Asylum Eligibility and Procedural Modifications

Published date16 July 2019
Citation84 FR 33829
Record Number2019-15246
SectionRules and Regulations
CourtExecutive Office For Immigration Review
Federal Register, Volume 84 Issue 136 (Tuesday, July 16, 2019)
[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]
                [Rules and Regulations]
                [Pages 33829-33845]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-15246]
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                DEPARTMENT OF HOMELAND SECURITY
                8 CFR Part 208
                RIN 1615-AC44
                DEPARTMENT OF JUSTICE
                Executive Office for Immigration Review
                8 CFR Parts 1003 and 1208
                [EOIR Docket No. 19-0504; A.G. Order No. 4488-2019]
                RIN 1125-AA91
                Asylum Eligibility and Procedural Modifications
                AGENCY: Executive Office for Immigration Review, Department of Justice;
                U.S. Citizenship and Immigration Services, Department of Homeland
                Security.
                ACTION: Interim final rule; request for comment.
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                SUMMARY: The Department of Justice and the Department of Homeland
                Security (``DOJ,'' ``DHS,'' or collectively, ``the Departments'') are
                adopting an interim final rule (``interim rule'' or ``rule'') governing
                asylum claims in the context of aliens who enter or attempt to enter
                the United States across the southern land border after failing to
                apply for protection from persecution or torture while in a third
                country through which
                [[Page 33830]]
                they transited en route to the United States. Pursuant to statutory
                authority, the Departments are amending their respective regulations to
                provide that, with limited exceptions, an alien who enters or attempts
                to enter the United States across the southern border after failing to
                apply for protection in a third country outside the alien's country of
                citizenship, nationality, or last lawful habitual residence through
                which the alien transited en route to the United States is ineligible
                for asylum. This basis for asylum ineligibility applies only
                prospectively to aliens who enter or arrive in the United States on or
                after the effective date of this rule. In addition to establishing a
                new mandatory bar for asylum eligibility for aliens who enter or
                attempt to enter the United States across the southern border after
                failing to apply for protection from persecution or torture in at least
                one third country through which they transited en route to the United
                States, this rule would also require asylum officers and immigration
                judges to apply this new bar on asylum eligibility when administering
                the credible-fear screening process applicable to stowaways and aliens
                who are subject to expedited removal under section 235(b)(1) of the
                Immigration and Nationality Act. The new bar established by this
                regulation does not modify withholding or deferral of removal
                proceedings. Aliens who fail to apply for protection in a third country
                of transit may continue to apply for withholding of removal under the
                Immigration and Nationality Act (``INA'') and deferral of removal under
                regulations issued pursuant to the legislation implementing U.S.
                obligations under Article 3 of the Convention against Torture and Other
                Cruel, Inhuman or Degrading Treatment or Punishment.
                DATES:
                 Effective date: This rule is effective July 16, 2019.
                 Submission of public comments: Written or electronic comments must
                be submitted on or before August 15, 2019. Written comments postmarked
                on or before that date will be considered timely. The electronic
                Federal Docket Management System will accept comments prior to midnight
                eastern standard time at the end of that day.
                ADDRESSES: You may submit comments, identified by EOIR Docket No. 19-
                0504, by one of the following methods:
                 Federal eRulemaking Portal: http://www.regulations.gov.
                Follow the instructions for submitting comments.
                 Mail: Lauren Alder Reid, Assistant Director, Office of
                Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
                Suite 2616, Falls Church, VA 22041. To ensure proper handling, please
                reference EOIR Docket No. 19-0504 on your correspondence. This mailing
                address may be used for paper, disk, or CD-ROM submissions.
                 Hand Delivery/Courier: Lauren Alder Reid, Assistant
                Director, Office of Policy, Executive Office for Immigration Review,
                5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact
                Telephone Number (703) 305-0289 (not a toll-free call).
                FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
                Office of Policy, Executive Office for Immigration Review, 5107
                Leesburg Pike, Suite 2616, Falls Church, VA 22041. Contact Telephone
                Number (703) 305-0289 (not a toll-free call).
                SUPPLEMENTARY INFORMATION:
                I. Public Participation
                 Interested persons are invited to participate in this rulemaking by
                submitting written data, views, or arguments on all aspects of this
                rule. The Departments also invite comments that relate to the potential
                economic or federalism effects that might result from this rule. To
                provide the most assistance to the Departments, comments should
                reference a specific portion of the rule; explain the reason for any
                recommended change; and include data, information, or authority that
                supports the recommended change. Comments received will be considered
                and addressed in the process of drafting the final rule.
                 All comments submitted for this rulemaking should include the
                agency name and EOIR Docket No. 19-0504. Please note that all comments
                received are considered part of the public record and made available
                for public inspection at www.regulations.gov. Such information includes
                personally identifiable information (such as a person's name, address,
                or any other data that might personally identify that individual) that
                the commenter voluntarily submits.
                 If you want to submit personally identifiable information as part
                of your comment, but do not want it to be posted online, you must
                include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first
                paragraph of your comment and precisely and prominently identify the
                information of which you seek redaction.
                 If you want to submit confidential business information as part of
                your comment, but do not want it to be posted online, you must include
                the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
                of your comment and precisely and prominently identify the confidential
                business information of which you seek redaction. If a comment has so
                much confidential business information that it cannot be effectively
                redacted, all or part of that comment may not be posted on
                www.regulations.gov. Personally identifiable information and
                confidential business information provided as set forth above will be
                placed in the public docket file of DOJ's Executive Office for
                Immigration Review (``EOIR''), but not posted online. To inspect the
                public docket file in person, you must make an appointment with EOIR.
                Please see the FOR FURTHER INFORMATION CONTACT paragraph above for the
                contact information specific to this rule.
                II. Purpose of This Interim Rule
                 As discussed further below, asylum is a discretionary immigration
                benefit that generally can be sought by eligible aliens who are
                physically present or arriving in the United States, irrespective of
                their status, as provided in section 208 of the INA, 8 U.S.C. 1158.
                Congress, however, has provided that certain categories of aliens
                cannot receive asylum and has further delegated to the Attorney General
                and the Secretary of Homeland Security (``Secretary'') the authority to
                promulgate regulations establishing additional bars on eligibility to
                the extent consistent with the asylum statute, as well as the authority
                to establish ``any other conditions or limitations on the consideration
                of an application for asylum'' that are consistent with the INA. See
                INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C), (d)(5)(B). This
                interim rule will limit aliens' eligibility for this discretionary
                benefit if they enter or attempt to enter the United States across the
                southern land border after failing to apply for protection in at least
                one third country through which they transited en route to the United
                States, subject to limited exceptions.
                 The United States has experienced a dramatic increase in the number
                of aliens encountered along or near the southern land border with
                Mexico. This increase corresponds with a sharp increase in the number,
                and percentage, of aliens claiming fear of persecution or torture when
                apprehended or encountered by DHS. For example, over the past decade,
                the overall percentage of aliens subject to expedited removal and
                referred, as part of the initial screening process, for a credible-fear
                interview on claims of a fear of return has jumped from approximately 5
                [[Page 33831]]
                percent to above 40 percent. The number of cases referred to DOJ for
                proceedings before an immigration judge has also risen sharply, more
                than tripling between 2013 and 2018. These numbers are projected to
                continue to increase throughout the remainder of Fiscal Year (``FY'')
                2019 and beyond. Only a small minority of these individuals, however,
                are ultimately granted asylum.
                 The large number of meritless asylum claims places an extraordinary
                strain on the nation's immigration system, undermines many of the
                humanitarian purposes of asylum, has exacerbated the humanitarian
                crisis of human smuggling, and affects the United States' ongoing
                diplomatic negotiations with foreign countries. This rule mitigates the
                strain on the country's immigration system by more efficiently
                identifying aliens who are misusing the asylum system to enter and
                remain in the United States rather than legitimately seeking urgent
                protection from persecution or torture. Aliens who transited through
                another country where protection was available, and yet did not seek
                protection, may fall within that category.
                 Apprehending the great number of aliens crossing illegally into the
                United States and processing their credible-fear and asylum claims
                consumes an inordinate amount of resources of the Departments. DHS must
                surveil, apprehend, screen, and process the aliens who enter the
                country. DHS must also devote significant resources to detain many
                aliens pending further proceedings and to represent the United States
                in immigration court proceedings. The large influx of aliens also
                consumes substantial resources of DOJ, whose immigration judges
                adjudicate aliens' claims and whose officials are responsible for
                prosecuting and maintaining custody over those who violate Federal
                criminal law. Despite DOJ deploying close to double the number of
                immigration judges as in 2010 and completing historic numbers of cases,
                currently more than 900,000 cases are pending before the immigration
                courts. This represents an increase of more than 100,000 cases (or a
                greater than 13 percent increase in the number of pending cases) since
                the start of FY 2019. And this increase is on top of an already
                sizeable jump over the previous five years in the number of cases
                pending before immigration judges. From the end of FY 2013 to the close
                of FY 2018, the number of pending cases more than doubled, increasing
                nearly 125 percent.
                 That increase is owing, in part, to the continued influx of aliens
                and record numbers of asylum applications being filed: More than
                436,000 of the currently pending immigration cases include an asylum
                application. But a large majority of the asylum claims raised by those
                apprehended at the southern border are ultimately determined to be
                without merit. The strain on the immigration system from those
                meritless cases has been extreme and extends to the judicial system.
                The INA provides many asylum-seekers with rights of appeal to the
                Article III courts of the United States. Final disposition of asylum
                claims, even those that lack merit, can take years and significant
                government resources to resolve, particularly where Federal courts of
                appeals grant stays of removal when appeals are filed. See De Leon v.
                INS, 115 F.3d 643 (9th Cir. 1997).
                 The rule's bar on asylum eligibility for aliens who fail to apply
                for protection in at least one third country through which they transit
                en route to the United States also aims to further the humanitarian
                purposes of asylum. It prioritizes individuals who are unable to obtain
                protection from persecution elsewhere and individuals who are victims
                of a ``severe form of trafficking in persons'' as defined by 8 CFR
                214.11, many of whom do not volitionally transit through a third
                country to reach the United States. By deterring meritless asylum
                claims and de-prioritizing the applications of individuals who could
                have obtained protection in another country, the Departments seek to
                ensure that those refugees who have no alternative to U.S.-based asylum
                relief or have been subjected to an extreme form of human trafficking
                are able to obtain relief more quickly.
                 Additionally, the rule seeks to curtail the humanitarian crisis
                created by human smugglers bringing men, women, and children across the
                southern border. By reducing the incentive for aliens without an urgent
                or genuine need for asylum to cross the border--in the hope of a
                lengthy asylum process that will enable them to remain in the United
                States for years, typically free from detention and with work
                authorization, despite their statutory ineligibility for relief--the
                rule aims to reduce human smuggling and its tragic effects.
                 Finally, the rule aims to aid the United States in its negotiations
                with foreign nations on migration issues. Addressing the eligibility
                for asylum of aliens who enter or attempt to enter the United States
                after failing to seek protection in at least one third country through
                which they transited en route to the United States will better position
                the United States as it engages in ongoing diplomatic negotiations with
                Mexico and the Northern Triangle countries (Guatemala, El Salvador, and
                Honduras) regarding migration issues in general, related measures
                employed to control the flow of aliens into the United States (such as
                the recently implemented Migrant Protection Protocols \1\), and the
                urgent need to address the humanitarian and security crisis along the
                southern land border between the United States and Mexico.
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                 \1\ See Notice of Availability for Policy Guidance Related to
                Implementation of the Migrant Protection Protocols, 84 FR 6811 (Feb.
                28, 2019).
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                 In sum, this rule provides that, with limited exceptions, an alien
                who enters or arrives in the United States across the southern land
                border is ineligible for the discretionary benefit of asylum unless he
                or she applied for and received a final judgment denying protection in
                at least one third country through which he or she transited en route
                to the United States. The alien would, however, remain eligible to
                apply for statutory withholding of removal and for deferral of removal
                under the CAT.
                 In order to alleviate the strain on the U.S. immigration system and
                more effectively provide relief to those most in need of asylum--
                victims of a severe form of trafficking and refugees who have no other
                option--this rule incorporates the eligibility bar on asylum into the
                credible-fear screening process applicable to stowaways and aliens
                placed in expedited removal proceedings.
                III. Background
                A. Joint Interim Rule
                 The Attorney General and the Secretary publish this joint interim
                rule pursuant to their respective authorities concerning asylum
                determinations.
