Asylum Eligibility and Procedural Modifications
| Citation | 85 FR 82260 |
| Record Number | 2020-27856 |
| Published date | 17 December 2020 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 85 Issue 243 (Thursday, December 17, 2020)
[Federal Register Volume 85, Number 243 (Thursday, December 17, 2020)]
[Rules and Regulations]
[Pages 82260-82290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27856]
[[Page 82259]]
Vol. 85
Thursday,
No. 243
December 17, 2020
Part IVDepartment of Homeland Security-----------------------------------------------------------------------Department of Justice-----------------------------------------------------------------------Executive Office for Immigration Review-----------------------------------------------------------------------8 CFR Parts 208 and 1208Asylum Eligibility and Procedural Modifications; Final Rule
Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 /
Rules and Regulations
[[Page 82260]]
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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 Part 1208
[EOIR Docket No. 19-0111; Dir. Order 06-2021]
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: Final rule.
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SUMMARY: On July 16, 2019, the Department of Justice and the Department
of Homeland Security (``DOJ,'' ``DHS,'' or, collectively, ``the
Departments'') published an interim final rule (``IFR'') governing
asylum claims in the context of aliens who enter or attempt to enter
the United States across the southern land border between the United
States and Mexico (``southern land border'') after failing to apply for
protection from persecution or torture while in a third country through
which they transited en route to the United States. This final rule
responds to comments received on the IFR and makes minor changes to
regulations implemented or affected by the IFR for clarity and
correction of typographical errors.
DATES: This rule is effective on January 19, 2021.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Purpose and Summary of the Interim Final Rule
On July 16, 2019, the Departments published an IFR 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 any one of the
third countries through which they transited en route to the United
States. Asylum Eligibility and Procedural Modifications, 84 FR 33829
(July 16, 2019).
A. Purpose of the Interim Final Rule 1
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\1\ The Departments adopt and incorporate herein the background
and discussion of the purposes of the rule as published in the
preamble to the IFR at 84 FR at 33830-35. Section I of the preamble
of this rule also contains a summary of the IFR preamble discussion.
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The IFR sought to address the large number of meritless asylum
claims that aliens are filing with the Departments. See 84 FR at 33830-
31. Such claims place an extraordinary strain on the Nation's
immigration system, undermine many of the humanitarian purposes of
asylum, exacerbate the humanitarian crisis of human smuggling, and
affect the United States' ongoing diplomatic negotiations with foreign
countries.
The IFR sought to mitigate the strain on the country's immigration
system by more efficiently identifying aliens who are misusing the
asylum system as a tool to enter and remain in the United States as
opposed to those 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.
The IFR also furthered the humanitarian purposes of asylum by
prioritizing 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 barring from
asylum those individuals whose primary purpose is to make the journey
to the United States rather than to seek protection, or those who could
have obtained protection in a another country, the Departments sought
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. 84 FR at 33831.
Additionally, the Departments sought to curtail the humanitarian
crisis created by human smugglers bringing men, women, and children
across the southern land 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 aimed to reduce human smuggling and its tragic effects. Id.
Finally, the Departments published the IFR to better position the
United States in its negotiations with foreign countries on migration
issues. The United States is engaged in ongoing diplomatic negotiations
with Mexico and various Central American countries regarding migration
issues in general, the control of the flow of aliens into the United
States (such as through continued implementation of the Migrant
Protection Protocols (``MPP'')), and the urgent need to address the
humanitarian and security crisis along the southern land border.\2\
Those ongoing discussions relate to negotiations with foreign countries
with a goal of forging bilateral and multilateral agreements in which
other countries will join the United States distributing the mass
migration burden among cooperative countries. The purpose of the
international agreements is to allocate responsibility between the
United States and third countries whereby one country or the other will
assume responsibility for adjudicating the claims of aliens who fear
removal to their home countries. 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 in the full range of these negotiations.
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\2\ Current Asylum Cooperative Agreements are discussed infra at
note 13.
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B. Legal Authority for the Interim Final Rule
The Departments issued the IFR pursuant to section 208(b)(2)(C) of
the Immigration and Nationality Act (``INA'' or ``the Act''), 8 U.S.C.
1158(b)(2)(C), and sections 103(a)(1), (a)(3), and (g) of the Act, 8
U.S.C. 1103(a)(1), (a)(3), and (g). See 84 FR at 33831-32.
C. Summary of Regulatory Changes Made by the Interim Final Rule
3
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\3\ The Departments reaffirm the explanation of the regulatory
changes as published in the preamble to the IFR. 84 FR at 33835-40.
A summary of the discussion in the IFR is further contained in
Section I of this preamble.
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The IFR revised 8 CFR 208.13 and 208.30 in Chapter I of title 8 of
the Code of Federal Regulations (``CFR'') and 1208.13, and 1208.30 in
Chapter V of title 8 of the CFR.
The IFR revised 8 CFR 208.13(c) and 8 CFR 1208.13(c) to add a new
mandatory bar to eligibility for asylum
[[Page 82261]]
for an alien who enters or attempts to enter the United States across
the southern land border 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. 8 CFR 208.13(c)(4),
1208.13(c)(4). The bar contains exceptions to its applicability for
three categories of aliens: (1) Aliens who demonstrate that they
applied for protection from persecution or torture in at least one of
the countries through which they transited en route to the United
States, other than their country of citizenship, nationality, or last
lawful habitual residence, and that they received a final judgment
denying protection in such country; (2) aliens who demonstrate that
they satisfy the definition of ``victim of a severe form of trafficking
in persons'' provided in 8 CFR 214.11; and (3) aliens who have
transited en route to the United States through only a country or
countries that, at the time of transit, were not parties to the 1951
Convention on the Status of Refugees (``Refugee Convention'' or ``1951
Convention''), the 1967 Protocol Relating to the Status of Refugees
(``Refugee Protocol'' or ``1967 Protocol''), or the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT'' or ``Convention Against Torture''). 8
CFR 208.13(c)(4), 1208.13(c)(4) (proposed).
The IFR also added the new limit on asylum eligibility in the
process for screening aliens who are subject to expedited removal under
section 235(b)(1) of the Act, 8 U.S.C. 1225(b)(1). 8 CFR 208.30(e)
(proposed). Pursuant to the IFR, DHS asylum officers were required to
determine whether an alien who has expressed a fear of persecution or
torture, or who has indicated an intention to apply for asylum, was
ineligible for asylum due to a failure to apply for protection in a
third country through which he or she transited. See 8 CFR 208.30(e)(2)
(proposed).
Under that process, if the asylum officer determined that the alien
is ineligible for asylum due to the bar at 8 CFR 208.13(c)(4), the
asylum officer would nevertheless consider whether the alien had a
reasonable fear of persecution or torture for purposes of potential
consideration by an immigration judge of withholding of removal and
deferral of removal claims under section 241(b)(3) of the Act and 8 CFR
208.16 and 208.17. See 8 CFR 208.30(e)(3) (proposed). If the asylum
officer had determined that an alien subject to the bar had established
a reasonable fear of persecution or torture, DHS would have then
referred the alien to an immigration judge for more comprehensive
removal proceedings under section 240 of the Act, 8 U.S.C. 1229a. 8 CFR
208.30(e)(5)(i) (proposed). However, if the alien had failed to
establish a reasonable fear of persecution or torture, the asylum
officer would have provided the alien with a written notice of decision
regarding both the application of the bar and the lack of reasonable
fear. 8 CFR 208.30(e)(5)(iii) (proposed). The asylum officer's findings
then would have been subject to immigration judge review under 8 CFR
208.30(g) and 8 CFR 1208.30(g), applying a reasonable possibility, not
significant possibility, standard. Id.
