject to expedited-remo va l procedures, so long as the designated aliens have not been admitted or paroled nor continuo usly 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-remo va l
38 proceedings, as well as to adjust the categories of aliens subject to particula r procedures within the expedited-remo va l framework.2 This rule does not change the credible-fear standard for asylum claims, although the regulatio n would expand the scope of the inquiry in the process. An alien who is subject to a relevant proclamatio n and nonetheless has entered the United States after the effective date of such a proclamatio n in contraventio n of that proclamatio n would be ineligib le for asylum and would thus not be able to establish a ''significa nt possibility . . . [of] eligib ility 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 minima l or mere possibility, of success, would not meet the 'signific a nt 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 immigratio n judge regarding whether the asylum officer correctly determined that the alien was subject to a limitatio n or suspension on entry imposed by a proclamatio n. Further, consistent with section 235(b)(1)(B) of the INA, if the immigratio n judge reversed the asylum officer's determinatio n, the alien could assert the asylum claim in section 240 proceedings. 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; Impleme nta tio n of the Agreement Between the Government of the United States of America and the Governme nt 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 Withhold ing of Removal, 63 FR 31945 (June 11, 1998); Asylum Procedures, 65 FR 76121; Regulatio ns Concerning the Conventio n Against Torture, 64 FR 8478 (Feb. 19, 1999).
39 Aliens determined to be ineligib le for asylum by virtue of contravening a proclamatio n, however, would still be screened, but in a manner that reflects that their only viable claims would be for statutory withho ld ing or CAT protection pursuant to 8 CFR 208.30(e)(2)''(4) and 1208.16(a). After determining the alien's ineligib ility 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 withho ld ing 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 immigratio n judge (just as the alien may under existing 8 CFR 208.30 and 208.31), and would be subject to removal only if the immigra tio n judge agreed with the negative reasonable-fear finding. Conversely, if either the asylum officer or the immigratio n 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 determinatio n for asylum. Employing a reasonable-fear standard in this context, for this category of ineligib le aliens, would be consistent with the Department of Justice's longstand ing rationale that ''aliens ineligib le for asylum, '' who could only be granted statutory withho ld ing 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 Regulatio ns Concerning the Conventio n Against Torture, 64 FR at 8485 (''Because the standard for showing entitle me nt to these forms of protection . . . is significa ntly higher than the standard for asylum . . . the screening standard adopted for initia l consideratio n of withho ld ing and deferral requests in these contexts is also higher. '').
40 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 withhold ing 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 ineligib le for a grant of asylum pursuant to a proclamatio n entry bar. If there is a significa nt possibility that the alien is not subject to the eligib ility bar (and the alien otherwise demonstrates suffic ie nt facts pertaining to asylum eligib ility), then the alien will have established a credible fear. If, however, an alien lacks a significa nt possibility of eligib ility for asylum because of the proclamatio n 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 withho ld ing of removal or CAT protection. An alien subject to the proclamatio n-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 proclamatio n ineligib ility bar to asylum, as well as other claims. If an immigra tio n judge determines that the alien was incorrectly identified as subject to the proclamatio n, the alien will be able to apply for asylum. Such aliens can appeal the immigratio n judge's decision in these proceedings to the BIA and then seek review from a federal court of appeals.
41 Conversely, an alien who is found to be subject to the proclamatio n asylum bar and who does not clear the reasonable-fear screening standard can obtain review of both of those determina tio ns before an immigra tio n judge, just as immigratio n judges currently review negative credible-fear and reasonable-fear determina tio ns. If the immigratio n judge finds that either determinatio n was incorrect, then the alien will be placed into section 240 proceedings. In reviewing the determinatio ns, the immigratio n judge will decide de novo whether the alien is subject to the proclamatio n asylum bar. If, however, the immigratio n judge affirms both determinatio ns, 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 proclamatio n eligib ility 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 reasonable-fear standard as part of those procedures with respect to their statutory withho ld ing and CAT protection claims.3 2. The above process will not affect the process in 8 CFR 208.30(e)(5) for certain existing statutory bars to asylum eligib ility. Under that regulatory provisio n, many aliens who appear to fall within an existing statutory bar, and thus appear to be ineligib le for asylum, can nonethe less be placed in section 240 proceedings if they are otherwise eligib le for asylum and obtain immigra tio n judge review of their asylum claims, followed 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 regulatio ns. An alien stowaway is unlike ly to be subject to 8 CFR 208.13(c)(3) and 1208.13(c)(3) unless a proclamatio n specifica lly 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 incorporatio n of a reasonable-fear standard into the evaluatio n of certain cases under credible-fear procedures, nothing about this screening process or in this interim rule implica tes existing reasonable-fear procedures in 8 CFR 208.31 and 1208.31.
