Asylum Eligibility and Procedural Modifications

 
CONTENT
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\
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    \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).
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    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.
1641(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\
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    \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'').
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[[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