                 The Homeland Security Act of 2002 (``HSA''), Public Law 107-296, as
                amended, transferred many functions related to the execution of Federal
                immigration law to the newly created DHS. The HSA charged the Secretary
                ``with the administration and enforcement of this chapter and all other
                laws relating to the immigration and naturalization of aliens,'' 8
                U.S.C. 1103(a)(1), and granted the Secretary the power to take all
                actions ``necessary for carrying out'' the provisions of the INA, id.
                at 1103(a)(3). The HSA also transferred to DHS some responsibility for
                affirmative asylum applications, i.e., applications for asylum made
                outside the removal context. See 6 U.S.C. 271(b)(3). That authority has
                been delegated within DHS to U.S. Citizenship and Immigration Services
                (``USCIS''). USCIS asylum officers
                [[Page 33832]]
                determine in the first instance whether an alien's affirmative asylum
                application should be granted. See 8 CFR 208.4(b), 208.9.
                 But the HSA retained authority over certain individual immigration
                adjudications (including those related to defensive asylum
                applications) for DOJ, under EOIR and subject to the direction and
                regulation of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g).
                Thus, immigration judges within DOJ continue to adjudicate all asylum
                applications made by aliens during the removal process (defensive
                asylum applications), and they also review affirmative asylum
                applications referred by USCIS to the immigration court. See INA
                101(b)(4), 8 U.S.C. 1101(b)(4); 8 CFR 1208.2; Dhakal v. Sessions, 895
                F.3d 532, 536-37 (7th Cir. 2018) (describing affirmative and defensive
                asylum processes). The Board of Immigration Appeals (Board), also
                within DOJ, hears appeals from certain decisions by immigration judges.
                8 CFR 1003.1(b)-(d). Asylum-seekers may appeal certain Board decisions
                to the Article III courts of the United States. See INA 242(a), 8
                U.S.C. 1252(a).
                 The HSA also provided ``[t]hat determination and ruling by the
                Attorney General with respect to all questions of law shall be
                controlling.'' INA 103(a)(1), 8 U.S.C. 1103(a)(1). This broad division
                of functions and authorities informs the background of this interim
                rule.
                B. Legal Framework for Asylum
                 Asylum is a form of discretionary relief under section 208 of the
                INA, 8 U.S.C. 1158, that generally, if granted, keeps an alien from
                being subject to removal, creates a path to lawful permanent resident
                status and U.S. citizenship, and affords a variety of other benefits,
                such as allowing certain alien family members to obtain lawful
                immigration status derivatively. See R-S-C v. Sessions, 869 F.3d 1176,
                1180 (10th Cir. 2017); see also, e.g., INA 208(c)(1)(A), (C), 8 U.S.C.
                1158(c)(1)(A), (C) (asylees cannot be removed subject to certain
                exceptions and can travel abroad with prior consent); INA 208(c)(1)(B),
                (d)(2), 8 U.S.C. 1158(c)(1)(B), (d)(2) (asylees shall be given work
                authorization; asylum applicants may be granted work authorization 180
                days after the filing of their applications); INA 208(b)(3), 8 U.S.C.
                1158(b)(3) (allowing derivative asylum for an 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); 8 CFR 209.2; 8 U.S.C. 1612(a)(2)(A)
                (asylees are eligible for certain Federal means-tested benefits on a
                preferential basis compared to most legal permanent residents); INA
                316(a), 8 U.S.C. 1427(a) (describing requirements for the
                naturalization of lawful permanent residents).
                 Aliens applying for asylum must establish that they meet the
                definition of a ``refugee,'' that they are not subject to a bar to the
                granting of asylum, and that they merit a favorable exercise of
                discretion. INA 208(b)(1), 240(c)(4)(A), 8 U.S.C. 1158(b)(1), 8 U.S.C.
                1229a(c)(4)(A); see Moncrieffe v. Holder, 569 U.S. 184, 187 (2013)
                (describing asylum as a form of ``discretionary relief from removal'');
                Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (``Asylum is a
                discretionary form of relief . . . . Once an applicant has established
                eligibility . . . it remains within the Attorney General's discretion
                to deny asylum.''). Because asylum is a discretionary form of relief
                from removal, the alien bears the burden of showing both eligibility
                for asylum and why the Attorney General or Secretary should exercise
                the discretion to grant relief. See INA 208(b)(1), 240(c)(4)(A), 8
                U.S.C. 1158(b)(1), 1229a(c)(4)(A)(ii); 8 CFR 1240.8(d); see Romilus v.
                Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).
                 Section 208 of the INA provides that, in order to apply for asylum,
                an applicant must be ``physically present'' or ``arriving'' in the
                United States, INA 208(a)(1), 8 U.S.C. 1158(a)(1). Furthermore, to
                obtain asylum, the alien must demonstrate that he or she meets the
                statutory definition 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); 8 CFR 1240.8(d). The alien bears the
                burden of proof to establish that he or she meets these criteria. INA
                208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i); 8 CFR 1240.8(d).
                 For an alien to establish that he or she is a ``refugee,'' the
                alien generally must be someone who is outside of his or her country of
                nationality and ``is unable or unwilling to return to . . . that
                country because of persecution or a well-founded fear of persecution on
                account of race, religion, nationality, membership in a particular
                social group, or political opinion.'' INA 101(a)(42)(A), 8 U.S.C.
                1101(a)(42)(A). In addition, if evidence indicates that one or more of
                the grounds for mandatory denial may apply, see INA 208(b)(2)(A)(i)-
                (vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi), an alien must show not only that
                he or she does not fit within one of the statutory bars to granting
                asylum but also that he or she is not subject to any ``additional
                limitations and conditions . . . under which an alien shall be
                ineligible for asylum'' established by a regulation that is
                ``consistent with'' section 208 of the INA, see INA 208(b)(2)(C), 8
                U.S.C. 1158(b)(2)(C). The asylum applicant bears the burden of
                establishing that the bar at issue does not apply. 8 CFR 1240.8(d); see
                also, e.g., Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008)
                (applying 8 CFR 1240.8(d) in the context of the aggravated felony bar
                to asylum); Chen v. U.S. Att'y Gen., 513 F.3d 1255, 1257 (11th Cir.
                2008) (applying 8 CFR 1240.8(d) in the context of the persecutor bar);
                Gao v. U.S. Att'y Gen., 500 F.3d 93, 98 (2d Cir. 2007) (same).
                 Because asylum is a discretionary benefit, those aliens who are
                statutorily eligible for asylum (i.e., those who meet the definition of
                ``refugee'' and are not subject to a mandatory bar) are not entitled to
                it. After demonstrating eligibility, aliens must further meet their
                burden of showing that the Attorney General or Secretary should
                exercise his or her discretion to grant asylum. See INA 208(b)(1)(A), 8
                U.S.C. 1158(b)(1)(A) (the ``Secretary of Homeland Security or the
                Attorney General may grant asylum to an alien'' who applies in
                accordance with the required procedures and meets the definition of a
                ``refugee''). The asylum statute's grant of discretion ``[i]s a broad
                delegation of power, which restricts the Attorney General's discretion
                to grant asylum only by requiring the Attorney General to first
                determine that the asylum applicant is a `refugee.' '' Komarenko v.
                INS, 35 F.3d 432, 436 (9th Cir. 1994), overruled on other grounds by
                Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc) (per curiam).
                Immigration judges and asylum officers exercise that delegated
                discretion on a case-by-case basis.
                C. Establishing Bars to Asylum
                 The availability of asylum has long been qualified both by
                statutory bars and by administrative discretion to create additional
                bars. Those bars have developed over time in a back-and-forth process
                between Congress and the Attorney General. The original asylum statute,
                as set out in the Refugee Act of 1980, Public Law 96-212, simply
                directed the Attorney General to ``establish a procedure for an alien
                physically present in the United States or at a land border or port of
                entry, irrespective of such alien's status, to apply for asylum, and
                the alien may be granted asylum in the discretion of the Attorney
                General if the Attorney General determines that such alien is a
                refugee'' within the meaning of the INA. See 8 U.S.C. 1158(a) (1982);
                see also INS v. Cardoza-Fonseca, 480 U.S. 421, 427-
                [[Page 33833]]
                29 (1987) (describing the 1980 provisions).
                 In the 1980 implementing regulations, the Attorney General, in his
                discretion, established several mandatory bars to granting asylum that
                were modeled on the mandatory bars to eligibility for withholding of
                deportation under the then-existing section 243(h) of the INA. See
                Refugee and Asylum Procedures, 45 FR 37392, 37392 (June 2, 1980). Those
                regulations required denial of an asylum application if it was
                determined that (1) the alien was ``not a refugee within the meaning of
                section 101(a)(42)'' of the INA, 8 U.S.C. 1101(a)(42); (2) the alien
                had been ``firmly resettled in a foreign country'' before arriving in
                the United States; (3) the alien ``ordered, incited, assisted, or
                otherwise participated in the persecution of any person on account of
                race, religion, nationality, membership in a particular group, or
                political opinion''; (4) the alien had ``been convicted by a final
                judgment of a particularly serious crime'' and therefore constituted
                ``a danger to the community of the United States''; (5) there were
                ``serious reasons for considering that the alien ha[d] committed a
                serious nonpolitical crime outside the United States prior to the
                arrival of the alien in the United States''; or (6) there were
                ``reasonable grounds for regarding the alien as a danger to the
                security of the United States.'' See 45 FR at 37394-95.
                 In 1990, the Attorney General substantially amended the asylum
                regulations while retaining the mandatory bars for aliens who (1)
                persecuted others on account of a protected ground; (2) were convicted
                of a particularly serious crime in the United States; (3) firmly
                resettled in another country; or (4) presented reasonable grounds to be
                regarded as a danger to the security of the United States. See Asylum
                and Withholding of Deportation Procedures, 55 FR 30674, 30683 (July 27,
                1990); see also Yang v. INS, 79 F.3d 932, 936-39 (9th Cir. 1996)
                (upholding firm-resettlement bar); Komarenko, 35 F.3d at 436 (upholding
                particularly-serious-crime bar), abrogated on other grounds, Abebe v.
                Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc). In the Immigration
                Act of 1990, Congress added an additional mandatory bar to applying for
                or being granted asylum for ``an[y] alien who has been convicted of an
                aggravated felony.'' Public Law 101-649, sec. 515 (1990).
                 In the Illegal Immigration Reform and Immigrant Responsibility Act
                of 1996 (``IIRIRA''), Public Law 104-208, div. C, and the Antiterrorism
                and Effective Death Penalty Act of 1996, Public Law 104-132, Congress
                amended section 208 of the INA, 8 U.S.C. 1158, to include the asylum
                provisions in effect today: Among other things, Congress designated
                three categories of aliens who, with limited exceptions, are ineligible
                to apply for asylum: (1) Aliens who can be removed to a safe third
                country pursuant to a bilateral or multilateral agreement; (2) aliens
                who failed to apply for asylum within one year of arriving in the
                United States; and (3) aliens who have previously applied for asylum
                and had the application denied. Public Law 104-208, div. C, sec.
                604(a); see INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C). Congress
                also adopted six mandatory bars to granting asylum, which largely
                tracked the pre-existing asylum regulations. These bars prohibited
                asylum for (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'' in the
                United States; (3) aliens who committed a ``serious nonpolitical crime
                outside the United States'' before arriving in the United States; (4)
                aliens who are a ``danger to the security of the United States''; (5)
                aliens who are inadmissible or removable under a set of specified
                grounds relating to terrorist activity; and (6) aliens who have
                ``firmly resettled in another country prior to arriving in the United
                States.'' Public Law 104-208, div. C, sec. 604(a); see INA
                208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi). Congress further
                added that aggravated felonies, defined in 8 U.S.C. 1101(a)(43), would
                be considered ``particularly serious crime[s].'' Public Law 104-208,
                div. C, sec. 604(a); see INA 201(a)(43), 8 U.S.C. 1101(a)(43).
                 Although Congress enacted specific bars to asylum eligibility, that
                statutory list is not exhaustive. Congress, in IIRIRA, expressly
                authorized the Attorney General to expand upon two of those
                exceptions--the bars for ``particularly serious crimes'' and ``serious
                nonpolitical offenses.'' While Congress prescribed that all aggravated
                felonies constitute particularly serious crimes, Congress further
                provided that the Attorney General may ``designate by regulation
                offenses that will be considered'' a ``particularly serious crime,''
                the perpetrator of which ``constitutes a danger to the community of the
                United States.'' Public Law 104-208, div. C, sec. 604(a); see INA
                208(b)(2)(A)(ii), (B)(ii), 8 U.S.C. 1158(b)(2)(A)(ii), (B)(ii). Courts
                and the Board have long held that this grant of authority also
                authorizes the Board to identify additional particularly serious crimes
                (beyond aggravated felonies) through case-by-case adjudication. See,
                e.g., Delgado v. Holder, 648 F.3d 1095, 1106 (9th Cir. 2011) (en banc)
                (finding that Congress's decisions over time to amend the particularly
                serious crime bar by statute did not call into question the Board's
                additional authority to name serious crimes via case-by-case
                adjudication); Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006)
                (relying on the absence of an explicit statutory mandate that the
                Attorney General designate ``particular serious crimes'' only via
                regulation). Congress likewise authorized the Attorney General to
                designate by regulation offenses that constitute ``a serious
                nonpolitical crime outside the United States prior to the arrival of
                the alien in the United States.'' Public Law 104-208, div. C, sec.