42 by further review before the BIA and the courts of appeals. Specifica lly, with the exceptions of stowaways and aliens entering from Canada at a port of entry (who are generally ineligib le 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 nonethele ss place the alien in proceedings under section 240 of the [INA] for full consideratio n of the alien's claim.'' The langua ge providing that the agency ''shall nonethele ss place the alien in proceedings under section 240 of the [INA]'' was promulgated in 2000 in a final rule imple me nting asylum procedures after the 1996 enactment of IIRIRA. See Asylum Procedures, 65 FR at 76137. The explanatio n for this change was that some commenters suggested that aliens should be referred to section 240 proceedings ''regardless of any apparent statutory ineligib ility under section 208(a)(2) or 208(b)(2)(A) of the [INA]. The Department has adopted that suggestio n and has so amended the regulatio n. '' 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 proclamatio n. 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
43 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 limita tio n or conditio n on asylum eligib ility 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 ineligib ility under section 208(a)(2) or 208(b)(2)(A) of the [INA],'' and did not address future regulatory ineligib ility 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 establishe s an express regulatory provisio n dealing specifica lly with aliens subject to a limitatio n under section 212(f) or 215(a)(1) of the INA. C. Anticipate d Effe cts of the Rule 1. The interim rule aims to address an urgent situatio n at the southern border. In recent years, there has been a significa nt increase in the number and percentage of aliens who seek admissio n 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-remo va l context, and the rates at which such aliens receive a positive credible-fear determinatio n 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
44 for asylum. Moreover, a substantia l 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 ultimate ly are deemed eligib le for, and granted, asylum. In FY 2018, DHS identified some 612,183 inadmissib le 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 inadmissib le aliens who crossed but evaded detection, and interio r enforcement operations conducted by U.S. Immigratio n and Customs Enforceme nt (''ICE''). The vast majority of those inadmissib le aliens'--521,090'--crossed the southern border. Approximate ly 98% (396,579) of all aliens apprehended after ille ga lly crossing between ports of entry made their crossings at the southern border, and 76% of all encounters at the southern border reflect such apprehensio ns. By contrast, 124,511 inadmissib le aliens presented themselves at ports of entry along the southern border, representing 60% of all port traffic for inadmissib le aliens and 24% of encounters with inadmissib le aliens at the southern border. Nationwide, DHS has prelimina rily calculated that throughout FY 2018, approximate ly 234,534 aliens who presented at a port of entry or were apprehended at the border were referred to expedited-remova l proceedings. Of that total, approximate ly 171,511 aliens were apprehended crossing between ports of entry; approximate ly 59,921 were inadmissib le aliens who presented at ports of entry; and approximate ly 3,102 were
45 arrested by ICE and referred to expedited removal.4 The total number of aliens of all nationa lities referred to expedited-remo va l proceedings has significa ntly increased over the last decade, from 161,516 aliens in 2008 to approximate ly 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-remo va l proceedings has increased from 29,206 in FY 2008 (18% of the total 161,516 aliens referred) to approximate ly 103,752 in FY 2018 (44% of the total approximate ly 234,534 aliens referred, an increase of over 300%). In FY 2018, nationa ls of the Northern Triangle represented approximate ly 103,752 (44%) of the aliens referred to expedited-remova l proceedings; approximate ly 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-remo va l statistics for FY 2018 specific to the southern border are not availab le. But the Departments' experience with immigratio n enforceme nt has demonstrated that the vast majority of expedited-remova l actions have also occurred along the southern border. Once in expedited removal, some 97,192 (approximate ly 41% of all aliens in expedited removal) were referred for a credible-fear intervie w 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 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 additiona l numbers of aliens processed at ports of entry. Another approximate ly 130,211 aliens were subject to reinstate me nt, meaning that the alien had previously been removed and then unlawfully entered the United States again. The vast majority of reinstateme nts involved Mexican nationa ls. Aliens subject to reinstateme nt who express a fear of persecution or torture receive reasonable-fear determinatio ns under 8 CFR 208.31.
46 Honduran, 13,433 (14%) were Salvadoran, 24,456 (25%) were Guatema la n, and other nationa lities made up the remaining 28% (the largest proportion of which were 7,761 Indian nationals). In other words: approximate ly 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 (approximate ly 69% of Hondurans, 79% of Salvadorans, and 49% of Guatemala ns). 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 nationa lities compose the remaining 26,763 (28%) referred for credible-fear interviews. Once these 97,192 aliens were intervie wed 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 immigratio n proceedings under section 240, and many of the aliens were released into the interior while awaiting those proceedings.6 As 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 determina tio ns 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 immigra tio n judges completed involving aliens referred for a credible-fear interview while in expedited-remo va l proceedings. 6 Stowaways are the only category of aliens who would receive a positive credible-fear determinatio n 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
47 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 immigra tio n judge, they obtained reversals approximate ly 18% of the time, resulting in some 47,507 cases in which nationals of Northern Triangle countries received positive credible-fear determinatio ns.8 In other words: aliens from Northern Triangle countries ultimate ly received a positive credible-fear determinatio n 89% of the time. Some 6,867 Mexican nationa ls were interviewed; asylum officers gave them a positive credible-fear 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, includ ing 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). Specifica lly, 25,673 Honduran nationa ls 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 determinatio n resulted in a positive find ing, and 10% were denied. Some 13,433 Salvadoran nationals were intervie wed; 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 determina tio n resulted in a positive finding, and 14% were denied. Some 24,456 Guatemala n nationa ls 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 Guatemala n cases involving a merits determinatio n 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 Immigra tion judges in 2018 reversed 18% (288) of negative credible-fear determinatio ns involving Hondurans, 19% (241) of negative credible-fear determina tio ns involving Salvadorans, and 17% (285) of negative credible-fear determina tio ns involving Guatemala ns.