Under the IFR's provisions, the immigration judge's review of an
asylum officer's application of the third-country-transit bar and
accompanying negative ``reasonable fear'' finding, first would have
been reviewed de novo in regard to the determination that the alien is
ineligible for asylum as stated in 8 CFR 208.13(c)(4). 8 CFR
1003.42(d)(3), 1208.30(g)(2) (proposed). If the immigration judge had
agreed with the asylum officer's assessment that the bar at 8 CFR
208.13(c)(4) or 1208.13(c)(4) had applied, the immigration judge then
would have proceeded to review the asylum officer's negative reasonable
fear finding. 8 CFR 1208.30(g)(2) (proposed). If the immigration judge
instead had disagreed with the asylum officer's application of the
third-country-transit bar and concluded the alien is not ineligible for
asylum, the immigration judge would have vacated the asylum officer's
determination. Id. DHS then would have commenced removal proceedings
against the alien under section 240 of the Act, 8 U.S.C. 1229a, in
which the alien could have filed an application for asylum and
withholding of removal. Id.
D. Procedural Validity of the Interim Final Rule
The U.S. District Court for the District of Columbia vacated the
IFR on the ground that, in the court's view, the Departments failed to
demonstrate sufficient ``good cause'' or foreign policy reasons for
foregoing notice-and-comment rulemaking. Capital Area Immigrants'
Rights Coal. v. Trump (``CAIR II''), --- F. Supp. 3d ---, 2020 WL
3542481 (D.D.C. June 30, 2020). The Supreme Court, however, recently
held that an IFR containing all Administrative Procedure Act (``APA'')-
required elements of a notice of proposed rulemaking (``NPRM''), as
provided in 5 U.S.C. 553(b)-(d), satisfies the APA's procedural
requirements. Little Sisters of the Poor Saints Peter and Paul Home v.
Pennsylvania, 140 S. Ct. 2367, 2384-86 (2020) (``Little Sisters''). The
Court found that an IFR's publication as an IFR rather than an NPRM did
not invalidate the final rule; rather, the Court focused on whether
``fair notice'' was provided to the public. Id. at 2385 (quoting Long
Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007)).
Here, the IFR contained all APA-required elements of an NPRM: a
reference to legal authority, as required by 5 U.S.C. 553(b)(2) (84 FR
at 33832-34); a description of the terms and substance of the rule, as
required by 5 U.S.C. 553(b)(3) (84 FR at 33835-38); and a request for
public comment, as required by 5 U.S.C. 553(c) (84 FR at 33830). In
addition, this final rule provides a statement of the rule's purpose
and basis, as required by 5 U.S.C. 553(c). Further, this final rule is
hereby published 30 days prior to its effective date as required by 5
U.S.C. 553(d) and reiterated by the Court in Little Sisters. See 140 S.
Ct. at 2386.\4\ Accordingly, this rulemaking provides the requisite
notice and comment, and this final rule is procedurally sound. The
Departments are now issuing this final rule to address the numerous
comments received in response to the invitation publicly noticed in the
IFR, and to ensure clarity regarding how the IFR interacts with the
joint rule signed by the Attorney General and the Acting Secretary of
DHS [hereinafter ``Intervening Joint Final Rule''].\5\
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\4\ Although the IFR was not published with a 30-day delay in
its effective date, and although the IFR has been and will remain in
effect until this final rule's effective date, that fact does not
change whether this rulemaking complies with 5 U.S.C. 553, as the
same was true of the IFR and final rule at issue in Little Sisters.
See Religious Exemptions and Accommodations for Coverage of Certain
Preventive Services Under the Affordable Care Act, 82 FR 47792 (Oct.
13, 2017) (publishing the IFR at issue in Little Sisters with an
effective date of October 6, 2017); Religious Exemptions and
Accommodations for Coverage of Certain Preventive Services Under the
Affordable Care Act, 83 FR 57536 (Nov. 15, 2018) (publishing the
final rule at issue in Little Sisters with an effective date of
January 14, 2019).
\5\ On December 2, 2020, the Departments signed a joint final
rule [hereinafter ``Intervening Joint Final Rule''] that made
various amendments to the regulatory text as amended in the IFR
previous to this rulemaking. Upon publication of the Intervening
Joint Final Rule, certain amendments published in the IFR are no
longer necessary.
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II. Revisions to the Interim Final Rule in This Final Rule
Following careful review of the IFR and the public comments
received in response, this final rule makes the following changes,
pursuant to the Departments' authority under section 208(b)(2)(C) of
the Act, 8 U.S.C.
[[Page 82262]]
1158(b)(2)(C), and finalizes this regulatory action. This final rule
makes no additional changes to the IFR beyond the changes described
below.
A. Amendments to 8 CFR 208.13(c)(4)(i), (iii) and 1208.13(c)(4)(i),
(iii)
The IFR provided that an alien who enters, attempts to enter, or
arrives in the United States across the southern land border after
transiting through at least one country outside of the alien's home
country while en route to the United States will not be found
ineligible for asylum if (1) 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, (2) 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(a), or
(3) if 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
Refugee Convention or the Refugee Protocol.
The final rule removes the references to torture and to the CAT in
subparagraphs (i) and (iii) in deference to the concept that whether an
alien has applied for protection from torture and whether a country
through which an alien transits en route to the U.S. is a party to the
CAT may not have a direct correlation to the immigration benefit of
asylum, a grant of which is based on persecution or a well-founded fear
of persecution on account of a protected ground.
The final rule also changes the word ``countries'' in 8 CFR
208.13(c)(4)(iii) and 1208.13(c)(4)(iii) to the phrase ``country or
countries'' to avoid confusion regarding situations in which an alien
transits through only one country. No substantive change from the IFR
is intended by this clarification.
B. Amendment to 8 CFR 208.30(e)(5)(iii)
As published in the IFR, 8 CFR 208.30(e)(5)(iii) included a
statement that the scope of review for proceedings before an
immigration judge that involve an alien who an asylum officer has
determined (1) is ineligible for asylum due to the third-country-
transit bar at 8 CFR 208.13(c)(4) but (2) has a reasonable fear of
persecution or torture is ``limited to a determination of whether the
alien is eligible for withholding or deferral of removal.'' See 8 CFR
208.30(e)(5)(iii). In addition, the same paragraph stated these aliens
would be placed in section 240 removal proceedings ``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.'' See id. The Intervening Joint Final Rule
amended this section, however, and no further clarifying amendments in
this section and by this final rule are necessary.
C. Amendments to 8 CFR 208.30(e)(5)(i)
In 8 CFR 208.30(e)(5)(i), the Departments would have revised the
introductory language to correct a typographical error in the IFR by
removing the reference to ``paragraph (e)(5)(i)'' in 8 CFR
208.30(e)(5)(i) and to reflect the publication of the interim final
rule Implementing Bilateral and Multilateral Asylum Cooperative
Agreements Under the Immigration and Nationality Act, 84 FR 63994 (Nov.
19, 2019) (``ACA IFR''), which provides separate procedures in 8 CFR
208.30(e)(7) for certain aliens subject to bilateral or multilateral
agreements pursuant to section 208(a)(2)(A) of the Act, 8 U.S.C.
1158(a)(2)(A).\6\ The Intervening Joint Final Rule, however, amended
this section to make those corrections, and no further clarifying
amendments by this final rule are necessary.
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\6\ The ACA IFR modified title 8 of the CFR to provide for the
implementation of ``Asylum Cooperative Agreements,'' which are
authorized by section 208(a)(2)(A) of the Act, 8 U.S.C.
1158(a)(2)(A) and implemented by regulation primarily at 8 CFR
208.30(e)(6)-(7). Commenters alternately used the phrase ``safe
third country'' to describe these agreements reached under section
208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), likely because the
section of the U.S. Code related to such agreements is labelled the
``[s]afe third country'' exception. We have retained the ``safe
third country'' phrasing when summarizing those comments.
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D. Amendments to 8 CFR 1003.42
The IFR made edits to 8 CFR 1003.42 to account for the addition of
the third-country-transit bar in immigration judge reviews of credible-
fear determinations. The Intervening Joint Final Rule amended this
section and no further clarifying amendments by this final rule are
necessary.
E. Typographical Corrections
The Departments have also made a non-substantive amendment to
cross-references in regulations implicated by the IFR to change the
reference in 8 CFR 1208.13(c)(4) from 8 CFR 208.15 to 8 CFR 1208.15
because section 1208.13 is in Chapter V of 8 CFR, which governs EOIR,
and not Chapter I, which governs DHS.\7\
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\7\ The Intervening Joint Final Rule amended the cross-reference
in the IFR from ``8 CFR 1208.30(g)(2)'' to ``8 CFR 1208.30(g).''