                604(a); see INA 208(b)(2)(A)(iii), (B)(ii), 8 U.S.C.
                1158(b)(2)(A)(iii), (B)(ii).\2\
                ---------------------------------------------------------------------------
                 \2\ These provisions continue to refer only to the Attorney
                General, but the Departments interpret the provisions to also apply
                to the Secretary by operation of the HSA, Public Law 107-296. See 6
                U.S.C. 552; 8 U.S.C. 1103(a)(1).
                ---------------------------------------------------------------------------
                 Congress further provided the Attorney General with the authority,
                by regulation, to ``establish additional limitations and conditions,
                consistent with [section 208 of the INA], under which an alien shall be
                ineligible for asylum under paragraph (1).'' Public Law 104-208, div.
                C, sec. 604(a); see 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 and the Secretary to ``adopt[ ] further limitations''
                on asylum eligibility. R-S-C, 869 F.3d at 1187 & n.9. By allowing the
                creation by regulation of ``additional limitations and conditions,''
                the statute gives the Attorney General and the Secretary broad
                authority in determining what the ``limitations and conditions'' should
                be. The additional limitations on eligibility must be established ``by
                regulation,'' and must be ``consistent with'' the rest of section 208
                of the INA. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
                 Thus, the Attorney General has previously invoked section
                208(b)(2)(C) of the INA to limit eligibility for asylum based on a
                ``fundamental change in circumstances'' and on the ability of an
                applicant to safely relocate internally within the alien's country of
                nationality or of last habitual residence. See Asylum Procedures, 65 FR
                76121, 76126 (Dec. 6, 2000). More recently, the Attorney General and
                Secretary invoked section 208(b)(2)(C) to limit eligibility for asylum
                for aliens subject to a bar on entry under certain presidential
                proclamations. See Aliens Subject to a Bar on Entry Under Certain
                Presidential
                [[Page 33834]]
                Proclamations; Procedures for Protection Claims, 83 FR 55934 (Nov. 9,
                2018).\3\ The courts have also viewed section 208(b)(2)(C) as
                conferring broad discretion, including to render aliens ineligible for
                asylum based on fraud. See R-S-C, 869 F.3d at 1187; Nijjar v. Holder,
                689 F.3d 1077, 1082 (9th Cir. 2012) (noting that fraud can be ``one of
                the `additional limitations . . . under which an alien shall be
                ineligible for asylum' that the Attorney General is authorized to
                establish by regulation'').
                ---------------------------------------------------------------------------
                 \3\ This rule is currently subject to a preliminary injunction
                against its enforcement. See East Bay Sanctuary Covenant v. Trump,
                354 F. Supp. 3d 1094, 1115, 1121 (N.D. Cal. 2018), on remand from
                909 F.3d 1219 (9th Cir. 2018).
                ---------------------------------------------------------------------------
                 Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), also establishes
                certain procedures for consideration of asylum applications. But
                Congress specified that the Attorney General ``may provide by
                regulation for any other conditions or limitations on the consideration
                of an application for asylum,'' so long as those limitations are ``not
                inconsistent with this chapter.'' INA 208(d)(5)(B), 8 U.S.C.
                1158(d)(5)(B).
                 In sum, the current statutory framework leaves the Attorney General
                (and, after the HSA, also the Secretary) significant discretion to
                adopt additional bars to asylum eligibility. As noted above, when
                creating mandatory bars to asylum eligibility in the IIRIRA, Congress
                simultaneously delegated the authority to create additional bars in
                section 1158(b)(2)(C). Public Law 104-208, sec. 604 (codified at 8
                U.S.C. 1158(b)(2)). Pursuant to this broad delegation of authority, the
                Attorney General and the Secretary have in the past acted to protect
                the integrity of the asylum system by limiting eligibility for those
                who do not truly require this country's protection, and do so again
                here. See, e.g., 83 FR at 55944; 65 FR at 76126.
                 In promulgating this rule, the Departments rely on the broad
                authority granted by 8 U.S.C. 1158(b)(2)(C) to protect the ``core
                regulatory purpose'' of asylum law by prioritizing applicants ``with
                nowhere else to turn.'' Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013)
                (internal quotation marks omitted) (explaining that, in light of asylum
                law's ``core regulatory purpose,'' several provisions of the U.S. Code
                ``limit an alien's ability to claim asylum in the United States when
                other safe options are available''). Such prioritization is consistent
                with the purpose of the statutory firm-resettlement bar (8 U.S.C.
                1158(b)(2)(A)(vi)), which likewise was implemented to limit the
                availability of asylum for those who are seeking to choose among a
                number of safe countries. See Sall v. Gonzales, 437 F.3d 229, 233 (2d
                Cir. 2006); Matter of A-G-G-, 25 I&N Dec. 486, 503 (BIA 2011); see also
                8 U.S.C. 1158(a)(2)(A) (providing that aliens who may be removed,
                pursuant to a bilateral or multilateral agreement, to a safe third
                country may not apply for asylum, and further demonstrating the
                intention of Congress to afford asylum protection only to those
                applicants who cannot seek effective protection in third countries).
                The concern with avoiding such forum-shopping has only been heightened
                by the dramatic increase in aliens entering or arriving in the United
                States along the southern border after transiting through one or more
                third countries where they could have sought protection, but did not.
                See infra at 33-41; Kalubi v. Ashcroft, 364 F.3d 1134, 1140 (9th Cir.
                2004) (noting that forum-shopping might be ``part of the totality of
                circumstances that sheds light on a request for asylum in this
                country''). While under the current regulatory regime the firm-
                resettlement bar applies only in circumstances in which offers of
                permanent status have been extended by third countries, see 8 CFR
                208.15, 1208.15, the additional bar created by this rule also seeks--
                like the firm-resettlement bar--to deny asylum protection to those
                persons effectively choosing among several countries where avenues to
                protection from return to persecution are available by waiting until
                they reach the United States to apply for protection. See Sall, 437
                F.3d at 233. Thus, the rule is well within the authority conferred by
                section 208(b)(2)(C).
                D. Other Forms of Protection
                 Aliens who are not eligible to apply for or receive a grant of
                asylum, or who are denied asylum on the basis of the Attorney General's
                or the Secretary's discretion, may nonetheless qualify for protection
                from removal under other provisions of the immigration laws. A
                defensive application for asylum that is submitted by an alien in
                removal proceedings is deemed an application for statutory withholding
                of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See
                8 CFR 208.30(e)(2)-(4); 8 CFR 1208.16(a). And an immigration judge may
                also consider an alien's eligibility for withholding and deferral of
                removal under regulations issued pursuant to the implementing
                legislation regarding U.S. obligations under Article 3 of the
                Convention against Torture and Other Cruel, Inhuman or Degrading
                Treatment or Punishment (``CAT''). See Foreign Affairs Reform and
                Restructuring Act of 1998, Public Law 105-277, sec. 2242(b) (1998); 8
                CFR 1208.13(c); 8 CFR 1208.3(b), see also 8 CFR 1208.16(c) and 1208.17.
                 Those forms of protection bar an alien's removal to any country
                where the alien would ``more likely than not'' face persecution or
                torture, meaning that the alien would face a clear probability that his
                or her life or freedom would be threatened on account of a protected
                ground or a clear probability of torture. 8 CFR 1208.16(b)(2), (c)(2);
                see Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007); Sulaiman
                v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005). Thus, if an alien
                proves that it is more likely than not that the alien's life or freedom
                would be threatened on account of a protected ground, but is denied
                asylum for some other reason--for instance, because of a statutory
                exception, an eligibility bar adopted by regulation, or a discretionary
                denial of asylum--the alien nonetheless may be entitled to statutory
                withholding of removal if not otherwise barred from that form of
                protection. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16,
                1208.16; see also Garcia v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017)
                (``[W]ithholding of removal has long been understood to be a mandatory
                protection that must be given to certain qualifying aliens, while
                asylum has never been so understood.''). Likewise, an alien who
                establishes that he or she will more likely than not face torture in
                the country of removal will qualify for CAT protection. See 8 CFR
                208.16(c), 208.17(a), 1208.16(c), 1208.17(a). In contrast to the more
                generous benefits available through asylum, statutory withholding and
                CAT protection do not: (1) Prohibit the Government from removing the
                alien to a third country where the alien would not face the requisite
                probability of persecution or torture (even in the absence of an
                agreement with that third country); (2) create a path to lawful
                permanent resident status and citizenship; or (3) afford the same
                ancillary benefits (such as derivative protection for family members)
                and access to Federal means-tested public benefits. See R-S-C, 869 F.3d
                at 1180.
                E. Implementation of International Treaty Obligations
                 The framework described above is consistent with certain U.S.
                obligations under the 1967 Protocol relating to the Status of Refugees
                (``Refugee Protocol''), which incorporates Articles 2-34 of the 1951
                Convention relating to the Status of Refugees (``Refugee Convention''),
                as well as U.S. obligations under Article 3 of the CAT. Neither the
                Refugee Protocol nor the CAT is self-executing in the United States.
                See Khan v.
                [[Page 33835]]
                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 their obligations have
                been implemented by domestic legislation. For example, the United
                States has implemented the non-refoulement provisions of these
                treaties--i.e., provisions prohibiting the return of an individual to a
                country where he or she would face persecution or torture--through the
                withholding of removal provisions at section 241(b)(3) of the INA and
                the CAT regulations, rather than 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 at sec. 2242(b); 8
                CFR 208.16(b)-(c), 208.17-208.18; 1208.16(b)-(c), 1208.17-1208.18.
                Limitations on the availability of asylum that do not affect the
                statutory withholding of removal or protection under the CAT
                regulations are consistent with these provisions. See R-S-C, 869 F.3d
                at 1188 & n. 11; Cazun v. U.S. 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).
                 Courts have rejected arguments that the Refugee Convention, as
                implemented, requires that every qualified refugee receive asylum. For
                example, the Supreme Court has made clear that Article 34, which
                concerns the assimilation and naturalization of refugees, is precatory
                and not mandatory, and, accordingly, does not mandate that all refugees
                be granted asylum. See Cardoza-Fonseca, 480 U.S. at 441. 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 id.; see also R-S-C, 869 F.3d at 1188; Mejia v. Sessions, 866 F.3d
                573, 588 (4th Cir. 2017); Cazun, 856 F.3d at 257 & n. 16; Garcia, 856
                F.3d at 42; Ramirez-Mejia, 813 F.3d at 241. As noted above, Congress
                has also recognized the precatory nature of Article 34 by imposing
                various statutory exceptions and by authorizing the creation of new
                bars to asylum eligibility through regulation.
                 Courts have likewise rejected arguments that other provisions of
                the Refugee Convention require every refugee to receive asylum. For
                example, courts have held, in the context of upholding the bar on
                eligibility for asylum in reinstatement proceedings under section
                241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), that limiting the ability to
                apply for asylum does not constitute a prohibited ``penalty'' under
                Article 31(1) of the Refugee Convention. Mejia, 866 F.3d at 588; Cazun,
                856 F.3d at 257 & n.16. Courts have also rejected the argument that
                Article 28 of the Refugee Convention, governing the issuance of
                international travel documents for refugees ``lawfully staying'' in a
                country's territory, mandates that every person who might qualify for
                statutory withholding must also be granted asylum. R-S-C, 869 F.3d at
                1188; Garcia, 856 F.3d at 42.
                IV. Regulatory Changes
                A. Limitation on Eligibility for Asylum for Aliens Who Enter or Attempt
                To Enter the United States Across the Southern Land Border After
                Failing To Apply for Protection in at Least One Country Through Which
                They Transited En Route to the United States
                 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 to eligibility for asylum for an
                alien who enters or attempts to enter the United States across the
                southern border, but who did not apply for protection from persecution
                or torture where it was available in at least one third country outside
                the alien's country of citizenship, nationality, or last lawful
                habitual residence through which he or she transited en route to the
                United States, such as in Mexico via that country's robust protection
                regime. The bar would be subject to several limited exceptions, for (1)
                an alien who demonstrates that he or she applied for protection from
                persecution or torture in at least one of the countries through which
                the alien transited en route to the United States, and the alien
                received a final judgment denying the alien protection in such country;
                (2) an alien who demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or (3) an alien who has transited en route to the United
                States through only a country or countries that were not parties to the
                1951 Convention relating to the Status of Refugees, the 1967 Protocol,
                or the CAT.