48 determinatio n in 81% of decided cases (4,261), and immigratio n judges reversed an additiona l 91 negative credible-fear determinatio ns, resulting in some 4,352 cases (83% of cases decided on the merits) in which Mexican nationa ls were referred to section 240 proceedings after receiving a positive credible-fear determinatio n. These figure s have enormous consequences for the asylum system writ large. Asylum officers and immigratio n judges devote significa nt resources to these screening interviews, which the INA requires to happen within a fixed statutory timefra me. These aliens must also be detained during the pendency of expedited-remova l 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 intervie w. 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'--ha s 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 determina tio n. 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
49 approximate ly 203,569 total cases pending in the immigratio n 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 nationa ls of Northern Triangle countries (39,940 cases involving Hondurans; 59,702 involving Salvadoran nationa ls; 36,912 involving Guatemala n nationa ls). Another 10,736 cases involved Mexican nationals. In FY 2018, immigra tio n judges completed 34,158 total cases that originated with a credible-fear referral.9 Those aliens were likely referred for credible-fear screening between 2015 and 2018; the vast majority of these cases arose from positive credible-fear determinatio ns as opposed to the subset of cases that were closed in expedited removal and referred for section 240 proceedings. In a significa nt proportion of these cases, the aliens did not appear for section 240 proceedings or did not file an applicatio n for asylum in connectio n with those proceedings. In FY 2018, of the 34,158 completio ns that origina ted with a credible-fear referral, 24,361 (71%) were completed by an immigra tio n judge with the issuance of an order of removal. Of those completed cases, 10,534 involved in absentia removal orders, meaning that in approximate ly 31% of all initia l completio ns 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 applicatio n was filed, meaning 8,553 did not file an asylum applicatio n and failed 9 All descriptio ns of case outcomes before immigra tio n judges reflect initia l case completio ns by an immigratio n judge during the fiscal year unless otherwise noted. All references to applicatio ns for asylum generally involve applicatio ns for asylum, as opposed to some other form of protection, but EOIR statistics do not distinguish between, for instance, the filing of an applicatio n for asylum or the filing of an applicatio n for statutory withho ld ing. As noted, an applicatio n for asylum is also deemed an applicatio n for other forms of protection, and whether an applicatio n will be for asylum or only for some other form of protection is often a post-filing determina tio n made by the immigra tio n judge (for instance, because the one-year filing bar for asylum applies).
50 to appear at a hearing. Further, 40% of all initia l completio ns originating with a credible-fear referral (or 13,595 cases, includ ing the 8,553 aliens just discussed) were completed in FY 2018 without an alien filing an applicatio n for asylum. In short, in nearly half of the cases completed by an immigra tio n 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 applicatio n. Those figure s are consistent with trends from FY 2008 through FY 2018, during which time DHS pursued some 354,356 cases in the immigra tio n courts that involved aliens who had gone through a credible-fear review (i.e., the aliens received a positive credible-fear determinatio n or their closed case was referred for further proceedings). During this period, however, only about 53% (189,127) of those aliens filed an asylum applicatio n, despite the fact that they were placed into further immigra tio n proceedings under section 240 because they alleged a fear during expedited-remova l proceedings. Even among those aliens who received a credible-fear intervie w, filed for asylum, and appeared in section 240 proceedings to resolve their asylum claims'--a category that would logica lly include the aliens with the greatest confidence in the merits of their claims'--o nly a very small percentage received asylum. In FY 2018 immigra tio n judges completed 34,158 cases that originated with a credible-fear referral; only 20,563 of those cases involved an applicatio n for asylum, and immigra tio n 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 applicatio n was filed, and about 36% of cases where the asylum claim was adjudicated on the merits) established that they should be granted asylum. (An
51 additiona l 322 aliens received either statutory withho ld ing or CAT protection.) Because there may be multip le bases for denying an asylum applicatio n and immigratio n judges often make alternative findings for consideratio n of issues on appeal, EOIR does not track reasons for asylum denials by immigratio n judges at a granular level. Nevertheless, experience indicates that the vast majority of those asylum denials reflect a conclusio n that the alien failed to establish a significa nt possibility of persecution, rather than the effect of a bar to asylum eligib ility or a discretionary decision by an immigratio n judge to deny asylum to an alien who qualifie s as a refugee. The statistics for nationals of Northern Triangle countries are particularly illumina ting. In FY 2018, immigra tio n judges in section 240 proceedings adjudicated 20,784 cases involving nationa ls 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 determina tio n 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 applicatio n. Yet in only about 54% of those cases did the alien file an asylum applicatio n. Furthermore, about 38% of aliens from Northern Triangle countries who were referred for credible-fear intervie ws and passed to section 240 proceedings did not appear, and were ordered removed in absentia. Put differe ntly: only a little over half of aliens from Northern Triangle countries who claimed a fear of persecution and passed threshold screening submitted an applicatio n for asylum, and over a third did not appear
52 at section 240 proceedings.10 And only 1,889 aliens from Northern Triangle countries were granted asylum, or approximate ly 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 applicatio ns in their removal proceedings, and about 23% of cases where such aliens' asylum claims were adjudicated on the merits. Specifica lly, in FY 2018, 536 Hondurans, 408 Guatema la ns, and 945 Salvadorans who initia lly were referred for a credible-fear intervie w (whether in FY 2018 or earlier) and progressed to section 240 proceedings were granted asylum. The Departments thus believe that these numbers underscore the major costs and ineffic ienc ies of the current asylum system. Again, numbers for Northern Triangle nationa ls'--who represent the vast majority of aliens who claim a credible fear'--illumina te 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 intervie ws in FY 2018, 47,507 received a positive credible-fear finding from the asylum officer or immigratio n judge. (Another 10,357 cases were administrative ly closed, some of which also may have been referred to section 240 proceedings.) Those 10 These percentages are even higher for particular nationa litie s. In FY 2018, immigra tio n judges adjudicated 7,151 cases involving Hondurans whose cases origina ted with a credible-fear referral in expedited-remova l proceedings. Of that 7,151, only 49% (3,509) filed an applicatio n for asylum, and 44% (3,167) had their cases completed with an in absentia removal order because they failed to appear. Similarly, immigratio n judges adjudicated 5,382 cases involving Guatemala ns whose cases origina ted with a credible-fear referral; only 46% (2,457) filed an asylum applicatio n, and 41% (2,218) received in absentia removal orders. The 8,251 Salvadoran cases had the highest rate of asylum applicatio ns (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, immigra tio n judges adjudicated 3,307 cases involving Mexican nationa ls who progressed to section 240 proceedings after being referred for a credible-fear interview; 49% of them filed applicatio ns for asylum in these proceedings, and 25% of the total cases resulted in an in absentia removal order.