Further, the Intervening Joint Final Rule amended 8 CFR
1208.30(g)(1)(ii) to include specific cross references that were
excluded from the IFR. No additional changes are necessary in this
rulemaking.
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III. Public Comments on the Interim Final Rule
A. Summary of Public Comments
On July 16, 2019, DHS and DOJ jointly published the IFR in EOIR
Docket No. 19-0504. The comment period associated with the IFR closed
on August 15, 2019, with 1,847 comments received.\8\ Individual or
anonymous commenters submitted the vast majority of comments. These
commenters were divided between commenters supporting the rule and
commenters opposing the rule. Of the 1,847 comments, 50 were submitted
by organizations, including non-government organizations, legal
advocacy groups, non-profit organizations, and religious organizations.
One of these organizations submitted a comment that provided support
for the rule, while the other organizations expressed opposition to the
rule.
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\8\ The Departments reviewed all comments that were submitted in
response to the rule. However, EOIR did not post 114 of the comments
to regulations.gov for public inspection. Of these comments, 1
included obscenities, 1 included an image of an unidentified minor
child, 2 included potential incitements to violence, 23 were
duplicates of another comment submitted by the same commenter, and
87 were non-substantive comments of either ``this is a test'' or
``please write your comment here'' and did not indicate either
support for or disagreement with the rule.
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B. Comments Expressing Support
Comment: The Departments received a significant number of comments
in support of the IFR. The majority of these commenters voiced general
support for the IFR and urged others to support the rule as well. The
commenters described a ``flood'' or ``avalanche'' of immigrants at the
southern land border and urged support for the IFR as a tool to deal
with a ``crisis.'' Commenters described the IFR as helping to close
``loopholes'' in the asylum process. Some commenters urged asylum
applicants to apply from their home country.
Response: The Departments note the general support for the rule.
The rule is designed neither to require nor allow applicants for asylum
under U.S. law to apply in their home countries, but rather to
generally require that an alien first apply under a third country's
laws outside the alien's country of citizenship, nationality, or last
lawful
[[Page 82263]]
habitual residence through which the alien transited en route to the
United States.
Comment: Commenters also indicated their support for the
Administration's immigration policies more generally. A significant
number of commenters demanded that the government build a border wall.
Many commenters urged the government to secure or completely close the
southern land border in order to prevent drug smuggling and human
trafficking, enhance national security, and prevent illegal
immigration. Likewise, commenters called for general reform of asylum
laws in order to prevent asylum abuse. Some commenters advocated
eliminating asylum altogether. Other commenters were concerned about
immigrants using public services and urged the government to focus
resources on American citizens. Commenters encouraged the enforcement
of existing immigration laws and requested pressure on Congress to
address broader immigration reform.
Response: The Departments note the support for enforcing the
Nation's immigration laws. The Departments, however, did not intend for
the rule to address the myriad asylum and immigration issues covered in
these comments. For example, this rule does not address building a
border wall, the availability of public benefits to aliens, or whether
Congress should enact comprehensive immigration reform. This rule is
limited to the asylum application process at the southern land border
and aims to (1) further the humanitarian purposes of asylum by more
expeditiously providing relief to trafficking victims and individuals
who are unable to obtain protection from persecution or torture
elsewhere, and (2) deter meritless asylum claims.
The Departments also strongly oppose eliminating asylum (which, in
any event, would require the enactment of legislation by Congress). As
stated in the Refugee Act of 1980, it is ``the historic policy of the
United States to respond to the urgent needs of persons subject to
persecution in their homelands'' through, among other tools, the asylum
process. Pub. L. 96-212, sec. 101(a), Mar. 17, 1980, 94 Stat. 102
(``Refugee Act''). The Departments remain committed to ensuring that
those asylees who most urgently need relief from persecution are able
to obtain it in a timely manner.
Comment: The Departments also received comments supporting the IFR
as a means to help alleviate ``the extraordinary strain placed on the
nation's immigration system by the unprecedented surge in meritless
asylum claims at the southern land border since 2013'' and ``the
consequent caseload backlogs caused by the record numbers of asylum
applications being filed.'' One organization also expressed support for
the rule as a means to ``curtail the humanitarian crisis created by
smugglers trafficking women, children, and entire family units.'' The
same organization suggested that the Departments amend the phrase,
``shall be found ineligible for asylum, unless'' in interim final
regulations 8 CFR 208.13(c)(4) and 1208.13(c)(4) to read ``shall be
presumptively ineligible for asylum in the exercise of discretion,
unless.''
Response: The Departments note the support for the IFR. The
Departments disagree with the suggested change to the regulatory text.
The rule is intended to serve as a bar to asylum eligibility for those
aliens described at 8 CFR 208.13(c)(4) and 1208.13(c)(4), not a bar
that an immigration judge or asylum officer may waive as a matter of
discretion. The use of a bar promotes uniform application and is
consistent with existing statutory bars in section 208(b)(2)(A) of the
Act, 8 U.S.C. 1158(b)(2)(A), and those instituted by regulation
pursuant to 208(b)(2)(C) of the Act, 8 U.S.C. 1158(b)(2)(C).
C. Comments Expressing Opposition
1. General Opposition to the Interim Final Rule and Assertions That the
Departments Have Exceeded Their Legal Authority
Comment: The Departments received several comments expressing
general opposition to the IFR. Some commenters expressed opposition to
the IFR without further explanation. Others asserted that the IFR
conflicts with the Act, without citing specific provisions, and others
opined that the Departments lack the authority to promulgate the IFR.
One commenter stated broad disbelief that anyone could support the IFR.
Response: Because these particular comments failed to articulate
specific reasoning underlying expressions of general opposition, DHS
and DOJ are unable to provide a more detailed response.
The Departments were well within their legal authority, however,
when promulgating the IFR.\9\ Congress, in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (``IIRIRA''), vested
the Departments with broad authority to establish conditions or
limitations on asylum. Public Law 104-208, Div. C, Sept. 30, 1996, 110
Stat. 3009, 3009-546. In fact, as the Supreme Court has recognized, ``a
major objective of IIRIRA was to protect the Executive's discretion
from undue interference.'' Dep't of Homeland Sec. v. Thuraissigiam, 140
S. Ct. 1959, 1966 (2020) (alteration and quotation marks omitted).
Congress created three categories of aliens who are barred from
applying for asylum and adopted six other mandatory bars to asylum
eligibility. IIRIRA, sec. 604(a), 110 Stat. at 3009-690 to 694
(codified at sections 208(a)(2)(A)-(C), (b)(2)(A)(i)-(vi) of the Act, 8
U.S.C. 1158(a)(2)(A)-(C), and (b)(2)(A)(i)-(vi)). These bars include
the asylum cooperative agreement bar to applying for asylum and the
firm resettlement bar to asylum eligibility. Id. The statutory list is
not exhaustive. Instead, Congress, in IIRIRA, further expressly
authorized the Attorney General to expound upon two bars to asylum
eligibility--the bars for ``particularly serious crimes'' and ``serious
nonpolitical offenses.'' INA 208(b)(2)(B)(ii), 8 U.S.C.
1158(b)(2)(B)(ii). Congress also vested the Attorney General with the
ability to establish by regulation ``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(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).\10\
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\9\ This section addresses general assertions that the
Departments lacked the legal authority to issue the IFR. Section
III.C.2 of this preamble addresses comments and responses regarding
the IFR's relation to specific provisions of the Act.
\10\ The Homeland Security Act of 2002 (``HSA''), Public Law
107-296, Nov. 25, 2002, 116 Stat. 2135, as amended, transferred many
immigration-related functions to a newly created DHS headed by the
Secretary of Homeland Security (``the Secretary''). The HSA charges
the Secretary with ``the administration and enforcement of this
chapter and all other laws relating to the immigration and
naturalization of aliens.'' INA 103(a)(1), 8 U.S.C. 1103(a)(1).
Further, the HSA authorizes the Secretary to take all actions
``necessary for carrying out'' the Act. INA 103(a)(3), 8 U.S.C.