                 In all cases the burden would remain with the alien to establish
                eligibility for asylum consistent with current law, including--if the
                evidence indicates that a ground for mandatory denial applies--the
                burden to prove that a ground for mandatory denial of the asylum
                application does not apply. 8 CFR 1240.8(d).
                 In addition to establishing a new mandatory bar for asylum
                eligibility for an alien who enters or attempts to enter the United
                States across the southern border after failing to apply for protection
                from persecution or torture in at least one third country outside the
                alien's country of citizenship, nationality, or last lawful habitual
                residence through which he or she transited en route to the United
                States, this rule would also modify certain aspects of the process for
                screening fear claims asserted by such aliens who are subject to
                expedited removal under section 235(b)(1) of the INA, 8 U.S.C.
                1225(b)(1). Under current procedures, aliens subject to expedited
                removal may avoid being removed by making a threshold showing of a
                credible fear of persecution or torture at an initial screening
                interview. At present, those aliens are often released into the
                interior of the United States pending adjudication of such claims by an
                immigration court in removal proceedings under section 240 of the INA,
                especially if those aliens travel as family units. Once an alien is
                released, adjudications can take months or years to complete because of
                the increasing volume of claims and the need to expedite cases in which
                aliens have been detained. The Departments expect that a substantial
                proportion of aliens subject to a third-country-transit asylum
                eligibility bar would be subject to expedited removal, since
                approximately 234,534 aliens in FY 2018 who presented at a port of
                entry or were apprehended at the border were referred to expedited-
                removal proceedings. The procedural changes within expedited removal
                would be confined to aliens who are ineligible for asylum because they
                are subject to a regulatory bar for contravening the new mandatory
                third-country-transit asylum eligibility bar imposed by the present
                rule.
                 1. Under existing law, expedited-removal procedures--streamlined
                procedures for expeditiously reviewing claims and removing certain
                aliens--apply to those individuals who arrive at a port of entry or
                those who have entered illegally and are encountered by an immigration
                officer within 100 miles of the border and within 14 days of entering.
                See INA 235(b), 8 U.S.C. 1225(b); Designating Aliens For Expedited
                Removal, 69 FR 48877, 48880 (Aug. 11, 2004). To be subject to expedited
                removal, an alien must also be inadmissible under section 212(a)(6)(C)
                or (a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or (a)(7), meaning that
                the alien has either tried to procure documentation through
                misrepresentation or lacks such documentation altogether. Thus, an
                [[Page 33836]]
                alien encountered in the interior of the United States who entered the
                country after the publication of this rule imposing the third-country-
                transit bar and who is not otherwise amenable to expedited removal
                would be placed in proceedings under section 240 of the INA.
                 Section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), prescribes
                procedures in the expedited-removal context for screening an alien's
                eligibility for asylum. When these provisions were being debated in
                1996, the House Judiciary Committee expressed particular concern that
                ``[e]xisting procedures to deny entry to and to remove illegal aliens
                from the United States are cumbersome and duplicative,'' and that
                ``[t]he asylum system has been abused by those who seek to use it as a
                means of `backdoor' immigration.'' H.R. Rep. No. 104-469, pt. 1, at 107
                (1996). The Committee accordingly described the purpose of expedited
                removal and related procedures as ``streamlin[ing] rules and procedures
                in the Immigration and Nationality Act to make it easier to deny
                admission to inadmissible aliens and easier to remove deportable aliens
                from the United States.'' Id. at 157; see Am. Immigration Lawyers 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 constitutional challenges to IIRIRA
                and describing the expedited-removal process as a ``summary removal
                process for adjudicating the claims of aliens who arrive in the United
                States without proper documentation'').
                 Congress thus provided that aliens ``inadmissible under [8 U.S.C.]
                1182(a)(6)(C) or 1182(a)(7)'' shall be ``removed from the United States
                without further hearing or review unless the alien indicates either an
                intention to apply for asylum under [8 U.S.C. 1158] or a fear of
                persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); see INA
                235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii) (such aliens shall be
                referred ``for an interview by an asylum officer''). On its face, the
                statute refers only to proceedings to establish eligibility for an
                affirmative grant of asylum, not to statutory withholding of removal or
                CAT protection against removal to a particular country.
                 An alien referred for a credible-fear interview must demonstrate a
                ``credible fear,'' defined as a ``significant possibility, taking into
                account the credibility of the statements made by the alien in support
                of the alien's claim and such other facts as are known to the officer,
                that the alien could establish eligibility for asylum under [8 U.S.C.
                1158].'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). According to
                the House report, ``[t]he credible-fear standard [wa]s designed to weed
                out non-meritorious cases so that only applicants with a likelihood of
                success will proceed to the regular asylum process.'' H.R. Rep. No.
                104-69, at 158.
                 If the asylum officer determines that the alien lacks a credible
                fear, then the alien may request review by an immigration judge. INA
                235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). If the
                immigration judge concurs with the asylum officer's negative credible-
                fear determination, then the alien shall be removed from the United
                States without further review by either the Board or the courts. INA
                235(b)(1)(B)(iii)(I), (b)(1)(C), 8 U.S.C. 1225(b)(1)(B)(iii)(I),
                (b)(1)(C); INA 242(a)(2)(A)(iii), (e)(5), 8 U.S.C. 1252(a)(2)(A)(iii),
                (e)(5). By contrast, if the asylum officer or immigration judge
                determines that the alien has a credible fear--i.e., ``a significant
                possibility . . . that the alien could establish eligibility for
                asylum,'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)--then the
                alien, under current regulations, is placed in section 240 proceedings
                for a full hearing before an immigration judge, with appeal available
                to the Board and review in the Federal courts of appeals, see INA
                235(b)(1)(B)(ii), (b)(2)(A), 8 U.S.C. 1225(b)(1)(B)(ii), (b)(2)(A); INA
                242(a), 8 U.S.C. 1252(a); 8 CFR 208.30(e)(5), 1003.1.
                 By contrast, section 235 of the INA is silent regarding procedures
                for the granting of statutory withholding of removal and CAT
                protection; indeed, section 235 predates the legislation directing
                implementation of U.S. obligations under Article 3 of the CAT. See
                Foreign Affairs Reform and Restructuring Act of 1998 at sec. 2242(b)
                (requiring implementation of the CAT); IIRIRA at sec. 302 (revising
                section 235 of the INA to include procedures for dealing with
                inadmissible aliens who intend to apply for asylum). The legal
                standards for ultimately meeting the statutory standards for asylum on
                the merits versus statutory withholding or CAT protection are also
                different. Asylum requires an applicant to ultimately establish a
                ``well-founded fear'' of persecution, which has been interpreted to
                mean a ``reasonable possibility'' of persecution--a ``more generous''
                standard than the ``clear probability'' of persecution or torture
                standard that applies to statutory withholding or CAT protection. See
                INS v. Stevic, 467 U.S. 407, 425, 429-30 (1984); Santosa v. Mukasey,
                528 F.3d 88, 92 & n.1 (1st Cir. 2008); compare 8 CFR
                1208.13(b)(2)(i)(B), with 8 CFR 1208.16(b)(2), (c)(2). As a result,
                applicants who establish eligibility for asylum are not necessarily
                eligible for statutory withholding or CAT protection.
                 Current regulations instruct USCIS adjudicators and immigration
                judges to treat an alien's request for asylum in expedited-removal
                proceedings under section 1225(b) as a request for statutory
                withholding and CAT protection as well. See 8 CFR 208.13(c)(1),
                208.30(e)(2)-(4), 1208.13(c)(1), 1208.16(a). In the context of
                expedited-removal proceedings, ``credible fear of persecution'' is
                defined to mean a ``significant possibility'' that the alien ``could
                establish eligibility for asylum,'' not the CAT or statutory
                withholding. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
                Regulations nevertheless have generally provided that aliens in
                expedited removal should be subject to the same process and screening
                standard for considering statutory withholding of removal claims under
                INA 241(b)(3), 8 U.S.C. 1231(b)(3), and claims for protection under the
                CAT regulations, as they are for asylum claims. See 8 CFR 208.30(e)(2)-
                (4).
                 Thus, when the former Immigration and Naturalization Service
                provided for claims for statutory withholding of removal and CAT
                protection to be considered in the same expedited-removal proceedings
                as asylum, the result was that if an alien showed that there was a
                significant possibility of establishing eligibility for asylum and was
                therefore referred for removal proceedings under section 240 of the
                INA, any potential statutory withholding and CAT claims the alien might
                have had were referred as well. This was done on the assumption that it
                would not ``disrupt[] the streamlined process established by Congress
                to circumvent meritless claims.'' Regulations Concerning the Convention
                Against Torture, 64 FR 8478, 8485 (Feb. 19, 1999). But while the INA
                authorizes the Attorney General and Secretary to provide for
                consideration of statutory withholding and CAT claims together with
                asylum claims or other matters that may be considered in removal
                proceedings, the INA does not mandate that approach, see Foti v. INS,
                375 U.S. 217, 229-30 & n.16 (1963), or that they be considered in the
                same manner.
                 Since 1999, regulations also have provided for a distinct
                ``reasonable fear'' screening process for certain aliens who are
                categorically ineligible for asylum and can thus make claims only for
                statutory withholding or CAT protection. See 8 CFR 208.31.
                Specifically, if an alien is subject to having a previous order of
                removal reinstated or is a non-permanent
                [[Page 33837]]
                resident alien subject to an administrative order of removal resulting
                from an aggravated felony conviction, then he or she is categorically
                ineligible for asylum. See id. Sec. 208.31(a), (e). Such an alien can
                be placed in withholding-only proceedings to adjudicate his statutory
                withholding or CAT claims, but only if he first establishes a
                ``reasonable fear'' of persecution or torture through a screening
                process that tracks the credible-fear process. See id. Sec. 208.31(c),
                (e).
                 To establish a reasonable fear of persecution or torture, an alien
                must establish a ``reasonable possibility that [the alien] would be
                persecuted on account of his or her race, religion, nationality,
                membership in a particular social group or political opinion, or a
                reasonable possibility that he or she would be tortured in the country
                of removal.'' Id. Sec. 208.31(c). ``This . . . screening process is
                modeled on the credible-fear screening process, but requires the alien
                to meet a higher screening standard.'' Regulations Concerning the
                Convention Against Torture, 64 FR at 8485; see also Garcia v. Johnson,
                No. 14-CV-01775, 2014 WL 6657591, at *2 (N.D. Cal. Nov. 21, 2014)
                (describing the aim of the regulations as providing ``fair and
                efficient procedures'' in reasonable-fear screening that would comport
                with U.S. international obligations).
                 Significantly, when establishing the reasonable-fear screening
                process, DOJ explained that the two affected categories of aliens
                should be screened based on the higher reasonable-fear standard
                because, ``[u]nlike the broad class of arriving aliens who are subject
                to expedited removal, these two classes of aliens are ineligible for
                asylum,'' and may be entitled only to statutory withholding of removal
                or CAT protection. Regulations Concerning the Convention Against
                Torture, 64 FR at 8485. ``Because the standard for showing entitlement
                to these forms of protection (a clear probability of persecution or
                torture) is significantly higher than the standard for asylum (a well-
                founded fear of persecution), the screening standard adopted for
                initial consideration of withholding and deferral requests in these
                contexts is also higher.'' Id.
                 2. Drawing on the established framework for considering whether to
                grant withholding of removal or CAT protection in the reasonable-fear
                context, this interim rule establishes a bifurcated screening process
                for aliens subject to expedited removal who are ineligible for asylum
                by virtue of falling subject to this rule's third-country-transit
                eligibility bar, but who express a fear of return or seek statutory
                withholding or CAT protection. The Attorney General and Secretary have
                broad authority to implement the immigration laws, see INA 103, 8
                U.S.C. 1103, including by establishing regulations, see INA 103(a)(3),
                8 U.S.C. 1103(a)(3), and to regulate ``conditions or limitations on the
                consideration of an application for asylum,'' id. 1158(d)(5)(B).
                Furthermore, the Secretary has the authority--in his ``sole and
                unreviewable discretion,'' the exercise of which may be ``modified at
                any time''--to designate additional categories of aliens that will be
                subject to expedited-removal procedures, so long as the designated
                aliens have not been admitted or paroled nor continuously present in
                the United States for two years. INA 235(b)(1)(A)(iii), 8 U.S.C.
                1225(b)(1)(A)(iii). The Departments have frequently invoked these
                authorities to establish or modify procedures affecting aliens in
                expedited-removal proceedings, as well as to adjust the categories of
                aliens subject to particular procedures within the expedited-removal
                framework.