53 aliens will remain in the United States to await section 240 proceedings while immigra tio n judges work through the current backlog of nearly 800,000 cases'--136,554 of which involve nationa ls of Northern Triangle countries who passed through credible-fear screening intervie ws. Immigratio n judges adjudicated 20,784 cases involving such nationa ls of Northern Triangle countries in FY 2018; slightly under half of those aliens did not file an applicatio n for asylum, and over a third were screened through expedited removal but did not appear for a section 240 proceeding. Even when nationa ls of Northern Triangle countries who passed through credible-fear screening applied for asylum (as 11,307 did in cases completed in FY 2018), immigratio n judges granted asylum to only 1,889, or 17% of the cases where such aliens filed asylum applicatio ns in their removal proceedings. Immigra tio n judges found in the overwhelming majority of cases that the aliens had no significa nt possibility of persecution. These existing burdens suggest an unsustainab ly ineffic ie nt 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 documentatio n and thereafter trigger credible-fear screening procedures and obtain release into the interior. The United States has been engaged in ongoing diplomatic negotiatio ns with Mexico and the Northern Triangle countries (Guatema la, El Salvador, and Honduras) about the problems on the southern border, but those negotiatio ns have, to date, proved unable to meaningfully improve the situatio n. 2. In combinatio n with a presidentia l proclamatio n directed at the crisis on the southern border, the rule would help ameliorate the pressures on the present system.
54 Aliens who could not establish a credible fear for asylum purposes due to the proclamatio n-based eligib ility bar could nonethe less seek statutory withho ld ing 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 determinatio ns (i.e., made a positive or negative determinatio n)'--a smaller number because the current determinatio ns are limited to the narrow categories of aliens described above. Of those determinatio ns, USCIS found a reasonable fear in 45% of cases in 2018, and 48% of cases in 2017. Negative reasonable-fear determina tio ns were then subject to further review, and immigratio n judges reversed approximate ly 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 filte r those aliens eligib le for that form of protection. Even assuming that grant rates for statutory withho ld ing 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 significa ntly 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 ultima te ly 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 violatio n of a relevant proclamatio n, the applicatio n of the rule's bar to eligib ility for asylum in the credible-fear screening process (combined with the applicatio n of the reasonable-fear standard to statutory withho ld ing and CAT claims) would reduce the number of cases referred to section 240 proceedings. Finally, the Departments emphasize that this rule
55 would not prevent aliens with claims for statutory withho ld ing 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 proclamatio n 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 proclamatio n, and employing a bifurcated credible-fear analysis for the asylum claim and reasonable-fear review of the statutory withho ld ing and CAT claims, will likely not be unduly burdensome. Although DHS has generally not applied existing mandatory bars to asylum in credible-fear determinatio ns, asylum officers currently probe for this informatio n and note in the record where the possibility exists that a mandatory bar may apply. Though screening for proclamatio n-based ineligib ility for asylum may in some cases entail some additiona l 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 proclamatio n. USCIS asylum officers and EOIR immigra tio n judges have almost two decades of experience applying the reasonable-fear standard to statutory withho ld ing 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 Immigratio n Judges, et al., from The Office of the Chief Immigratio n Judge, Executive Office for Immigratio n Review at 6 (May 14, 1999) (explaining similarities between credible-fear and reasonable-fear proceedings for immigra tio n judges). That said, USCIS estimates that asylum officers have historic a lly averaged four to five credible-fear interviews and completio ns per day, but only two to three reasonable-
56 fear case completio ns per day. Comparing this against current case processing targets, and depending on the number of aliens who contravene a presidentia l proclamatio n, such a change might result in the need to increase the number of officers required to conduct credible-fear or reasonable-fear screenings to mainta in current case completio n goals. However, current reasonable-fear interviews are for types of aliens (aggravated felons and aliens subject to reinstate me nt) for whom relevant crimina l and immigratio n records take time to obtain, and for whom additiona l intervie wing and administrative processing time is typically required. The populatio n of aliens who would be subject to this rule would generally not have the same type of crimina l and immigra tio n records in the United States, but additiona l intervie wing time might be necessary. Therefore, it is unclear whether these averages would hold once the rule is imple me nted. If an asylum officer determines that credible fear has been established but for the existence of the proclamatio n bar, and the alien seeks review of such determinatio n before an immigra tio n judge, DHS may need to shift additiona l resources towards facilita ting such review in immigratio n court in order to provide records of the negative credible-fear determinatio n to the immigratio n court. However, ICE attorneys, while sometimes present, generally do not advocate for DHS in negative credible-fear or reasonable-fear reviews before an immigratio n judge. DHS would, however, also expend additiona l resources detaining aliens who would have previously received a positive credible-fear determinatio n and who now receive, and challe nge, a negative credible-fear and reasonable-fear determina tio n. Aliens are generally detained during the credible-fear screening, but may be eligib le for parole or release on bond if they establish a credible fear. To the extent that the rule may
57 result in lengthier interviews for each case, aliens' length of stay in detention would increase. Furthermore, DHS anticipa tes that more negative determina tio ns would increase the number of aliens who would be detained and the length of time they would be detained, since fewer aliens would be eligib le 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 determinatio ns, and would thus be subject to immed ia te removal, DHS will incur increased and more immed iate costs for enforceme nt and removal of these aliens. That cost would be counterbala nced by the fact that it would be considerably more costly and resource-inte nsive to ultimate ly remove such an alien after the end of section 240 proceedings, and the desirability of promoting greater enforcement of the immigra tio n laws. Attorneys from ICE represent DHS in full immigratio n proceedings, and immigra tio n 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 immigra tio n proceedings, such a development will allow DOJ and ICE attorney resources to be reallocated to other immigratio n proceedings. The additiona l bars to asylum are unlike ly to result in immigratio n judges spending much additiona l time on each case where the nature of the proclamatio n bar is straightforward to apply. Further, there will likely be a decrease in the number of asylum hearings before immigratio n judges because certain respondents will no longer be eligib le for asylum and DHS will likely refer fewer cases to full immigra tio n proceedings. If DHS officers identify the proclamatio n-based bar to asylum (before EOIR has acquired jurisdic tio n over the case), EOIR anticipa tes a reduction in both in-court and out-of-court time for immigratio n judges.