1103(a)(3). The HSA nonetheless preserves authority over certain
immigration adjudications for EOIR, which is part of DOJ and, thus,
subject to the direction and regulation of the Attorney General. See
INA 103(g), 8 U.S.C. 1103(g); 6 U.S.C. 521. Accordingly, the
Secretary along with the Attorney General may establish limitations
and conditions on asylum eligibility under section 208(b)(2)(C) of
the Act, 8 U.S.C. 1158(b)(2)(C).
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As the Tenth Circuit has recognized, ``[t]his delegation of
authority means that Congress was prepared to accept administrative
dilution of the asylum guarantee in Sec. 1158(a)(1)'' that aliens
generally may file asylum applications, given that ``the statute
clearly empowers'' the Attorney General and the Secretary to ``adopt[ ]
further limitations'' on eligibility to apply for or receive asylum. R-
S-C v. Sessions, 869 F.3d 1176, 1187 & n.9 (10th Cir. 2017). In
authorizing ``additional limitations
[[Page 82264]]
and conditions'' by regulation, the statute gives the Attorney General
and the Secretary broad authority in determining what the ``limitations
and conditions'' should be. The Act instructs only that additional
limitations on eligibility are to be established ``by regulation,'' and
must be ``consistent with'' the rest of section 208 of the Act, 8
U.S.C. 1158. See INA 208(b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(2)(C),
(d)(5)(B).
The Attorney General has previously invoked section 208(b)(2)(C) of
the Act, 8 U.S.C. 1158(b)(2)(C), to limit eligibility for asylum based
on a ``fundamental change in circumstances'' and on the ability of an
applicant to safely relocate internally within a country. See Asylum
Procedures, 65 FR 76121, 76133-36 (Dec. 6, 2000) (codified at 8 CFR
208.13(b)(1)(i)(A), (B)).\11\ The courts in applying these limitations
have not questioned the Attorney General's authority to impose them.
See, e.g., Afriyie v. Holder, 613 F.3d 924, 934-36 (9th Cir. 2010)
(discussing the allocation of the burden of proof regarding the
reasonability of relocation); Uruci v. Holder, 558 F.3d 14, 19-20 (1st
Cir. 2009) (explaining that a Department of State country report may
demonstrate a ``fundamental change in circumstances'' sufficient to
rebut the presumption of well-founded fear of persecution). The courts
have also viewed section 208(b)(2)(C) as conferring broad authority,
see R-S-C, 869 F.3d at 1187, and have suggested that ineligibility
based on fraud would be authorized under it, Nijjar v. Holder, 689 F.3d
1077, 1082 (9th Cir. 2012) (noting that fraud could 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'').
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\11\ DOJ duplicated 8 CFR 208.13 in its entirety at 8 CFR
1208.13 following the codification of EOIR's regulations in Chapter
V of 8 CFR. Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003).
---------------------------------------------------------------------------
Regarding the comment that questions any support for the IFR, a
long-held principle of administrative law is that an agency, within its
congressionally delegated policymaking responsibilities, may ``properly
rely upon the incumbent administration's view of wise policy to inform
its judgments.'' Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 865 (1984). Accordingly, an agency may make policy
choices that Congress either inadvertently or intentionally left to be
resolved by the agency charged with administration of the statute,
given the current realities faced by the agency. See id. at 865-66.
Specifically in the immigration context, Congress has expressly
fortified the Executive's broad discretion to make policy decisions on
immigration matters without interference. As the Supreme Court
recognized, a ``major objective of IIRIRA'' was to protect the
Executive's discretion to oversee immigration matters from ``undue
interference by the courts; indeed, that can fairly be said to be the
theme of the legislation.'' Thuraissigiam, 140 S. Ct. at 1965
(alteration and quotation marks omitted).\12\ The current situation at
the southern land border, specifically the sharp increase of encounters
with aliens at the border, subsequent requests for asylum relief, and
the large number of meritless, fraudulent, or non-urgent asylum claims
that are straining the Nation's immigration system, prompted the
Departments to promulgate this rule. See 84 FR at 33830-31. As the
Supreme Court noted in Thuraissigiam, the past decade has seen a 1,883
percent increase in credible-fear claims, with about 50 percent of
those applicants found to have a credible fear never applying for
asylum. 140 S. Ct. at 1967-68. Moreover, fraudulent asylum claims can
be ``difficult to detect,'' given the expedited nature of the screening
process and the large caseload. Id. The Court noted a study in which 58
percent of randomly selected asylum applications contained indicators
of possible fraud, with 12 percent of those cases ultimately determined
to be fraudulent. Id. at 1967 n.10.
---------------------------------------------------------------------------
\12\ The Ninth Circuit recently concluded that the Attorney
General's discretion to limit eligibility for asylum was narrower
than the discretion to grant or deny asylum to aliens who are
eligible for such relief. See E. Bay Sanctuary Covenant v. Barr, 964
F.3d 832, 848 (9th Cir. 2020), pet. for reh'g en banc pending (filed
Oct. 5, 2020). Specifically, the court determined that the Attorney
General's discretion to limit asylum eligibility ``must be
consistent with the core principle'' of section 208 of the Act, 8
U.S.C. 1158. Id. The Departments agree that their actions limiting
eligibility must be ``consistent with'' section 208 of the Act, 8
U.S.C. 1158, and they promulgated the IFR with the understanding
that doing so was indeed consistent with that section. See 84 FR at
33834. To the extent that the Ninth Circuit disagrees with the
Departments' position on this matter, the Departments have provided
additional reasoning and evidence in this final rule to address such
concerns.
---------------------------------------------------------------------------
The current statutory framework accordingly leaves the Attorney
General (and, after the HSA, the Secretary too) significant discretion
to adopt additional bars to asylum eligibility. As further explained
above, Congress specifically delegated authority to the Attorney
General and the Secretary to ``establish additional limitations and
conditions . . . under which an alien shall be ineligible for asylum.''
INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
In Thuraissigiam, the Supreme Court recognized, in the context of
the credible-fear process, that restrictions on Executive discretion to
respond to strains on the immigration system and abuses of the system
could ``increase the burdens currently overwhelming our immigration
system.'' Thuraissigiam, 140 S. Ct. at 1966 (quotation marks omitted).
While Thuraissigiam ruled in the context of judicial review of
credible-fear findings, the Supreme Court acknowledged that such
burdens would exist ``[e]ven without the added step of judicial
review.'' Id. The Court recognized that ``[t]he majority of [credible-
fear claims] have proved to be meritless.'' Id. at 1967. The Court also
stated, as noted above, that detection of fraudulent asylum claims is
difficult, further noting that while all applications with indicators
are not fraudulent, characteristics of such fraud are frequent and
require more agency resources. See id. at 1967 & n.10. In light of
these reasons, a right to judicial review that prolonged what was
intended to be an expedited process could pose ``significant
consequences for the immigration system.'' Id. at 1967. The Court
stated that, in fact, the expedited process ``would augment the burdens
on that system'' rather than alleviate them, as intended by Congress,
because ``[o]nce a fear is asserted, the process would no longer be
expedited.'' Id.
Similarly, in the asylum context, the significant backlog in asylum
cases, the need to prioritize meritorious applications, and the vast
numbers of aliens attempting to enter at the southern land border all
threaten to overwhelm the immigration system. As the Supreme Court
recognized, over ``[t]he past decade'' about 50 percent of aliens who
were ``found to have a credible fear . . . did not pursue asylum,''
and, in 2019, ``a grant of asylum followed a finding of credible fear
just 15% of the time.'' Id. at 1966-67. Because aliens are only
required to meet a ``low bar'' for placement in the extensive
proceedings associated with asylum claims, see id., it is imperative
that the Departments establish clear criteria ensuring that such
proceedings are for those who have meritorious claims or urgently
require asylum protection in the United States, and such measures are
consistent with the Act in order to avoid overwhelming the immigration
system.
Through the publication of the IFR, the Departments have properly
exercised their congressionally delegated authority. Such policymaking
is well within the confines of permissible agency action.