                 This rule does not change the credible-fear standard for asylum
                claims, although the regulation would expand the scope of the inquiry
                in the process. An alien who is subject to the third-country-transit
                bar and nonetheless has entered the United States along the southern
                land border after the effective date of this rule creating the bar
                would be ineligible for asylum and would thus not be able to establish
                a ``significant possibility . . . [of] eligibility for asylum under
                section 1158.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
                Consistent with section 235(b)(1)(B)(iii)(III) of the INA, the alien
                could still obtain review from an immigration judge regarding whether
                the asylum officer correctly determined that the alien was subject to a
                limitation or suspension on entry imposed by the third-country-transit
                bar. Further, consistent with section 235(b)(1)(B) of the INA, if the
                immigration judge reversed the asylum officer's determination, the
                alien could assert the asylum claim in section 240 proceedings.
                 Aliens determined to be ineligible for asylum by virtue of falling
                subject to the third-country-transit bar, however, would still be
                screened, but in a manner that reflects that their only viable claims
                could be for statutory withholding or CAT protection pursuant to 8 CFR
                208.30(e)(2)-(4) and 1208.16. After determining the alien's
                ineligibility for asylum under the credible-fear standard, the asylum
                officer would apply the long-established reasonable-fear standard to
                assess whether further proceedings on a possible statutory withholding
                or CAT protection claim are warranted. If the asylum officer determined
                that the alien had not established the requisite reasonable fear, the
                alien then could seek review of that decision from an immigration judge
                (just as the alien may under existing 8 CFR 208.30 and 208.31), and
                would be subject to removal only if the immigration judge agreed with
                the negative reasonable-fear finding. Conversely, if either the asylum
                officer or the immigration judge determined that the alien cleared the
                reasonable-fear threshold, the alien would be put in section 240
                proceedings, just like aliens who receive a positive credible-fear
                determination for asylum. Employing a reasonable-fear standard in this
                context, for this category of ineligible aliens, would be consistent
                with DOJ's longstanding rationale that ``aliens ineligible for
                asylum,'' who could only be granted statutory withholding of removal or
                CAT protection, should be subject to a different screening standard
                that would correspond to the higher bar for actually obtaining these
                forms of protection. See Regulations Concerning the Convention Against
                Torture, 64 FR at 8485 (``Because the standard for showing entitlement
                to these forms of protection . . . is significantly higher than the
                standard for asylum[,] . . . the screening standard adopted for initial
                consideration of withholding and deferral requests in these contexts is
                also higher.'').
                 3. The screening process established by the interim rule
                accordingly will 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
                such aliens will continue to go before an asylum officer for screening,
                consistent with INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B). The asylum
                officer will ask threshold questions to elicit whether an alien is
                ineligible for a grant of asylum pursuant to the third-country-transit
                bar. If there is a significant possibility that the alien is not
                subject to the eligibility bar (and the alien otherwise demonstrates
                that there is a significant possibility that he or she can establish
                eligibility for asylum), then the alien will have established a
                credible fear.
                 If, however, an alien lacks a significant possibility of
                eligibility for asylum because of the third-country-transit bar, then
                the asylum officer will make a negative credible-fear finding.
                [[Page 33838]]
                The asylum officer will then apply the reasonable-fear standard to
                assess the alien's claims for statutory withholding of removal or CAT
                protection.
                 An alien subject to the third-country-transit asylum eligibility
                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 third-country-transit ineligibility bar to asylum, as
                well as other claims. If an immigration judge determines that the alien
                was incorrectly identified as subject to the third-country-transit bar,
                the alien will be able to apply for asylum. Such aliens can appeal the
                immigration judge's decision in these proceedings to the Board and then
                seek review from a Federal court of appeals.
                 Conversely, an alien who is found to be subject to the third-
                country-transit asylum eligibility bar and who does not clear the
                reasonable-fear screening standard can obtain review of both of those
                determinations before an immigration judge, just as immigration judges
                currently review negative credible-fear and reasonable-fear
                determinations. If the immigration judge finds that either
                determination was incorrect, then the alien will be placed into section
                240 proceedings. In reviewing the determinations, the immigration judge
                will decide de novo whether the alien is subject to the third-country-
                transit asylum eligibility bar. If, however, the immigration judge
                affirms both determinations, then the alien will be subject to removal
                without further appeal, consistent with the existing process under
                section 235 of the INA. In short, aliens subject to the third-country-
                transit asylum eligibility bar 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 withholding and CAT
                protection claims.
                 4. The above process will not affect the process in 8 CFR
                208.30(e)(5) (to be redesignated as 8 CFR 208.30(e)(5)(i) under this
                rule) for certain existing statutory bars to asylum eligibility. Under
                that regulatory provision, many aliens who appear to fall within an
                existing statutory bar, and thus appear to be ineligible for asylum,
                can nonetheless be placed in section 240 proceedings and have their
                asylum claim adjudicated by an immigration judge, if they establish a
                credible fear of persecution, followed by further review of any denial
                of their asylum application before the Board and the courts of appeals.
                B. Anticipated Effects of the Rule
                 When the expedited procedures were first implemented approximately
                two decades ago, very few aliens within those proceedings claimed a
                fear of persecution. Since then, the numbers have dramatically
                increased. In FY 2018, USCIS received 99,035 credible-fear claims, a
                175 percent increase from five years earlier and a 1,883 percent
                increase from ten years earlier. FY 2019 is on track to see an even
                greater increase in claims, with more than 35,000 credible-fear claims
                received in the first four months of the fiscal year. This
                unsustainable, increased burden on the U.S. immigration system also
                extends to DOJ: Immigration courts received over 162,000 asylum
                applications in FY 2018, a 270 percent increase from five years
                earlier.
                 This dramatic increase in credible-fear claims has been complicated
                by a demographic shift in the alien population crossing the southern
                border from Mexican single adult males to predominantly Central
                American family units and unaccompanied alien minors. Historically,
                aliens coming unlawfully to the United States along the southern land
                border were predominantly Mexican single adult males who generally were
                removed or who voluntarily departed within 48 hours if they had no
                legal right to stay in the United States. As of January 2019, more than
                60 percent are family units and unaccompanied alien children; 60
                percent are non-Mexican. In FY 2017, CBP apprehended 94,285 family
                units from the Northern Triangle countries at the southern land border.
                Of those family units, 99 percent remained in the country (as of
                January 2019). And, while Mexican single adults who are not legally
                eligible to remain in the United States may be immediately repatriated
                to Mexico, it is more difficult to expeditiously repatriate family
                units and unaccompanied alien children not from Mexico or Canada. And
                the long and arduous journey of children to the United States brings
                with it a great risk of harm that could be relieved if individuals were
                to more readily avail themselves of legal protection from persecution
                in a third country closer to the child's country of origin.
                 Even though the overall number of apprehensions of illegal aliens
                was relatively higher two decades ago than it is today (around 1.6
                million in 2000), given the demographic of aliens arriving to the
                United States at that time, they could be processed and removed more
                quickly, often without requiring detention or lengthy court
                proceedings. Moreover, apprehension numbers in past years often
                reflected individuals being apprehended multiple times over the course
                of a given year.
                 In recent years, the United States has seen a large increase in the
                number and proportion of inadmissible aliens subject to expedited
                removal who claim a fear of persecution or torture and are subsequently
                placed into removal proceedings before an immigration judge. This is
                particularly true for non-Mexican aliens, who now constitute the
                overwhelming majority of aliens encountered along the southern border
                with Mexico, and the overwhelming majority of aliens who assert claims
                of fear. But while the number of non-Mexican aliens encountered at the
                southern border has dramatically increased, a substantial number of
                such aliens failed to apply for asylum or refugee status in Mexico--
                despite the availability of a functioning asylum system.
                 In May of FY 2017, DHS recorded 7,108 enforcement actions with non-
                Mexican aliens along the southern border--which accounted for roughly
                36 percent of all enforcement actions along the southern border that
                month. In May of FY 2018, DHS recorded 32,477 enforcement actions with
                non-Mexican aliens along the southern border--which accounted for
                roughly 63 percent of that month's enforcement actions along the
                southern border. And in May of FY 2019, DHS recorded 121,151
                enforcement actions with non-Mexican aliens along the southern border--
                which accounted for approximately 84 percent of enforcement actions
                along the southern border that month. Accordingly, the number of
                enforcement actions involving non-Mexican aliens increased by more than
                1,600 percent from May FY 2017 to May FY 2019, and the percentage of
                enforcement actions at the southern land border involving non-Mexican
                aliens increased from 36 percent to 84 percent. Overall, southern
                border non-Mexican enforcement actions in FY 2017 totaled 233,411; they
                increased to 298,503 in FY 2018; and, in the first eight months of FY
                2019 (through May) they already total 524,446.
                 This increase corresponds to a growing trend over the past decade,
                in which the overall percentage of all aliens subject to expedited
                removal who are referred for a credible-fear interview by DHS jumped
                from approximately 5 percent to above 40 percent. The total number of
                aliens referred by DHS for credible-fear screening increased from
                [[Page 33839]]
                fewer than 5,000 in FY 2008 to more than 99,000 in FY 2018. The
                percentage of aliens who receive asylum remains small. In FY 2018, DHS
                asylum officers found over 75 percent of interviewed aliens to have a
                credible fear of persecution or torture and referred them for
                proceedings before an immigration judge within EOIR under section 240
                of the INA. In addition, EOIR immigration judges overturn about 20
                percent of the negative credible-fear determinations made by asylum
                officers, finding those aliens also to have a credible fear. Such
                aliens are referred to immigration judges for full hearings on their
                asylum claims.
                 But many aliens who receive a positive credible-fear determination
                never file an application for asylum. From FY 2016 through FY 2018,
                approximately 40 percent of aliens who received a positive credible-
                fear determination failed to file an asylum application. And of those
                who did proceed to file asylum applications, relatively few established
                that they should be granted such relief. From FY 2016 through FY 2018,
                among aliens who received a positive credible-fear determination, only
                12,062 aliens \4\--an average of 4,021 per year--were granted asylum
                (14 percent of all completed asylum cases, and about 36 percent of
                asylum cases decided on the merits).\5\ The many cases that lack merit
                occupy a large portion of limited docket time and absorb scarce
                government resources, exacerbating the backlog and diverting attention
                from other meritorious cases. Indeed, despite DOJ deploying the largest
                number of immigration judges in history and completing historic numbers
                of cases, a significant backlog remains. There are more than 900,000
                pending cases in immigration courts, at least 436,000 of which include
                an asylum application.
                ---------------------------------------------------------------------------
                 \4\ These numbers are based on data generated by EOIR on April
                12, 2019.
                 \5\ Completed cases include both those in which an asylum
                application was filed and those in which an application was not
                filed. Cases decided on the merits include only those completed
                cases in which an asylum application was filed and the immigration
                judge granted or denied that application.
                ---------------------------------------------------------------------------
                 Apprehending and processing this growing number of aliens who cross
                illegally into the United States and invoke asylum procedures consumes
                an ever-increasing amount of resources of DHS, which must surveil,
                apprehend, screen, and process the aliens who enter the country and
                must represent the U.S. Government in cases before immigration judges,
                the Board, and the U.S. Courts of Appeals. The interim rule seeks to
                ameliorate these strains on the immigration system.
                 The rule also aims to further the humanitarian purposes of asylum
                by prioritizing individuals who are unable to obtain protection from
                persecution elsewhere and individuals who have been victims of a
                ``severe form of trafficking in persons'' as defined by 8 CFR
                214.11,\6\ many of whom do not volitionally transit through a third
                country to reach the United States.\7\ By deterring meritless asylum
                claims and de-prioritizing the applications of individuals who could
                have sought protection in another country before reaching the United
                States, the Departments seek to ensure that those asylees who need
                relief most urgently are better able to obtain it.
                ---------------------------------------------------------------------------
                 \6\ ``Severe form of trafficking in persons means sex
                trafficking in which a commercial sex act is induced by force,
                fraud, or coercion, or in which the person induced to perform such
                act is under the age of 18 years; or the recruitment, harboring,
                transportation, provision, or obtaining of a person for labor or
                services through the use of force, fraud, or coercion for the
                purpose of subjection to involuntary servitude, peonage, debt
                bondage, or slavery.'' 8 CFR 214.11. Determinations made with
                respect to this exception will not be binding on Federal departments
                or agencies in subsequent determinations of eligibility for T or U
                nonimmigrant status under section 101(a)(15)(T) or (U) of the Act or
                for benefits or services under 22 U.S.C. 7105 or 8 U.S.C.
                11641(c)(4).
                \7\ This rule does not provide for a categorical exception for
                unaccompanied alien children (``UAC''), as defined in 6 U.S.C.