58 A decrease in the number of credible-fear findings and, thus, asylum grants would also decrease the number of employme nt authoriza tio n documents processed by DHS. Aliens are generally eligib le to apply for and receive employme nt authoriza tio n and an Employme nt Authorizatio n 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 presidentia l proclamatio ns would also be expected to have a deterrent effect that could lessen future flows of illega l immigra tio n. 3. The Departments are not in a position to determine how all entry proclamatio ns 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-remo va l proceedings and may thereby be placed on a path to release into the interior of the United States. The President has announced his intentio n 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 presidentia l action so as to illuminate how the rule would be applied in those circumsta nce s. a. Effects on Aliens. Such a proclamatio n, coupled with this rule, would have the most direct effect on the more than approximate ly 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-
59 removal proceedings.11 If such aliens contravened a proclamatio n suspending their entry unless they entered at a port of entry, they would become ineligib le for asylum, but would remain eligib le for statutory withho ld ing 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 eligib le for asylum and would proceed through the existing credible-fear screening process. Such an applicatio n 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-remova l 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 informa tio n about which ports were most capable of swift processing. Such an applicatio n of this rule could also affect aliens who apply for asylum affirma tive ly or in removal proceedings after entering through the southern border. Some 11 The Departments estimated this number by using the approximate ly 171,511 aliens in FY 2018 who were referred to expedited removal after crossing illega lly between ports of entry and being apprehended by CBP. That number excludes the approximate ly 3,102 additiona l aliens who were arrested by ICE, because it is not clear at this time whether such aliens were ultimate ly processed at a port of entry. The Departments also relied on the fact that approximate ly 41% of aliens in expedited removal in FY 2018 triggered credible-fear screening. 12 The Departments estimated this number by using the approximate ly 59,921 aliens in FY 2018 who were referred to expedited removal after presenting at a port of entry. That number excludes the approximate ly 3,102 additiona l aliens who were arrested by ICE, because it is not clear at this time whether such aliens were ultima te ly processed at a port of entry. The Departments also relied on the fact that approximate ly 41% of aliens in expedited removal in FY 2018 triggered credible-fear screening.
60 of those asylum grants would become denials for aliens who became ineligib le for asylum because they crossed ille ga lly in contraventio n of a proclamatio n effective before they entered. Such aliens could, however, still obtain statutory withho ld ing of removal or CAT protection in section 240 proceedings. Finally, such a proclamatio n could also affect the thousands of aliens who are granted asylum each year. Those aliens' cases are equally subject to existing backlogs in immigra tio n courts, and could be adjudicated more swiftly if the number of non-meritorio us cases declined. Aliens with meritorio us claims could thus more expeditio usly receive the benefits associated with asylum. b. Effects on the Departments' Operations. Applying this rule in conjunctio n with a proclamatio n that channeled aliens seeking asylum to ports of entry would likely create significa nt overall effic ie nc ies in the Departments' operations beyond the general effic ie nc ies discussed above. Channeling even some proportion of aliens who currently enter illega lly and assert a credible fear to ports of entry would, on balance, be expected to help the Departments more effective ly leverage their resources to promote orderly and effic ie nt processing of inadmissib le aliens. At present, CBP dedicates enormous resources to attempting to apprehend aliens who cross the southern border illega lly. 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 mountaino us 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
61 for processing'--whic h could be hours away. Family units apprehended after crossing illega lly present additiona l logistica l challe nges, and may require additiona l agents to assist with the transport of the illega l 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 transportatio n instead of patrolling. At the Border Patrol station, a CBP agent obtains an alien's fingerp rints, 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 coordinatio n with DOJ, as to whether to charge the alien with an immigra tio n-re la ted crimina l offense. Further, agents must decide whether to apply expedited-remova l procedures, to pursue reinstate me nt 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-remo va l proceedings, the alien is expeditio usly transferred to ICE custody in complia nce with federal law. The distance between ICE detention facilities and USBP stations, however, varies. Asylum officers and immigra tio n judges review negative credible-fear findings during expedited-remova l proceedings while the alien is in ICE custody. By contrast, CBP officers are able to employ a more orderly and streamlined process for inadmissib le 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
62 admissio n 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 admissib ility, see INA 235(b)(2), 8 U.S.C. 1225(b)(2), that process takes approximate ly the same amount of time as CBP's process for obtaining details from aliens apprehended between ports of entry. Just as for illega l entrants, CBP officers at ports of entry must decide whether inadmissib le 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 imple me nt Congress's statutory mandate to detain such aliens during the pendency of expedited-remova l 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 approximate ly 70,000 aliens per year who cross illega lly 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 additiona l 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 illega l 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 inadmissib le aliens who present at ports of entry today are Mexican nationa ls, who rarely claim a credible fear and who accordingly can be processed and admitted or removed quickly.