[[Page 82265]]
2. Interim Final Rule and the Act
a. Asylum Cooperative Agreements
Comment: Commenters, including a number of organizations and
individual commenters, raised concerns that the IFR is inconsistent
with the Act's safe-third-country bar to applying for asylum. See INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A) (providing that an alien is
ineligible to apply for U.S. asylum and may be removed, pursuant to a
bilateral or multilateral agreement, to pursue his or her protection
claims in a country, other than the country of the alien's nationality
or last habitual residence, in which (1) ``the alien's life or freedom
would not be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion,'' and
where (2) ``the alien would have access to a full and fair procedure
for determining a claim to asylum or equivalent temporary
protection''). Some commenters argued that Congress intended for the
safe-third-country bar (or the safe-third-country bar coupled with the
firm resettlement bar at section 208(b)(2)(A)(vi) of the Act, 8 U.S.C.
1158(b)(2)(A)(vi)), to be the sole means by which an alien may be
denied asylum based on a relationship with a third country. Commenters
also stated that the IFR renders the safe-third-country bar superfluous
because the rule bars individuals from applying for asylum regardless
of whether the country was a signatory to a safe-third-country
agreement. Relatedly, commenters were concerned that the IFR is
inconsistent with the Act because the IFR does not require the United
States to have a bilateral or multilateral agreement with a third
country and instead focuses on whether the country is a party to
specified international accords. See 8 CFR 208.13(c)(4)(iii),
1208.13(c)(4)(iii). Commenters were also concerned that the IFR does
not adequately consider or require an individualized determination as
to whether a third country is ``safe'' for asylum seekers or has an
adequate system for granting protection against persecution and
torture. Some commenters stated that the United States must ensure that
no person faces persecution in a third country and that people have
access to a robust asylum system in a third country when seeking
protection.
Response: This rule is consistent with, and complementary to, the
Act's provision authorizing Asylum Cooperative Agreements with third
countries. See INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A) (``the ACA
bar''); 84 FR at 33834. The ACA bar operates as a bar to aliens who are
covered by such an agreement; such aliens would be barred from applying
for asylum in the U.S. pursuant to section 208(a)(2)(A) of the Act, 8
U.S.C. 1158(a)(2)(A).\13\ Under the Act, the United States has
statutory authority to negotiate agreements with third countries.
Moreover, nothing in the Act requires that an alien have first traveled
through, or sought protection, in that third country for the bar to
apply. Rather, the ACA bar authorizes removal of covered aliens to a
third country that has agreed to share responsibility with the United
States for considering such aliens' claims for asylum or equivalent
temporary protection. The authority to remove aliens under an Asylum
Cooperative Agreement is limited to only those countries with which the
United States has an agreement and that provide ``access to a full and
fair procedure for determining a claim to asylum or equivalent
temporary protection,'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)--a
requirement absent from this third-country-transit rule or the
statutory provision pursuant to which it is promulgated. As stated
previously, the third country to which an alien may be removed under
the ACA bar in section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A)
need not be a country through which the alien transited en route to the
United States.
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\13\ Since the enactment of the statutory provision authorizing
such agreements in IIRIRA in 1996, the United States has signed
agreements with Honduras, El Salvador, Guatemala, and Canada. See
Agreement Between the Government of the United States of America and
the Government of the Republic of Honduras for Cooperation in the
Examination of Protection Claims, 85 FR 25462 (May 1, 2020); DHS,
Joint Statement Between the U.S. Government and the Government of El
Salvador (Sept. 20, 2019), https://www.dhs.gov/news/2019/09/20/joint-statement-between-us-government-and-government-el-salvador
(last visited Dec. 10, 2020); Agreement Between the Government of
the United States of America and the Government of the Republic of
Guatemala on Cooperation Regarding the Examination of Protection
Claims, 84 FR 64095 (Nov. 20, 2019) (``U.S.-Guatemala ACA'');
Agreement for Cooperation in the Examination of Refugee Status
Claims from Nationals of Third Countries, U.S.-Can., State Dep't No.
05-35, Dec. 5, 2002, 2004 WL 3269854. The Government has previously
promulgated regulations implementing the agreement with Canada, see
8 CFR 208.30(e)(6), and the Government promulgated an IFR in
November 2019 establishing procedures for carrying out the remaining
agreements and any future agreements. See 84 FR at 63994. Not all of
these agreements are currently in force, however, because the
agreement with El Salvador has yet to become effective. Also, in the
case of Canada, a Canadian court held that the U.S.-Canada agreement
violates certain provisions of Canada's Constitution but suspended
the declaration of invalidity until January 22, 2021. Canadian
Council for Refugees v. Canada (Immigration, Refugees and
Citizenship), 2020 F.C. 770 (Fed. Ct.), appeal pending (Fed. Ct.
App.). On October 26, 2020, Canada's Federal Court of Appeal granted
a stay of the lower court's decision pending a final determination
of the Canadian Government's appeal. 2020 FCA 181 (Fed. Ct. App.
Oct. 26, 2020).
---------------------------------------------------------------------------
In addition, the ACA bar creates a bar to applying for asylum in
the United States--unlike this third-country-transit rule, which
creates a bar to asylum eligibility for aliens who have applied for
such relief in the United States. The ACA bar to applying for
protection serves a different purpose from creating a bar to
eligibility for protection. The ACA bar involves no determination about
the merits of an alien's underlying asylum claim, instead providing a
mechanism for an alien's protection claims to be considered fully by a
third country that has satisfied the criteria under section
208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), and agreed to help
share responsibility with the United States to provide relief to aliens
needing protection.
Nothing in the Act suggests that Congress intended for the ACA bar
at section 208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), or the ACA
bar coupled with the Act's firm resettlement bar at section
208(b)(2)(A)(vi) of the Act, 8 U.S.C. 1158(b)(2)(A)(vi), to prevent the
Departments from establishing limitations on asylum eligibility based
on an alien's travel through, or relationship with, a third country. As
discussed above in Section III.C.1 of this preamble, Congress provided
the Attorney General (and, now, the Secretary) with authority to
implement additional conditions and limitations on asylum eligibility
at the same time that Congress enacted the ACA bar. INA 208(b)(2)(C), 8
U.S.C. 1158(b)(2)(C). Congress thus authorized the Attorney General and
the Secretary to establish conditions and limitations on asylum
eligibility in addition to, for example, the ACA bar and firm
resettlement bar.
Further, an alien's failure to seek such protection in a third
country has long been recognized as a factor that could be considered
in terms of whether to deny asylum as a matter of discretion,
independent of the ACA or firm resettlement bars. See Matter of Pula,
19 I&N Dec. 467, 473-74 (BIA 1987), superseded in part on other grounds
as stated in Andriasian v. INS, 180 F.3d 1033, 1043-44 & n.17 (9th Cir.
1999).
The rule thereby complements, rather than conflicts with, section
208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A). The ACA bar is
designed ``to prevent forum-shopping by asylum seekers, and to promote
the orderly handling of asylum claims.'' See United States v. Malenge,
294 F. App'x 642, 645 (2d Cir. 2008) (discussing the purpose of the
agreement between the United States and Canada pursuant to section
208(a)(2)(A) of the Act, 8 U.S.C.
[[Page 82266]]
1158(a)(2)(A)). This rule likewise aims to prevent aliens from ``forum-
shopping . . . after transiting through one or more third countries
where [an alien] could have sought protection, but did not.'' 84 FR at
33834.