                279(g)(2). The Departments recognize that UAC are exempt from two of
                three statutory bars to applying for asylum: The ``safe third
                country'' bar and the one-year filing deadline, see INA
                208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E). Congress, however, did not
                exempt UAC from the bar on filing successive applications for
                asylum, see INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C), the various
                bars to asylum eligibility in INA 208(b)(2)(A), 8 U.S.C.
                1158(b)(2)(A), or the bars, like this one, established pursuant to
                the Departments' authorities under INA 208(b)(2)(C), 8 U.S.C.
                1158(b)(2)(C). But UAC, like others subject to this rule, will be
                able to apply for withholding of removal under INA section
                241(b)(3), 8 U.S.C. 1231(b)(3), or the CAT regulations. UAC will not
                be returned to the transit country for consideration of these
                protection claims.
                ---------------------------------------------------------------------------
                 The interim rule would further this objective by restricting the
                claims of aliens who, while ostensibly fleeing persecution, chose not
                to seek protection at the earliest possible opportunity. An alien's
                decision not to apply for protection at the first available
                opportunity, and instead wait for the more preferred destination of the
                United States, raises questions about the validity and urgency of the
                alien's claim and may mean that the claim is less likely to be
                successful.\8\ By barring such claims, the interim final rule would
                encourage those fleeing genuine persecution to seek protection as soon
                as possible and dissuade those with non-viable claims, including aliens
                merely seeking employment, from further overburdening the Nation's
                immigration system.
                ---------------------------------------------------------------------------
                 \8\ Indeed, the Board has previously held that this is a
                relevant consideration in asylum applications. In Matter of Pula, 19
                I&N Dec. 467, 473-74 (BIA 1987), the Board stated that ``in
                determining whether a favorable exercise of discretion is
                warranted'' for an applicant under the asylum statute, INA 208(a), 8
                U.S.C. 1158(2)(a), ``[a]mong those factors which should be
                considered are whether the alien passed through any other countries
                or arrived in the United States directly from his country, whether
                orderly refugee procedures were in fact available to help him in any
                country he passed through, and whether he made any attempts to seek
                asylum before coming to the United States.'' Consistent with the
                reasoning in Pula, this rule establishes that an alien who failed to
                request asylum in a country where it was available is not eligible
                for asylum in the United States. Even though the Board in Pula
                indicated that a range of factors is relevant to evaluating
                discretionary asylum relief under the general statutory asylum
                provision, the INA also authorizes the establishment of additional
                limitations to asylum eligibility by regulation--beyond those
                embedded in the statute. See INA 208(b)(2)(C), 8 U.S.C.
                1158(b)(2)(C). This rule uses that authority to establish one of the
                factors specified as relevant in Pula as the foundation of a new
                categorical asylum bar. This rule's prioritization of the third-
                country-transit factor, considered as just one of many factors in
                Pula, is justified, as explained above, by the increased numbers and
                changed nature of asylum claims in recent years.
                ---------------------------------------------------------------------------
                 Many of the aliens who wait to seek asylum until they arrive in the
                United States transit through not just one country, but multiple
                countries in which they may seek humanitarian protection. Yet they do
                not avail themselves of that option despite their claims of fear of
                persecution or torture in their home country. Under these
                circumstances, it is reasonable to question whether the aliens
                genuinely fear persecution or torture, or are simply economic migrants
                seeking to exploit our overburdened immigration system by filing a
                meritless asylum claim as a way of entering, remaining, and legally
                obtaining employment in the United States.\9\
                ---------------------------------------------------------------------------
                 \9\ Economic migrants are not eligible for asylum. See, e.g., In
                re: Brenda Leticia Sonday-Chavez, No. A-7-969, 2017 WL 4946947, at
                *1 (BIA Sept. 7, 2017) (``[E]conomic reasons for coming to the
                United States . . . would generally not render an alien eligible for
                relief from removal.''); see also Sale v. Haitian Centers Council
                Inc., 509 U.S. 155, 161-62 & n.11 (1993); Hui Zhuang v. Gonzales,
                471 F.3d 884, 890 (8th Cir. 2006) (``Fears of economic hardship or
                lack of opportunity do not establish a well-founded fear of
                persecution.'').
                ---------------------------------------------------------------------------
                 All seven countries in Central America plus Mexico are parties to
                both the Refugee Convention and the Refugee Protocol. Moreover, Mexico
                has expanded its capacity to adjudicate asylum claims in recent years,
                and the number of claims submitted in Mexico has increased. In 2016,
                the Mexican government received 8,789 asylum applications. In 2017, it
                received 14,596. In 2018, it received 29,623 applications. And in just
                the first three months of 2019, Mexico received 12,716 asylum
                [[Page 33840]]
                applications, putting Mexico on track to receive more than 50,000
                asylum applications by the end of 2019 if that quarterly pace
                continues. Instead of availing themselves of these available
                protections, many aliens transiting through Central America and Mexico
                decide not to seek protection, likely based upon a preference for
                residing in the United States. The United States has experienced an
                overwhelming surge in the number of non-Mexican aliens crossing the
                southern border and seeking asylum. This overwhelming surge and its
                accompanying burden on the United States has eroded the integrity of
                our borders, and it is inconsistent with the national interest to
                provide a discretionary benefit to those who choose not to seek
                protection at the first available opportunity.
                 The interim final rule also is in keeping with the efforts of other
                liberal democracies to prevent forum-shopping by directing asylum-
                seekers to present their claims in the first safe country in which they
                arrive. In 1990, European states adopted the Dublin Regulation in
                response to an asylum crisis as refugees and economic migrants fled
                communism at the end of the Cold War; it came into force in 1997. See
                Convention Determining the State Responsible for Examining Applications
                for Asylum Lodged in One of the Member States of the European
                Communities, 1997 O.J. (C 254). The United Nations High Commission for
                Refugees praised the Dublin Regulation's ``commendable efforts to share
                and allocate the burden of review of refugee and asylum claims.'' See
                UN High Comm'r for Refugees, UNHCR Position on Conventions Recently
                Concluded in Europe (Dublin and Schengen Conventions), 3 Eur. Series 2,
                385 (1991). Now in its third iteration, the Dublin III Regulation sets
                asylum criteria and protocol for the European Union (``EU''). It
                instructs that asylum claims ``shall be examined by a single Member
                State.'' Regulation (EU) No 604/2013 of the European Parliament and of
                the Council of 26 June 2013, Establishing the Criteria and Mechanisms
                for Determining the Member State Responsible for Examining an
                Application for International Protection Lodged in One of the Member
                States by a Third-Country National or a Stateless Person (Recast), 2013
                O.J. (L 180) 31, 37. Typically, for irregular migrants seeking asylum,
                the member state by which the asylum applicant first entered the EU
                ``shall be responsible for examining the application for international
                protection.'' Id. at 40. Generally, when a third-country national seeks
                asylum in a member state other than the state of first entry into the
                EU, that state may transfer the asylum-seeker back to the state of
                first safe entry. Id. at 2.
                 This rule also seeks to curtail the humanitarian crisis created by
                human smugglers bringing men, women, and children across the southern
                border. By reducing a central incentive for aliens without a genuine
                need for asylum to cross the border--the hope of a lengthy asylum
                process that will enable them to remain in the United States for years
                despite their statutory ineligibility for relief--the rule aims to
                reduce human smuggling and its tragic effects.
                 Finally, as discussed further below, this rule will facilitate
                ongoing diplomatic negotiations with Mexico and the Northern Triangle
                countries regarding general migration issues, related measures employed
                to control the flow of aliens (such as the Migrant Protection
                Protocols), and the humanitarian and security crisis along the southern
                land border between the United States and Mexico.
                 In sum, the rule would bar asylum for any alien who has entered or
                attempted to enter the United States across the southern border and who
                has failed to apply for protection from persecution or torture in at
                least one country outside the alien's country of citizenship,
                nationality, or last lawful habitual residence through which the alien
                transited en route to the United States, unless the alien demonstrates
                that the alien only transited through countries that were not parties
                to the 1951 United Nations Convention relating to the Status of
                Refugees, the 1967 Protocol Relating to the Status of Refugees, or the
                CAT, or the alien was a victim of ``a severe form of trafficking in
                persons'' as defined by 8 CFR 214.11.
                 Such a rule would ensure that the ever-growing influx of meritless
                asylum claims do not further overwhelm the country's immigration
                system, would promote the humanitarian purposes of asylum by speeding
                relief to those who need it most (i.e., individuals who have no
                alternative country where they can escape persecution or torture or who
                are victims of a severe form of trafficking and thus did not
                volitionally travel through a third country to reach the United
                States), would help curtail the humanitarian crisis created by human
                smugglers, and would aid U.S. negotiations on migration issues with
                foreign countries.
                V. Regulatory Requirements
                A. Administrative Procedure Act
                1. Good Cause Exception
                 While the Administrative Procedure Act (``APA'') generally requires
                agencies to publish notice of a proposed rulemaking in the Federal
                Register for a period of public comment, it provides an exception
                ``when the agency for good cause finds . . . that notice and public
                procedure thereon are impracticable, unnecessary, or contrary to the
                public interest.'' 5 U.S.C. 553(b)(B). That exception relieves agencies
                of the notice-and-comment requirement in emergency situations, or in
                circumstances where ``the delay created by the notice and comment
                requirements would result in serious damage to important interests.''
                Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 333 (1990),
                aff'd, 925 F.2d 1454 (Fed. Cir. 1991); see also United States v. Dean,
                604 F.3d 1275, 1279 (11th Cir. 2010); Nat'l Fed'n of Federal Emps. v.
                Nat'l Treasury Emps. Union, 671 F.2d 607, 611 (D.C. Cir. 1982).
                Agencies have previously relied on that exception in promulgating
                immigration-related interim rules.\10\ Furthermore, DHS has relied on
                that exception as additional legal justification when issuing orders
                related to expedited removal--a context in which Congress explicitly
                recognized the need for dispatch in addressing large volumes of aliens
                by giving the Secretary significant discretion to ``modify at any
                time'' the classes of aliens who would be subject to such procedures.
                See INA 235(b)(1)(A)(iii)(I), 8 U.S.C. 1225(b)(1)(A)(iii)(I).\11\
                ---------------------------------------------------------------------------
                 \10\ See, e.g., Visas: Documentation of Nonimmigrants Under the
                Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb.
                4, 2016) (interim rule citing good cause to immediately require
                additional documentation from certain Caribbean agricultural workers
                to avoid ``an increase in applications for admission in bad faith by
                persons who would otherwise have been denied visas and are seeking
                to avoid the visa requirement and consular screening process during
                the period between the publication of a proposed and a final
                rule''); Suspending the 30-Day and Annual Interview Requirements
                From the Special Registration Process for Certain Nonimmigrants, 68
                FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming the good cause
                exception for suspending certain automatic registration requirements
                for nonimmigrants because ``without [the] regulation approximately
                82,532 aliens would be subject to 30-day or annual re-registration
                interviews'' over a six-month period).
                 \11\ See, e.g., Eliminating Exception to Expedited Removal
                Authority for Cuban Nationals Arriving by Air, 82 FR 4769, 4770
                (Jan. 17, 2017) (identifying the APA good cause factors as
                additional justification for issuing an immediately effective
                expedited removal order because the ability to detain certain Cuban
                nationals ``while admissibility and identity are determined and
                protection claims are adjudicated, as well as to quickly remove
                those without protection claims or claims to lawful status, is a
                necessity for national security and public safety''); Designating
                Aliens For Expedited Removal, 69 FR 48877, 48880 (Aug. 11, 2004)
                (identifying the APA good cause factors as additional justification
                for issuing an immediately effective order to expand expedited
                removal due to ``[t]he large volume of illegal entries, and
                attempted illegal entries, and the attendant risks to national
                security presented by these illegal entries,'' as well as ``the need
                to deter foreign nationals from undertaking dangerous border
                crossings, and thereby prevent the needless deaths and crimes
                associated with human trafficking and alien smuggling operations'').
                ---------------------------------------------------------------------------
                [[Page 33841]]
                 The Departments have concluded that the good cause exceptions in 5
                U.S.C. 553(b)(B) and (d)(3) apply to this rule. Notice and comment on
                this rule, along with a 30-day delay in its effective date, would be
                impracticable and contrary to the public interest. The Departments have
                determined that immediate implementation of this rule is essential to
                avoid a surge of aliens who would have strong incentives to seek to
                cross the border during pre-promulgation notice and comment or during
                the 30-day delay in the effective date under 5 U.S.C. 553(d). As courts
                have recognized, smugglers encourage migrants to enter the United
                States based on changes in U.S. immigration policy, and in fact ``the
                number of asylum seekers entering as families has risen'' in a way that
                ``suggests a link to knowledge of those policies.'' East Bay Sanctuary
                Covenant v. Trump, 354 F. Supp. 3d 1094, 1115 (N.D. Cal. 2018). If this
                rule were published for notice and comment before becoming effective,
                ``smugglers might similarly communicate the Rule's potentially relevant
                change in U.S. immigration policy, albeit in non-technical terms,'' and
                the risk of a surge in migrants hoping to enter the country before the
                rule becomes effective supports a finding of good cause under 5 U.S.C.