63 Furthermore, the overwhelming number of aliens who would have an incentive under the rule and a proclamatio n to arrive at a port of entry rather than to cross ille ga lly are from third countries, not from Mexico. In FY 2018, CBP apprehended and referred to expedited removal an estimated 87,544 Northern Triangle nationa ls and an estimated 66,826 Mexican nationa ls, but Northern Triangle nationa ls assert a credible fear over 60% of the time, whereas Mexican nationa ls assert a credible fear less than 10% of the time. The Departments believe that it is reasonable for third-country aliens, who appear highly unlike ly 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 impossib le if large proportions of third-country nationals continue to cross the southern border illega lly. To be sure, some Mexican nationa ls 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 withho ld ing of removal or CAT protection if they crossed illega lly, which would allow them a safeguard against persecution. Moreover, only 178 Mexican nationa ls received asylum in FY 2018 after initia lly asserting a credible fear of persecution in expedited-remo va l proceedings, indicating that the category of Mexican nationa ls most likely to be affected by the rule and a proclamatio n would also be highly unlike ly to establish eligib ility for asylum. Re gulatory Re quire me nts A. Administrativ e Procedure Act
64 While the Administrative Procedure Act (''APA'') generally requires agencies to publish notice of a proposed rulemak ing 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 impracticab le, 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 emergenc y situatio ns, or in circumsta nces 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 immigra tio n-re la ted 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 significa nt discretio n to ''modify at any time'' the classes of aliens 13 See, e.g., Visas: Documenta tio n of Nonimmigra nts Under the Immigratio n and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb. 4, 2016) (interim rule citing good cause to immed iate ly require additiona l documentatio n from certain Caribbean agricultura l workers to avoid ''an increase in applicatio ns for admissio n in bad faith by persons who would otherwise have been denied visas and are seeking to avoid the visa requireme nt and consular screening process during the period between the publicatio n of a proposed and a final rule''); Suspending the 30-Day and Annual Interview Requireme nts From the Special Registratio n Process for Certain Nonimmigra nts, 68 FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming good cause exception for suspending certain automatic registratio n requirements for nonimmigra nts because ''witho ut [the] regulatio n approximate ly 82,532 aliens would be subject to 30-day or annual re-registratio n interviews'' over six months).
65 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 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 impracticab le and contrary to the public interest. The Departments have determined that immed iate imple me nta tio n of this rule is essential to avoid creating an incentive for aliens to seek to cross the border during pre-promulga tio n 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 immed ia te effect to a rule designating Cuban nationals arriving by air as eligib le for expedited removal because ''pre-promulgatio n 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 ''publica tio n of the rule as a proposed rule, which would signal a significa nt change in policy while permitting continua tio n of the exception for 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 nationa ls ''while admissib ility 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-remo va l program due to ''[t]he large volume of illega l entries, and attempted illega l entries, and the attendant risks to national security presented by these ille ga l 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 traffick ing and alien smuggling operations'').