Further, the rule is not inconsistent with the Act merely because
it addresses, at a high level of generality, a subject matter similar
to the ACA bar (i.e., the availability of asylum for aliens who may be
able to obtain protection in a third country). To read the existing
exceptions for the availability of asylum as occupying the entire field
of permissible exceptions on the same or related topics would render
meaningless the Act's express grant of authority to the Attorney
General and Secretary to establish additional limitations on asylum
eligibility. See INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see also TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533
U.S. 167, 174 (1994) (observing that a statute should be construed so
that ``no clause, sentence, or word shall be superfluous, void, or
insignificant'' (quotation marks omitted)); Stone v. INS, 514 U.S. 386,
397 (1995) (``When Congress acts to amend a statute, we presume it
intends its amendment to have real and substantial effect.''). One
district court considering the legality of the IFR has already
expressed strong doubts about such an argument because it would place
too great a restriction on the Attorney General's and Secretary's
authority. See Capital Area Immigrants' Rights Coal. v. Trump (``CAIR
I''), --- F. Supp. 3d ---, 2019 WL 3436501, at *3 (D.D.C. July 24,
2019), ECF No. 28 (explaining in an oral ruling that ``the plaintiffs
are reading too strict a limitation on to the Attorney General's
authority'' and expressing strong doubts regarding the argument that
``anytime the Attorney General enacts a limitation that covers the same
concern as one of those addressed by the statutory bars, it's
necessarily inconsistent'' with the Act).\14\ The Supreme Court has
likewise rejected a similar argument: In Trump v. Hawaii, the Court
determined that the Act's provisions regarding the entry of aliens
``did not implicitly foreclose the Executive from imposing tighter
restrictions,'' even in circumstances in which those restrictions
concerned a subject ``similar'' to the one that Congress ``already
touch[ed] on in the INA.'' 138 S. Ct. 2392, 2411-12 (2018). Thus, by
the same reasoning, Congress's statutory command that certain aliens
are ineligible to apply for asylum does not deprive the Attorney
General and Secretary of authority, by regulation, to deny asylum
eligibility for certain other aliens whose circumstances may--in a
general sense--be ``similar.''
---------------------------------------------------------------------------
\14\ The Departments acknowledge that the district court in the
CAIR litigation later vacated the IFR in ruling on cross motions for
summary judgment. See ``CAIR II,'' --- F. Supp. 3d ---, 2020 WL
3542481. The court, however, addressed only the plaintiffs'
procedural claim under the APA and did not discuss the claim that
the IFR is contrary to the INA. See id. at *5 (holding that
``Defendants unlawfully promulgated the rule without complying with
the APA's notice-and-comment requirements,'' and thus the court
``need not reach Plaintiffs' other claims concerning the validity of
the rule''). The Departments also acknowledge that the Ninth Circuit
has concluded that the IFR is not consistent with the ACA bar. See
E. Bay Sanctuary Covenant, 964 F.3d at 846-49. The Ninth Circuit's
preliminary injunction remains stayed pending the court's decision
on the Government's petition for rehearing en banc and, if that
petition is denied, the Government's decision to file a petition for
writ of certiorari and, if such writ is filed, the Supreme Court's
disposition. Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019).
To the extent that these decisions conflict, the Departments believe
that the decision in CAIR I is more persuasive.
---------------------------------------------------------------------------
The Departments emphasize that the rule is consistent with, yet
distinct from, the ACA bar. The rule is distinguishable because it
provides for a tailored determination of whether an alien passed
through a country where he or she could have applied for relief, but
did not do so. The rule is consistent with the Act's ACA bar because,
among the other reasons detailed above, the rule's denial of asylum
where relief could have been pursued in a transit country is entirely
consistent with the ACA bar's objective to help ease the strain on the
overburdened immigration system. See 84 FR at 63996. Thus, far from
conflicting with the ACA bar, this rule complements it, reaching
additional classes of aliens who have requested asylum, expressed a
fear of return, or claimed a fear of persecution or torture when being
apprehended or encountered by DHS.
Regarding comments that the IFR does not adequately consider
whether a third country is ``safe'' for asylum seekers, the Departments
note that 8 CFR 208.13(c)(4)(iii) and 1208.13(c)(4)(iii) apply only if
an alien has transited through a third country that is a party to one
of the specified international conventions that establish non-
refoulement obligations. By becoming a party to those treaties, the
third countries in which an alien may be required to apply for
protection under this rule are obligated, based on the treaties they
have joined, to provide protection from removal of an individual to
country where his or her life or freedom would be threatened on account
of a protected ground.\15\ Aliens who choose not to apply for relief
within such a country because--notwithstanding the country's
obligations under international conventions--because of their concerns
about that country's safety, their fear of persecution or torture in
the transit country, the inability of the transit country to offer them
protection, or other concerns may be considered for withholding of
removal under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or
withholding of removal or deferral of removal under the CAT
regulations, in the United States.
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\15\ For example, a third country that is party to the 1951
Convention provides protection to refugees consistent with its non-
refoulement obligations under Article 33.1 of the 1951 Convention.
See 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176 (``No Contracting
State shall expel or return (`refouler') a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.'').
---------------------------------------------------------------------------
Comment: Some commenters noted that the United States has entered
into only one ``safe third country agreement,'' an agreement with
Canada.\16\ Commenters further observed that neither Mexico nor
Guatemala has entered into safe-third-country agreements with the
United States.\17\ One commenter emphasized that the legality of the
United States' safe-third-country agreement with Guatemala is unclear.
Other commenters argued that, under the Act, it is not enough that the
United States has entered into a safe-third-country agreement; the
third country must offer applicants a full and fair procedure.
---------------------------------------------------------------------------
\16\ These comments were submitted before the United States
signed the previously mentioned agreements with Honduras and El
Salvador.
\17\ These comments were submitted before the United States
implemented the U.S.-Guatemala ACA. See 84 FR 64095.
---------------------------------------------------------------------------
Response: As previously noted, this rule is promulgated pursuant to
the authority provided under section 208(b)(2)(C) of the Act, 8 U.S.C.
1158(b)(2)(C), which authorizes the placement of `` `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.'' 84 FR at 33832. This rule is not
intended to implement an Asylum Cooperative Agreement under section
208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A). Any discussion of the
legality or sufficiency of the Asylum Cooperative Agreement between the
United States and Guatemala, or any other country, is beyond the scope
of this rulemaking.
b. Firm Resettlement
Comment: Numerous commenters expressed concern that the IFR
conflicts
[[Page 82267]]
with the firm resettlement bar to asylum eligibility because the rule
precludes eligibility for asylum for aliens who have passed through a
third country even if they have not been offered permanent status in
that third country. See INA 208(b)(2)(A)(vi), 8 U.S.C.
1158(b)(2)(A)(vi) (providing for the firm resettlement bar, which
renders an applicant who ``was firmly resettled in another country
prior to arriving in the United States'' ineligible for asylum).
Commenters argued that Congress intended that an alien have a more
significant relationship with a third country--i.e., be firmly
resettled in that country rather than be merely transiting through the
country--to be rendered ineligible for asylum.
Some commenters also opposed the IFR because it does not account
for whether an alien is eligible for permanent legal status in the
third country and because it does not account for the risk of harm that
an alien might face in the third country.
Response: The Departments reiterate the explanation in the IFR that
it is consistent with the firm resettlement bar under section
208(b)(2)(A)(vi) of the Act, 8 U.S.C. 1158(b)(2)(A)(vi). 84 FR at
33834.\18\ The rule is distinct from the firm resettlement bar. While
both the rule and the firm resettlement bar seek to reduce forum-
shopping by aliens, compare 84 FR at 33834, with INA 208(b)(2)(A)(vi),
8 U.S.C. 1158(b)(2)(A)(vi), this transit rule is not linked to, and
takes a different approach from, the firm resettlement bar. The rule
does not entirely eliminate asylum eligibility based on an alien's stay
in another country. Rather, under the rule, aliens remain eligible for
asylum so long as they applied for and were denied protection in the
relevant third country. See 8 CFR 208.13(c)(4)(iii),
1208.13(c)(4)(iii).
---------------------------------------------------------------------------
\18\ The Departments note that the Ninth Circuit recently held
that the IFR was inconsistent with section 208 of the INA, 8 U.S.C.
1158, including the firm resettlement bar in section
208(b)(2)(A)(vi) of the Act, 8 U.S.C. 1158(b)(2)(A)(vi). E. Bay
Sanctuary Covenant, 964 F.3d at 846-49; see also Barr, 140 S. Ct. 3
(staying preliminary injunction regarding the IFR). The Departments,
however, have addressed the Ninth Circuit's concerns by further
explaining in this final rule how the transit bar is consistent with
section 208 of the Act, 8 U.S.C. 1158.