                553. See id.
                 This determination is consistent with the historical view of the
                agencies regulating in this area. DHS concluded in January 2017 that it
                was imperative to give immediate effect to a rule designating Cuban
                nationals arriving by air as eligible for expedited removal because
                ``pre-promulgation notice and comment would . . . . endanger[ ] human
                life and hav[e] a potential destabilizing effect in the region.''
                Eliminating Exception to Expedited Removal Authority for Cuban
                Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017). DHS cited
                the prospect that ``publication of the rule as a proposed rule, which
                would signal a significant change in policy while permitting
                continuation of the exception for Cuban nationals, could lead to a
                surge in migration of Cuban nationals seeking to travel to and enter
                the United States during the period between the publication of a
                proposed and a final rule.'' Id. DHS found that ``[s]uch a surge would
                threaten national security and public safety by diverting valuable
                Government resources from counterterrorism and homeland security
                responsibilities. A surge could also have a destabilizing effect on the
                region, thus weakening the security of the United States and
                threatening its international relations.'' Id. DHS concluded that ``a
                surge could result in significant loss of human life.'' Id.; accord,
                e.g., Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11,
                2004) (noting similar destabilizing incentives for a surge during a
                delay in the effective date); Visas: Documentation of Nonimmigrants
                Under the Immigration and Nationality Act, as Amended, 81 FR 5906, 5907
                (Feb. 4, 2016) (finding the good cause exception applicable because of
                similar short-run incentive concerns).
                 DOJ and DHS raised similar concerns and drew similar conclusions in
                the November 2018 joint interim final rule that limited eligibility for
                asylum for aliens, subject to a bar on entry under certain presidential
                proclamations. See 83 FR at 55950. These same concerns would apply to
                an even greater extent to this rule. Pre-promulgation notice and
                comment, or a delay in the effective date, would be destabilizing and
                would jeopardize the lives and welfare of aliens who could surge to the
                border to enter the United States before the rule took effect. The
                Departments' experience has been that when public announcements are
                made regarding changes in our immigration laws and procedures, there
                are dramatic increases in the numbers of aliens who enter or attempt to
                enter the United States along the southern border. See East Bay
                Sanctuary Covenant, 354 F. Supp. 3d at 1115 (citing a newspaper article
                suggesting that such a rush to the border occurred due to knowledge of
                a pending regulatory change in immigration law). Thus, there continues
                to be an ``urgent need to deter foreign nationals from undertaking
                dangerous border crossings, and thereby prevent the needless deaths and
                crimes associated with human trafficking and alien smuggling
                operations.'' 69 FR at 48878.
                 Furthermore, an additional surge of aliens who sought to enter via
                the southern border prior to the effective date of this rule would be
                destabilizing to the region, as well as to the U.S. immigration system.
                The massive increase in aliens arriving at the southern border who
                assert a fear of persecution is overwhelming our immigration system as
                a result of a variety of factors, including the significant proportion
                of aliens who are initially found to have a credible fear and therefore
                are referred to full hearings on their asylum claims; the huge volume
                of claims; a lack of detention space; and the resulting high rate of
                release into the interior of the United States of aliens with a
                positive credible-fear determination, many of whom then abscond without
                pursuing their asylum claims. Recent initiatives to track family unit
                cases revealed that close to 82 percent of completed cases have
                resulted in an in absentia order of removal. A large additional influx
                of aliens who intend to enter unlawfully or who lack proper
                documentation to enter this country, all at once, would exacerbate the
                existing border crisis. This concern is particularly acute in the
                current climate in which illegal immigration flows fluctuate
                significantly in response to news events. This interim final rule is
                thus a practical means to address the time-sensitive influx of aliens
                and avoid creating an even larger short-term influx. An extended
                notice-and-comment rulemaking process would be impracticable and self-
                defeating for the public.
                2. Foreign Affairs Exemption
                 Alternatively, the Departments may forgo notice-and-comment
                procedures and a delay in the effective date because this rule involves
                a ``foreign affairs function of the United States.'' 5 U.S.C.
                553(a)(1), and proceeding through notice and comment may ``provoke
                definitely undesirable international consequences,'' City of New York
                v. Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d
                Cir. 2010) (quoting the description of the purpose of the foreign
                affairs exception in H.R. Rep. No. 79-1980, 69th Cong., 2d Sess. 257
                (1946)). The flow of aliens across the southern border, unlawfully or
                without appropriate travel documents, directly implicates the foreign
                policy and national security interests of the United States. See, e.g.,
                Exec. Order 13767 (Jan. 25, 2017) (discussing the important national
                security and foreign affairs-related interests associated with securing
                the border); Presidential Memorandum on Additional Measures to Enhance
                Border Security and Restore Integrity to Our Immigration System (Apr.
                29, 2019) (``This strategic exploitation of our Nation's humanitarian
                programs undermines our Nation's security and sovereignty.''); see
                also, e.g., Malek-Marzban v. INS, 653 F.2d 113, 115-16 (4th Cir. 1981)
                (finding that a regulation
                [[Page 33842]]
                requiring the expedited departure of Iranians from the United States in
                light of the international hostage crisis clearly related to foreign
                affairs and fell within the notice-and-comment exception).
                 This rule will facilitate ongoing diplomatic negotiations with
                foreign countries regarding migration issues, including measures to
                control the flow of aliens into the United States (such as the Migrant
                Protection Protocols), and the urgent need to address the current
                humanitarian and security crisis along the southern land border between
                the United States and Mexico. See City of New York, 618 F.3d at 201
                (finding that rules related to diplomacy with a potential impact on
                U.S. relations with other countries fall within the scope of the
                foreign affairs exemption). Those ongoing discussions relate to
                proposals for how these other countries could increase efforts to help
                reduce the flow of illegal aliens north to the United States and
                encourage aliens to seek protection at the safest and earliest point of
                transit possible.
                 Those negotiations would be disrupted if notice-and-comment
                procedures preceded the effective date of this rule--provoking a
                disturbance in domestic politics in Mexico and the Northern Triangle
                countries, and eroding the sovereign authority of the United States to
                pursue the negotiating strategy it deems to be most appropriate as it
                engages its foreign partners. See, e.g., Am. Ass'n of Exps. & Imps.-
                Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed. Cir.
                1985) (the foreign affairs exemption facilitates ``more cautious and
                sensitive consideration of those matters which so affect relations with
                other Governments that . . . public rulemaking provisions would provoke
                definitely undesirable international consequences'' (internal quotation
                marks omitted)). During a notice-and-comment process, public
                participation and comments may impact and potentially harm the goodwill
                between the United States and Mexico and the Northern Triangle
                countries--actors with whom the United States must partner to ensure
                that refugees can more effectively find refuge and safety in third
                countries. Cf. Rajah v. Mukasey, 544 F.3d 427, 437-38 (2d Cir. 2008)
                (``[R]elations with other countries might be impaired if the government
                were to conduct and resolve a public debate over why some citizens of
                particular countries were a potential danger to our security.'').
                 In addition, the longer that the effective date of the interim rule
                is delayed, the greater the number of people who will pass through
                third countries where they may have otherwise received refuge and reach
                the U.S. border, which has little present capacity to provide
                assistance. Cf. East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219,
                1252 (9th Cir. 2018) (``Hindering the President's ability to implement
                a new policy in response to a current foreign affairs crisis is the
                type of `definitely undesirable international consequence' that
                warrants invocation of the foreign affairs exception.''). Addressing
                this crisis will be more effective and less disruptive to long-term
                U.S. relations with Mexico and the Northern Triangle countries the
                sooner that this interim final rule is in place to help address the
                enormous flow of aliens through these countries to the southern U.S.
                border. Cf. Am. Ass'n of Exps. & Imps.-Textile & Apparel Grp., 751 F.2d
                at 1249 (``The timing of an announcement of new consultations or quotas
                may be linked intimately with the Government's overall political agenda
                concerning relations with another country.''); Rajah, 544 F.3d at 438
                (finding that the notice-and-comment process can be ``slow and
                cumbersome,'' which can negatively impact efforts to secure U.S.
                national interests, thereby justifying application of the foreign
                affairs exemption); East Bay Sanctuary Covenant, 909 F.3d at 1252-53
                (9th Cir. 2018) (suggesting that reliance on the exemption is justified
                where the Government ``explain[s] how immediate publication of the
                Rule, instead of announcement of a proposed rule followed by a thirty-
                day period of notice and comment'' is necessary in light of the
                Government's foreign affairs efforts).
                 The United States and Mexico have been engaged in ongoing
                discussions regarding both regional and bilateral approaches to asylum.
                This interim final rule will strengthen the ability of the United
                States to address the crisis at the southern border and therefore
                facilitate the likelihood of success in future negotiations. This rule
                thus supports the President's foreign policy with respect to Mexico and
                the Northern Triangle countries in this area and is exempt from the
                notice-and-comment and delayed-effective-date requirements in 5 U.S.C.
                553. See Am. Ass'n of Exps. & Imps.-Textile & Apparel Grp., 751 F.2d at
                1249 (noting that the foreign affairs exception covers agency actions
                ``linked intimately with the Government's overall political agenda
                concerning relations with another country''); Yassini v. Crosland, 618
                F.2d 1356, 1361 (9th Cir. 1980) (because an immigration directive ``was
                implementing the President's foreign policy,'' the action ``fell within
                the foreign affairs function and good cause exceptions to the notice
                and comment requirements of the APA'').
                 Invoking the APA's foreign affairs exception is also consistent
                with past rulemakings. In 2016, for example, in response to diplomatic
                developments between the United States and Cuba, DHS changed its
                regulations concerning flights to and from the island via an
                immediately effective interim final rule. Flights to and From Cuba, 81
                FR 14948, 14952 (Mar. 21, 2016). In a similar vein, DHS and the State
                Department recently provided notice that they were eliminating an
                exception to expedited removal for certain Cuban nationals. The notice
                explained that the change in policy was consistent with the foreign
                affairs exception for rules subject to notice-and-comment requirements
                because the change was central to ongoing negotiations between the two
                countries. Eliminating Exception To Expedited Removal Authority for
                Cuban Nationals Encountered in the United States or Arriving by Sea, 82
                FR 4902, 4904-05 (Jan. 17, 2017).
                B. Regulatory Flexibility Act
                 The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
                the Small Business Regulatory Enforcement Fairness Act of 1996,
                requires an agency to prepare and make available to the public a
                regulatory flexibility analysis that describes the effect of the rule
                on small entities (i.e., small businesses, small organizations, and
                small governmental jurisdictions). A regulatory flexibility analysis is
                not required when a rule is exempt from notice-and-comment rulemaking.
                C. Unfunded Mandates Reform Act of 1995
                 This interim final rule will not result in the expenditure by
                state, local, and tribal governments, in the aggregate, or by the
                private sector, of $100 million or more in any one year, and it will
                not significantly or uniquely affect small governments. Therefore, no
                actions were deemed necessary under the provisions of the Unfunded
                Mandates Reform Act of 1995.
                D. Congressional Review Act
                 This interim final rule is not a major rule as defined by section
                804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not
                result in an annual effect on the economy of $100 million or more; a
                major increase in costs or prices; or significant adverse effects on
                competition, employment, investment, productivity, innovation, or on
                the ability of United States-based companies to compete with foreign-
                [[Page 33843]]
                based companies in domestic and export markets.
                E. Executive Order 12866, Executive Order 13563, and Executive Order
                13771 (Regulatory Planning and Review)
                 This rule is not subject to Executive Order 12866 as it implicates
                a foreign affairs function of the United States related to ongoing
                discussions with potential impact on a set of specified international
                relationships. As this is not a regulatory action under Executive Order
                12866, it is not subject to Executive Order 13771.
                F. Executive Order 13132 (Federalism)
                 This rule will not have substantial direct effects on the States,
                on the relationship between the national government and the States, or
                on the distribution of power and responsibilities among the various
                levels of government. Therefore, in accordance with section 6 of
                Executive Order 13132, it is determined that this rule does not have
                sufficient federalism implications to warrant the preparation of a
                federalism summary impact statement.
                G. Executive Order 12988 (Civil Justice Reform)
                 This rule meets the applicable standards set forth in sections 3(a)
                and 3(b)(2) of Executive Order 12988.