66 Cuban nationals, could lead to a surge in migratio n of Cuban nationals seeking to travel to and enter the United States during the period between the publicatio n of a proposed and a fina l rule.'' Id. DHS found that ''[s]uch a surge would threaten national security and public safety by diverting valuable Governme nt 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 internatio na l relations. '' Id. DHS concluded: ''[A] surge could result in signific a nt 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: Documentatio n of Nonimmigra nts Under the Immigra tio n and Nationality Act, as Amended, 81 FR at 5907 (find ing the good-cause exception applicable because of similar short-run incentive concerns). These same concerns would apply here as well. Pre-promulga tio n notice and comment, or a delay in the effective date, could lead to an increase in migratio n to the southern border to enter the United States before the rule took effect. For instance, the thousands of aliens who presently enter illega lly and make claims of credible fear if and when they are apprehended would have an added incentive to cross ille ga lly during the comment period. They have an incentive to cross illega lly 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-remova l proceedings. Even if their statements are ultima te ly 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 availab le statistics, the
67 Departments believe that a large proportion of aliens who enter illega lly 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 traffick ing and alien smuggling operations.'' Designating Aliens For Expedited Removal, 69 FR at 48878. Furthermore, there are already large numbers of migrants'--inc lud ing thousands of aliens traveling in groups, primarily from Central America'--e xpected 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 documentatio n 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 developme nts and avoid creating an even larger short-term influx; an extended notice-and-comme nt rulemak ing process would be impractic ab le. Alternative ly, the Departments may forgo notice-and-comme nt procedures and a delay in the effective date because this rule involves a ''foreign affairs functio n 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 implica tes the foreign policy interests of the United States. See, e.g., Exec. Order 13767 (Jan. 25, 2017). Presidentia l proclamatio ns invoking section 212(f) or 215(a)(1) of the INA at the southern border
68 necessarily implica te our relations with Mexico and the President's foreign policy, includ ing sensitive and ongoing negotiatio ns with Mexico about how to manage our shared border.15 A proclamatio n under section 212(f) of the INA would reflect a presidentia l determinatio n that some or all entries along the border ''would [be] detrimenta l 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 eligib ility resting squarely on a proclamatio n issued by the President, confirms the direct relationship between the President's foreign policy decisions in this area and the rule. For instance, a proclamatio n aimed at channeling aliens who wish to make a claim for asylum to ports of entry at the southern border would be inextricab ly related to any negotiatio ns 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 arrangeme nts. As noted, the vast majority of aliens who enter illega lly 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 integra l part of ongoing negotiatio ns with Mexico and Northern Triangle countries over how to address the influx of tens of thousands of migra nts from Central America through Mexico and into the United States. 15 For instance, since 2004, the United States and Mexico have been operating under a memorandum of understand ing 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 Repatriatio n of Mexican Nationals (Feb. 20, 2004). Article 6 of that memorandum reserves the movement of third-country nationa ls through Mexico and the United States for further bilateral negotiatio ns.
69 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 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 negotiatio ns 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 complia nce and enforceme nt mechanisms for those who seek to enter the United States illega lly, includ ing for those who do not avail themselves of earlier offers of protection. Furthermore, the United States and Mexico have been engaged in ongoing discussio ns 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 negotiatio ns. 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-comme nt and delayed-effec tive-date requireme nts in 5 U.S.C. 553. See Am. Ass'n of Ex porters & Importers-Tex tile & Apparel Grp. v . United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) (noting that foreign affairs exception covers agency actions ''linked intima te ly with the Governme nt's overall politica l agenda concerning relations with another country''); Yassini v . Crosland, 618 F.2d 1356, 1361 (9th Cir. 1980) (because an immigratio n directive ''was imple me nting the President's foreign policy,'' the action ''fell within the foreign affairs functio n and good cause exceptions to the notice and comment requireme nts of the APA'').
70 Invoking the APA's foreign affairs exception is also consistent with past rulemak ings. In 2016, for example, in response to diplomatic developments between the United States and Cuba, DHS changed its regulatio ns concerning flights to and from the island via an immed iate ly effective interim final rule. This rulemak ing explained that it was covered by the foreign affairs exception because it was ''consiste nt with U.S. foreign policy goals'''--spec ifica lly, 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 elimina ting an exception to expedited removal for certain Cuban nationa ls. The notice explained that the change in policy was subject to the foreign affairs exception because it was ''part of a major foreign policy initia tive announced by the President, and is central to ongoing diplomatic discussio ns between the United States and Cuba with respect to travel and migratio n 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-comme nt rulemak ing applies. B. Regulatory Flex ibility Act The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforceme nt Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexib ility analysis that describes the effect of the rule on small entitie s (i.e., small businesses, small organizatio ns, and small
71 governme nta l jurisdictio ns). A regulatory flexib ility analysis is not required when a rule is exempt from notice-and-comme nt rulemak ing. C. Unfunded Mandates Reform Act of 1995 This interim final rule will not result in the expenditure by state, local, and tribal governme nts, in the aggregate, or by the private sector, of $100 millio n or more in any one year, and it will not significa ntly or unique ly affect small governme nts. Therefore, no actions were deemed necessary under the provisio ns of the Unfunded Mandates Reform Act of 1995. D. Congressional Rev iew Act This interim final rule is not a major rule as defined by section 804 of the Congressiona l Review Act. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 millio n or more; a major increase in costs or prices; or significa nt adverse effects on competitio n, employme nt, investme nt, productivity, innovatio n, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. E. Ex ecutiv e Order 12866, Ex ecutiv e Order 13563, and Ex ecutiv e Order 13771 (Regulatory Planning and Rev iew) This interim final rule is not a ''significa nt regulatory action'' under section 3(f) of Executive Order 12866 because the rule is exempt under the foreign-a ffa irs 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 signific a nt regulatory action under Executive Order 12866. Though the potential costs, benefits, and transfers associated with some proclamatio ns may have any of a range of economic impacts, this