---------------------------------------------------------------------------
The existence of the firm resettlement bar should not be
interpreted as an implicit foreclosure of additional limitations on
asylum eligibility for aliens who have travelled through other
countries. The Supreme Court, as explained above, has already rejected
a similar approach to reading the Act. See Trump, 138 S. Ct. at 2411-12
(noting that the Act's explicit statutory provisions ``did not
implicitly foreclose the Executive from imposing tighter restrictions''
in ``similar'' areas). Further, the firm resettlement bar and this
final rule operate in distinctly different manners. The firm
resettlement bar merely prohibits the Executive from granting asylum to
aliens who have firmly resettled in a third country prior to arriving
in the United States. That bar does not require that those aliens who
have not firmly resettled should be eligible for or be granted asylum.
As a discretionary form of relief, no alien, even if qualified for it,
is entitled to it. Thuraissigiam, 140 S. Ct. at 1965 n.4 (``A grant of
asylum enables an alien to enter the country, but even if an applicant
qualifies, an actual grant of asylum is discretionary.''). Thus, any
decision on eligibility for such aliens remains committed to the
discretion of the Attorney General and the Secretary either through
their rulemaking authority, see INA 208(b)(2)(C), 8 U.S.C.
1158(b)(2)(C), or through the general requirement that an alien
demonstrate that he or she merits a favorable exercise of discretion,
see INA 208(b)(1), 8 U.S.C. 1158(b)(1). The rule constitutes an
exercise of this discretion that supplies a rule of decision for aliens
who fall outside the scope of the firm resettlement bar. Put
differently, Congress mandated that certain aliens should be excluded
from asylum eligibility in order to prevent forum-shopping by asylum
seekers. But Congress left to the Attorney General (and, after the HSA,
the Secretary) to promulgate additional rules regarding asylum
eligibility--such as this final rule--that might also deter forum-
shopping. The rule accordingly does not conflict with the firm
resettlement bar's prohibition on granting asylum to certain aliens.
See, e.g., Cheney R. Co., Inc. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990)
(``[T]he contrast between Congress's mandate in one context with its
silence in another suggests not a prohibition but simply a decision not
to mandate any solution in the second context, i.e., to leave the
question to agency discretion.'').
Moreover, the rule reasonably complements the firm resettlement
bar. That bar, as noted above, categorically denies eligibility to
aliens who have ``firmly resettled'' in a different country because
those aliens do not need the protections afforded to asylees in this
country. The Departments have concluded that aliens who do not even
apply for asylum in a third country are similarly unlikely to warrant
the protections associated with asylum. The firm resettlement bar and
the rule thus complement one another by denying eligibility to those
aliens who are least likely to need asylum, and there accordingly is no
inconsistency between the two provisions. Both provisions, in other
words, advance the overall goal of the asylum statute by focusing
relief on applicants who have ``nowhere else to turn.'' Sall v.
Gonzales, 437 F.3d 229, 233 (2d Cir. 2006). Both bars also are
reasonably aimed at `` `encourag[ing]' other nations `to provide
assistance and resettlement.' '' Pao Yang v. INS, 79 F.3d 932, 939 (9th
Cir. 1996) (quoting section 101 of the Refugee Act).
Comment: Some commenters stated that the IFR effectively writes the
firm resettlement bar out of the Act because it sets forth a
categorical bar to asylum for passing through a third country, thus
negating any need to make a determination on whether an alien has
firmly resettled. Some commenters stated that the United States must be
able to guarantee permanent protection in a third country in order to
determine that an alien has firmly resettled there. Commenters also
expressed concern that the rule conflicts with the individualized
analysis required by the definition of ``firm resettlement'' in the
regulations. See 8 CFR 208.15, 1208.15.
Response: This rule does not overwrite the firm resettlement bar.
The rule addresses a different set of aliens: It applies to those
aliens who could have sought protection, but who did not do so, in a
third country through which they transited en route to seek asylum at
the southern land border of the United States. The firm resettlement
bar, in contrast, applies to aliens who have received an offer of
permanent status or resettlement in a third country before arriving in
the United States. See INA 208(a)(2)(A)(vi), 8 U.S.C.
1158(a)(2)(A)(vi); 8 CFR 208.15, 1208.15 (2019) (defining ``firm
resettlement'' to include circumstances in which an alien, prior to
arriving in the United States, ``entered into another country with, or
while in that country received, an offer of permanent resident status,
citizenship, or some other type of permanent resettlement'').\19\ The
[[Page 82268]]
different focus of these bars consequently means that not all aliens
covered by one bar are necessarily covered by the other, contrary to
the contention that this rule overrides the statutory firm resettlement
bar. For example, the firm resettlement bar retains effect for any
alien not covered by the third country transit bar, such as aliens who
have sought protection in any third country in transit to the United
States but who have been denied such protection, and all persons
subject to specific forms of human trafficking. An alien could transit
numerous countries en route to the United States, be denied protection
in one country, and obtain firm resettlement in another, then only
later attempt to obtain relief in the United States. In such cases, it
would be firm resettlement, not third country transit, which would bar
eligibility for asylum.
---------------------------------------------------------------------------
\19\ The Departments published an NPRM that, inter alia,
proposed amending the definition of firm resettlement, Procedures
for Asylum and Withholding of Removal; Credible Fear and Reasonable
Fear Review, 85 FR 36264 (June 15, 2020), which has recently been
finalized, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, signed on December 2,
2020. The new definition refers to receipt or eligibility for
permanent legal immigration status or non-permanent but indefinitely
renewable legal immigration status, rather than an offer of
permanent resident status. Id. It also refers to aliens who have
spent at least a year in a third country, regardless of whether such
status was available. Id. That amendment, however, does not alter
the point expressed in this final rule that the firm resettlement
bar addresses a different set of aliens than those subject to this
rule. To the contrary, that amendment--which addresses situations
involving renunciation of citizenship and the Migrant Protection
Protocols, neither of which are involved in the application of this
rule--further crystalizes the distinctiveness of this rule from the
firm resettlement bar.
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Similarly, this rule limits forum-shopping by certain aliens
outside the scope of the firm resettlement bar. For example, travelers
spending less than a year in a third country en route to the United
States without receipt or eligibility for permanent legal immigration
status or non-permanent but indefinitely renewable legal immigration
status \20\ from that third country or another would not fall under the
statutory firm resettlement bar, but they would be ineligible for
asylum under this rule--unless they had applied for, and been denied
asylum eligibility, in any of the third countries through which they
transited to reach the U.S. border. This rule thus bars individuals who
have not been firmly resettled. Despite the somewhat different classes
of aliens encompassed within each bar--one statutory and one a
regulatory exercise of statutorily granted authority--both bars are
consistent in their purpose. As explained in the IFR, both bars do
important work to prevent forum-shopping, helping to ensure that the
U.S. asylum process and immigration court system are available to those
aliens who are in greatest need of assistance, not aliens who are
merely ``seeking to choose among a number of safe countries.'' 84 FR at
33834.
---------------------------------------------------------------------------
\20\ See note 20, supra.
---------------------------------------------------------------------------
Comment: Commenters stated that the IFR is overbroad because, even
where an alien has received an offer to remain in a third country, he
or she may not be found to have firmly resettled if the alien can
demonstrate that his or her entry into the transit country was a
necessary consequence of flight from persecution, that he or she
remained only long enough to arrange onward travel and did not
establish significant ties, or that his or her conditions of residence
were so restricted that he or she was not in fact resettled.
Response: As explained above, the rule is distinct from the firm
resettlement bar. The rule is not designed to address aliens who have
firmly resettled or developed significant ties elsewhere. Instead, it
is designed to identify applicants who are most in need because they
have no other country of refuge, and to curtail the ability of aliens
to use the asylum process as an end-run around the immigration system.
It is reasonable to expect that an alien who is fleeing persecution
will seek protection in the first country where it is available, as
opposed to waiting until arrival in the United States.\21\
---------------------------------------------------------------------------
\21\ The Ninth Circuit cast doubt on the reasonableness of this
expectation in light of potentially unsafe conditions in Mexico. See
E. Bay Sanctuary Covenant, 964 F.3d at 859 (Miller, J., concurring
in part) (``The key factual premise of [the Departments'] reasoning
is that asylum in Mexico (or Guatemala) is indeed an `available'
opportunity, so that legitimate asylum seekers can reasonably be
expected to apply for protection there. But that premise is
contradicted by the agencies' own record.''). As explained more
fully below, the Departments have considered the Ninth Circuit's
opinion, have consulted additional sources of evidence, and have
concluded again that Mexico and other countries are indeed capable
of safely providing refuge for asylum seekers, thus substantiating
the ``key factual premise'' for one of the Departments' rationales
in promulgating the rule.