                H. Paperwork Reduction Act
                 This rule does not propose new, or revisions to existing,
                ``collection[s] of information'' as that term is defined under the
                Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
                35, and its implementing regulations, 5 CFR part 1320.
                List of Subjects
                8 CFR Part 208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 1003
                 Administrative practice and procedure, Aliens, Immigration, Legal
                services, Organization and functions (Government agencies).
                8 CFR Part 1208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                Regulatory Amendments
                DEPARTMENT OF HOMELAND SECURITY
                 Accordingly, for the reasons set forth in the preamble, the
                Secretary of Homeland Security amends 8 CFR part 208 as follows:
                PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                1. The authority citation for part 208 continues to read as follows:
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                VII of Public Law 110-229; 8 CFR part 2.
                0
                2. Section 208.13 is amended by adding paragraphs (c)(4) and (5) to
                read as follows:
                Sec. 208.13 Establishing asylum eligibility.
                * * * * *
                 (c) * * *
                 (4) Additional limitation on eligibility for asylum.
                Notwithstanding the provisions of Sec. 208.15, any alien who enters,
                attempts to enter, or arrives in the United States across the southern
                land border on or after July 16, 2019, after transiting through at
                least one country outside the alien's country of citizenship,
                nationality, or last lawful habitual residence en route to the United
                States, shall be found ineligible for asylum unless:
                 (i) The alien demonstrates that he or she applied for protection
                from persecution or torture in at least one country outside the alien's
                country of citizenship, nationality, or last lawful habitual residence
                through which the alien transited en route to the United States, and
                the alien received a final judgment denying the alien protection in
                such country;
                 (ii) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (iii) The only countries through which the alien transited en route
                to the United States were, at the time of the transit, not parties to
                the 1951 United Nations Convention relating to the Status of Refugees,
                the 1967 Protocol Relating to the Status of Refugees, or the United
                Nations Convention against Torture and Other Cruel, Inhuman or
                Degrading Treatment or Punishment.
                 (5) Non-binding determinations. Determinations made with respect to
                paragraph (c)(4)(ii) of this section are not binding on Federal
                departments or agencies in subsequent determinations of eligibility for
                T or U nonimmigrant status under section 101(a)(15)(T) or (U) of the
                INA or for benefits or services under 22 U.S.C. 7105 or 8 U.S.C.
                1641(c)(4).
                0
                3. In Sec. [thinsp]208.30, revise the section heading, the first
                sentence of paragraph (e)(2), and paragraphs (e)(3) and (5) to read as
                follows:
                Sec. [thinsp]208.30 Credible fear determinations involving stowaways
                and applicants for admission who are found inadmissible pursuant to
                section 212(a)(6)(C) or 212(a)(7) of the Act, whose entry is limited or
                suspended under section 212(f) or 215(a)(1) of the Act, or who failed
                to apply for protection from persecution in a third country where
                potential relief is available while en route to the United States.
                * * * * *
                 (e) * * *
                 (2) Subject to paragraph (e)(5) of this section, an alien will be
                found to have a credible fear of persecution if there is a significant
                possibility, taking into account the credibility of the statements made
                by the alien in support of the alien's claim and such other facts as
                are known to the officer, the alien can establish eligibility for
                asylum under section 208 of the Act or for withholding of removal under
                section 241(b)(3) of the Act. * * *
                 (3) Subject to paragraph (e)(5) of this section, an alien will be
                found to have a credible fear of torture if the alien shows that there
                is a significant possibility that he or she is eligible for withholding
                of removal or deferral of removal under the Convention Against Torture,
                pursuant to Sec. 208.16 or Sec. 208.17.
                * * * * *
                 (5)(i) Except as provided in this paragraph (e)(5)(i) or paragraph
                (e)(6) of this section, if an alien is able to establish a credible
                fear of persecution 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 Act, or to withholding of
                removal contained in section 241(b)(3)(B) of the Act, the Department of
                Homeland Security shall nonetheless place the alien in proceedings
                under section 240 of the Act for full consideration of the alien's
                claim, if the alien is not a stowaway. If the alien is a stowaway, the
                Department shall place the alien in proceedings for consideration of
                the alien's claim pursuant to Sec. 208.2(c)(3).
                 (ii) If the alien is found to be an alien described in Sec.
                208.13(c)(3), then the asylum officer shall enter a negative credible
                fear determination with respect to the alien's intention to apply for
                asylum. The Department shall nonetheless place the alien in proceedings
                under section 240 of the Act for full consideration of the alien's
                [[Page 33844]]
                claim for withholding of removal under section 241(b)(3) of the Act, or
                for withholding or deferral of removal under the Convention Against
                Torture, if the alien establishes, respectively, a reasonable fear of
                persecution or torture. However, if an alien fails to establish, during
                the interview with the asylum officer, a reasonable fear of either
                persecution or torture, the asylum officer will provide the alien with
                a written notice of decision, which will be subject to immigration
                judge review consistent with paragraph (g) of this section, except that
                the immigration judge will review the reasonable fear findings under
                the reasonable fear standard instead of the credible fear standard
                described in paragraph (g) and in 8 CFR 1208.30(g).
                 (iii) If the alien is found to be an alien described as ineligible
                for asylum in Sec. 208.13(c)(4), then the asylum officer shall enter a
                negative credible fear determination with respect to the alien's
                application for asylum. The Department shall nonetheless place the
                alien in proceedings under section 240 of the Act for consideration of
                the alien's claim for withholding of removal under section 241(b)(3) of
                the Act, or for withholding or deferral of removal under the Convention
                Against Torture, if the alien establishes, respectively, a reasonable
                fear of persecution or torture. The scope of review shall be limited to
                a determination of whether the alien is eligible for withholding or
                deferral of removal, accordingly. However, if an alien fails to
                establish, during the interview with the asylum officer, a reasonable
                fear of either persecution or torture, the asylum officer will provide
                the alien with a written notice of decision, which will be subject to
                immigration judge review consistent with paragraph (g) of this section,
                except that the immigration judge will review the reasonable fear
                findings under the reasonable fear standard instead of the credible
                fear standard described in paragraph (g) and in 8 CFR 1208.30(g).
                * * * * *
                DEPARTMENT OF JUSTICE
                 Accordingly, for the reasons set forth in the preamble, the
                Attorney General amends 8 CFR parts 1003 and 1208 as follows:
                PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                4. The authority citation for part 1003 continues to read as follows:
                 Authority: 5 U.S.C. 301; 6 U.S.C 521; 8 U.S.C. 1101, 1103,
                1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
                1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
                2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
                section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
                and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
                1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
                0
                5. In Sec. [thinsp]1003.42, revise paragraph (d) to read as follows:
                Sec. [thinsp]1003.42 Review of credible fear determination.
                * * * * *
                 (d) Standard of review. (1) The immigration judge shall make a de
                novo determination as to whether there is a significant possibility,
                taking into account the credibility of the statements made by the alien
                in support of the alien's claim and such other facts as are known to
                the immigration judge, that the alien could establish eligibility for
                asylum under section 208 of the Act or withholding under section
                241(b)(3) of the Act or withholding or deferral of removal under the
                United Nations Convention Against Torture and Other Cruel, Inhuman or
                Degrading Treatment or Punishment.
                 (2) 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)(ii), the immigration judge shall first
                review de novo the determination that the alien is described in 8 CFR
                208.13(c)(3) or 1208.13(c)(3) prior to any further review of the asylum
                officer's negative determination.
                 (3) If the alien is determined to be an alien described as
                ineligible for asylum in 8 CFR 208.13(c)(4) or 1208.13(c)(4) and is
                determined to lack a reasonable fear under 8 CFR 208.30(e)(5)(iii), the
                immigration judge shall first review de novo the determination that the
                alien is described as ineligible for asylum in 8 CFR 208.13(c)(4) or
                1208.13(c)(4) prior to any further review of the asylum officer's
                negative determination.
                * * * * *
                PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                6. The authority citation for part 1208 continues to read as follows:
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                VII of Public Law 110-229.
                0
                7. In Sec. 1208.13, add paragraphs (c)(4) and (5) to read as follows:
                Sec. 1208.13 Establishing asylum eligibility.
                * * * * *
                 (c) * * *
                 (4) Additional limitation on eligibility for asylum.
                Notwithstanding the provisions of 8 CFR 208.15, any alien who enters,
                attempts to enter, or arrives in the United States across the southern
                land border on or after July 16, 2019, after transiting through at
                least one country outside the alien's country of citizenship,
                nationality, or last lawful habitual residence en route to the United
                States, shall be found ineligible for asylum unless:
                 (i) The alien demonstrates that he or she applied for protection
                from persecution or torture in at least one country outside the alien's
                country of citizenship, nationality, or last lawful habitual residence
                through which the alien transited en route to the United States and the
                alien received a final judgment denying the alien protection in such
                country;
                 (ii) The alien demonstrates that he or she satisfies the definition
                of ``victim of a severe form of trafficking in persons'' provided in 8
                CFR 214.11; or
                 (iii) The only country or countries through which the alien
                transited en route to the United States were, at the time of the
                transit, not parties to the 1951 United Nations Convention relating to
                the Status of Refugees, the 1967 Protocol, or the United Nations
                Convention against Torture and Other Cruel, Inhuman or Degrading
                Treatment or Punishment.
                 (5) Non-binding determinations. Determinations made with respect to
                paragraph (c)(4)(ii) of this section are not binding on Federal
                departments or agencies in subsequent determinations of eligibility for
                T or U nonimmigrant status under section 101(a)(15)(T) or (U) of the
                Act or for benefits or services under 22 U.S.C. 7105 or 8 U.S.C.
                1641(c)(4).
                0
                8. In Sec. [thinsp]1208.30, revise the section heading and paragraph
                (g)(1) to read as follows:
                Sec. [thinsp]1208.30 Credible fear determinations involving stowaways
                and applicants for admission who are found inadmissible pursuant to
                section 212(a)(6)(C) or 212(a)(7) of the Act, whose entry is limited or
                suspended under section 212(f) or 215(a)(1) of the Act, or who failed
                to apply for protection from persecution in a third country where
                potential relief is available while en route to the United States.
                * * * * *
                 (g) * * *
                 (1) Review by immigration judge of a mandatory bar finding. (i) If
                the alien is determined to be an alien described in 8 CFR 208.13(c)(3)
                or 1208.13(c)(3) and is determined to lack a reasonable fear under 8
                CFR 208.30(e)(5), the immigration judge shall first review de novo the
                determination that the alien is described in 8 CFR 208.13(c)(3) or
                1208.13(c)(3). If the immigration judge
                [[Page 33845]]
                finds that the alien is not described in 8 CFR 208.13(c)(3) or
                1208.13(c)(3), then the immigration judge shall vacate the order of the
                asylum officer, and DHS may commence removal proceedings under section
                240 of the Act. If the immigration judge concurs with the credible fear
                determination that the alien is an alien described in 8 CFR
                208.13(c)(3) or 1208.13(c)(3), the immigration judge will then review
                the asylum officer's negative decision regarding reasonable fear made
                under 8 CFR 208.30(e)(5) consistent with paragraph (g)(2) of this
                section, except that the immigration judge will review the findings
                under the reasonable fear standard instead of the credible fear
                standard described in paragraph (g)(2).
                 (ii) If the alien is determined to be an alien described as
                ineligible for asylum in 8 CFR 208.13(c)(4) or 1208.13(c)(4) and is
                determined to lack a reasonable fear under 8 CFR 208.30(e)(5), the
                immigration judge shall first review de novo the determination that the
                alien is described as ineligible for asylum in 8 CFR 208.13(c)(4) or
                1208.13(c)(4). If the immigration judge finds that the alien is not
                described as ineligible for asylum in 8 CFR 208.13(c)(4) or
                1208.13(c)(4), then the immigration judge shall vacate the order of the
                asylum officer, and DHS may commence removal proceedings under section
                240 of the Act. If the immigration judge concurs with the credible fear
                determination that the alien is an alien described as ineligible for
                asylum in 8 CFR 208.13(c)(4) or 1208.13(c)(4), the immigration judge
                will then review the asylum officer's negative decision regarding
                reasonable fear made under 8 CFR 208.30(e)(5) consistent with paragraph
                (g)(2) of this section, except that the immigration judge will review
                the findings under the reasonable fear standard instead of the credible
                fear standard described in paragraph (g)(2).
                * * * * *
                 Approved:
                 Dated: July 12, 2019.
                Kevin K. McAleenan,
                Acting Secretary of Homeland Security.
                 Approved:
                 Dated: July 12, 2019.
                William P. Barr,
                Attorney General.
                [FR Doc. 2019-15246 Filed 7-15-19; 8:45 am]
                BILLING CODE 4410-30-P; 9111-97-P
                

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