72 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 proclamatio n 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 regulatio ns to provide that aliens subject to restrictions on entry under certain proclamatio ns are ineligib le 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 applicatio n of an additiona l mandatory bar to asylum, but the scope of that bar will depend on the substance of relevant triggering proclamatio ns. In addition, this rule requires DHS to consider and apply the proclamatio n bar in the credible-fear screening analysis, which DHS does not currently do. Applicatio n 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 ineligib le for asylum and who lack a reasonable fear of persecution or torture will be present in the United States. Finally, DOJ is amending its regulatio ns with respect to aliens who are subject to the proclamatio n bar to asylum eligib ility to ensure that aliens who establish a reasonable fear of persecution or torture may still seek, in proceedings before immigratio n judges, statutory withho ld ing of removal under the INA or CAT protection. Ex ecutiv e Order 13132 (Federalism) This rule will not have substantia l direct effects on the States, on the relationship between the national governme nt and the States, or on the distributio n of power and responsibilities among the various levels of governme nt. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have suffic ie nt
73 federalism implic atio ns to warrant the preparation of a federalism summary impact statement. F. Ex ecutiv e Order 12988 (Civ il Justice Reform) This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act This rule does not propose new or revisions to existing ''collectio n[s] of informatio n'' as that term is defined under the Paperwork Reduction Act of 1995, Public Law 10413, 44 U.S.C. chapter 35, and its imple me nting regulatio ns, 5 CFR part 1320. List of Subje cts 8 CFR Part 208 Administrative practice and procedure, Aliens, Immigratio n, Reporting and recordkeeping requirements. 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigratio n, Legal services, Organizatio n and functio ns (Governme nt agencies). 8 CFR Part 1208 Administrative practice and procedure, Aliens, Immigratio n, Reporting and recordkeeping requirements. Re gulatory Ame ndme nts DEPARTM ENT OF HOM ELAND SECURITY Accordingly, for the reasons set forth in the preamble, the Secretary of Homeland Security amends 8 CFR part 208 as follows:
74 PART 208'--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REM OVAL 1. The authority citation for part 208 continue s to read as fol1ows: Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Public Law 110229, 8 CFR part 2. 2. In § 208.13, add paragraph (c)(3) to read as follows: § 208.13 Establishing asylum e ligibility. * * * * * (c) * * * (3) Additional limitation on eligibility for asylum. For applicatio ns filed after [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], an alien shall be ineligib le for asylum if the alien is subject to a presidentia l proclamatio n or other presidentia l 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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] and the alien enters the United States after the effective date of the proclamatio n or order contrary to the terms of the proclamatio n or order. This limita tio n on eligib ility does not apply if the proclamatio n or order expressly provides that it does not affect eligib ility for asylum, or expressly provides for a waiver or exception that makes the suspension or limitatio n inapplicab le to the alien. 3. In § 208.30, revise the section heading and add a sentence at the end of paragraph (e)(5) to read as follows: § 208.30 Cre dible fe ar de te rminations involving stowaways and applicants for admission who are found inadmissible pursuant to se ction 212(a)(6)(C) or 212(a)(7)
75 of the Act or whose e ntry is limite d or suspe nde d unde r se ction 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 determinatio n with respect to the alien's applicatio n for asylum. The Department shall nonetheless place the alien in proceedings under section 240 of the Act for full consideratio n of the alien's claim for withho ld ing of removal under section 241(b)(3) of the Act, or for withho ld ing 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 intervie w 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 immigra tio n judge review consistent with paragraph (g) of this section, except that the immigra tio n 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: __________________________ Kirstjen M. Nielsen Secretary of Homeland Security
76 Dated: November 5, 2018. DEPARTM ENT 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 IM M IGRATION REVIEW 4. The authority citation for part 1003 continue s 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. 5. In § 1003.42, add a sentence at the end of paragraph (d) to read as follows: § 1003.42 Re vie w of cre dible fe ar de te rmination. * * * * * (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 immigra tio n judge shall first review de novo the determinatio n 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 determina tion. * * * * * PART 1208'--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REM OVAL 6. The authority citation for part 1208 continue s to read as fol1ows: Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Public Law 110229.
77 7. In § 1208.13, add paragraph (c)(3) to read as follows: § 1208.13 Establishing asylum e ligibility. * * * * * (c) * * * (3) Additional limitation on eligibility for asylum. For applicatio ns filed after [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], an alien shall be ineligib le for asylum if the alien is subject to a presidentia l proclamatio n or other presidentia l 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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] and the alien enters the United States after the effective date of the proclamatio n or order contrary to the terms of the proclamatio n or order. This limita tio n on eligib ility does not apply if the proclamatio n or order expressly provides that it does not affect eligib ility for asylum, or expressly provides for a waiver or exception that makes the suspension or limitatio n inapplicab le to the alien. 8. In § 1208.30, revise the section heading and add paragraph (g)(1) to read as follows: § 1208.30 Cre dible fe ar de te rminations involving stowaways and applicants for admission who are found inadmissible pursuant to se ction 212(a)(6)(C) or 212(a)(7) of the Act or whose e ntry is limite d or suspe nde d unde r se ction 212(f) or 215(a)(1) of the Act. * * * * * (g) * * *
78 (1) Rev iew 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 immigratio n judge shall first review de novo the determina tio n that the alien is described in 8 CFR 208.13(c)(3) or 1208.13(c)(3). If the immigratio n judge finds that the alien is not described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), then the immigratio n judge shall vacate the order of the asylum officer, and DHS may commence removal proceedings under section 240 of the Act. If the immigra tio n judge concurs with the credible fear determinatio n that the alien is an alien described in 8 CFR 208.13(c)(3) or 1208.13(c)(3), the immigratio n 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 immigratio n judge will review the find ings under the reasonable fear standard instead of the credible fear standard described in paragraph (g)(2). * * * * * Approved: __________________________ Jefferson B. Sessions III Attorney General Dated: November 6, 2018. [FR Doc. 2018-24594 Filed: 11/8/2018 4:15 pm; Publication Date: 11/9/2018]