---------------------------------------------------------------------------
c. Whether or Not at a Port of Entry
Comment: Numerous comments expressed the view that the IFR
conflicts with section 208(a)(1) of the Act, 8 U.S.C. 1158(a)(1), which
states that ``[a]ny alien who . . . arrives in the United States
(whether or not at a designated port of arrival . . .) . . . may apply
for asylum.'' Some commenters stated that, because any non-Mexican
asylum seekers coming to the southern land border necessarily transited
through another country, the rule undermines the ``whether or not at a
designated port of arrival'' language of the INA. Commenters also
expressed concern that the IFR contravenes the INA's language that
``anyone physically present in the United States'' may apply for
asylum.
Response: The rule is consistent with section 208(a)(1) of the Act,
8 U.S.C 1158(a)(1), which provides that aliens present or arriving in
the United States, regardless of whether they are at a port of entry,
may apply for asylum ``in accordance with this section.'' Section
208(b) of the Act, 8 U.S.C. 1158(b), then establishes conditions for
granting asylum and states that the Attorney General (and, now, the
Secretary) ``may grant asylum to an alien who has applied for asylum in
accordance with the requirements and procedures established by the
Secretary of Homeland Security or the Attorney General under this
section.''
This rule does not bar any alien who expresses a fear of
persecution from applying for asylum, and, in accordance with section
208(a)(1) of the Act, 8 U.S.C. 1158(a)(1), aliens impacted by the IFR
may apply for asylum whether or not they are at a port of entry. The
rule provides, however, that those who apply for asylum after
travelling through a third country without first applying for, and
being denied, protection in that third country (except for trafficking
victims and aliens whose travel is only through countries that are not
party to the relevant treaties) are ineligible to receive asylum. This
rule's asylum eligibility bar is based on an alien declining to apply
for asylum in one of the first countries in which such relief may have
been available, prior to reaching the southern land border--thereby
undermining the purported urgency of the alien's need for relief.
For clarity, the Departments note that this rule applies to all
aliens who enter, attempt to enter, or arrive in the United States
across the southern land border on or after July 16, 2019. These three
terms, as explained more fully below, require physical presence in the
United States, and, as a result, any aliens who did not physically
enter the United States before July 16, 2019, are subject to this rule.
This includes, for example, aliens who may have approached the U.S.
border but were subject to metering by DHS at a land border port of
entry and did not physically cross the border into the United States
before July 16, 2019.\22\
---------------------------------------------------------------------------
\22\ The Departments note that this result is different from the
district court's reasoning in granting a preliminary injunction in
Al Otro Lado, Inc. v. McAleenan, 423 F. Supp. 3d 848, 875-76 (S.D.
Cal. 2019), which included aliens who approached a U.S. port of
entry but were not immediately permitted to cross the border as
within the class of aliens who had ``attempted to enter or arrived
in'' the United States. See Al Otro Lado v. McAleenan, 394 F. Supp.
3d 1168, 1199-1205 (S.D. Cal. 2019). The district court's
interpretation is contrary to the Departments' intent, as explained
below. The Departments also note that, even if aliens subject to
metering prior to July 16, 2019, were exempt from this rule, they
would nevertheless become subject to the rule upon any subsequent
entry into the United States. See Al Otro Lado v. Wolf, 952 F.3d
999, 1017 (9th Cir. 2020) (Bress, J., dissenting) (``Even so, the
Third Country Transit Rule plainly applies to the plaintiffs in this
case, so that enjoining it as to them was legal error. The Third
Country Transit Rule applies to `any alien who enters, attempts to
enter, or arrives in the United States across the southern land
border on or after July 16, 2019.' 8 CFR 208.13(c)(4). When
plaintiffs reach this country, they will be entering or arriving in
the United States after that date; the Rule thus plainly covers
them.'').
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[[Page 82269]]
As an initial matter, the terms ``entry'' and ``arrive'' require
physical presence in the United States. For example, the term
``entry,'' which has a longstanding definition in immigration law,
generally requires physical presence in the United States free from
official restraint, after inspection and admission at a port of entry
or intentional evasion at or outside of a port of entry. See Matter of
Patel, 20 I&N Dec. 368, 370 (BIA 1991) (citing, inter alia, Matter of
Pierre, 14 I&N Dec. 467, 468 (BIA 1973)). Similarly, although the U.S.
Code does not define the term ``arrival'' (or ``arrive''), the term is
consistently accompanied by the phrase ``in the United States.'' See,
e.g., INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Specifically, section
208(a) of the Act, 8 U.S.C. 1158(a), states that an alien who ``arrives
in'' the United States may seek asylum. The present tense phrase
``arrives in'' thus speaks to actual, ongoing arrival in the United
States, not some potential arrival in the future. Similarly, the term
``arriving alien'' is defined by regulation as ``an applicant for
admission coming or attempting to come into the United States at a
port-of-entry, or an alien seeking transit through the United States at
a port-of-entry, or an alien interdicted in international or United
States waters and brought into the United States by any means''--all of
which require the alien to be physically present in the port of entry.
See 8 CFR 1.2, 1001.1(q). An alien cannot be an ``applicant for
admission'' unless he is ``present in the United States'' or ``arrives
in the United States,'' INA 235(a)(1), 8 U.S.C. 1225(a)(1), and he
cannot be ``at a port-of-entry'' unless he is in the United States,
see, e.g., United States v. Aldana, 878 F.3d 877, 882 (9th Cir. 2017)
(explaining that ports of entry are physical facilities in U.S.
territory); see also 8 CFR 235.1(a), 1235.1(a) (application to lawfully
enter ``shall be made . . . at a U.S. port-of-entry when the port is
open for inspection''). Consistent with this reasoning, an immigration
officer's duty to refer an alien ``who is arriving in the United
States'' for a credible-fear interview does not attach until the
``officer determines that an alien . . . is inadmissible'' on certain
grounds, INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii); the officer
cannot determine that an alien is inadmissible on certain grounds until
he inspects the alien, see INA 235(a)(3), 8 U.S.C. 1225(a)(3); and the
officer's duty to inspect the alien does not attach until the alien
``arrives in'' the United States, INA 235(a)(1), 8 U.S.C. 1225(a)(1).
For these reasons, this rule's references to the terms ``arrival'' and
``arrive''--like the references to ``entry''--require physical presence
in the United States.\23\
---------------------------------------------------------------------------
\23\ For example, in order to be inspected and processed, an
application for admission must be physically present in the United
States. See INA 235(a)(1), 8 U.S.C. 1225(a)(1) (applying to an alien
who arrives ``in'' the United States). Additionally, in order to be
processed for expedited removal, an alien must also first be present
in the United States. See INA 235(b)(1)(A)(i), 8 U.S.C.
1225(b)(1)(A)(i) (requiring removal ``from the United States'' of
``an alien . . . who is arriving in the United States'').
---------------------------------------------------------------------------
Next, the Departments intended, and continue to intend, for the
phrase ``attempt to enter'' to encompass only those who are physically
present in the United States. Aliens whom U.S. Customs and Border
Protection (``CBP'') encounter at the physical border line of the
United States and Mexico, who have not crossed the border line at the
time of that encounter, have therefore not attempted to enter. This
interpretation, while perhaps counterintuitive in light of a colloquial
understanding of the word ``attempt,'' is nonetheless consistent with
case law in the immigration context that has equated an ``attempt'' to
enter the United States with the actual crossing of the border. See,
e.g., United States v. Corrales-Beltran, 192 F.3d 1311, 1319-20 (9th
Cir. 1999) (``The attempt is in itself a substantive offense. It is the
act of crossing the boundary line into the United States. It is not an
attempt to commit an independently described offense, in the sense in
which the word `attempt' is ordinarily used in criminal law. It is the
actual re-entry into the United States.'') (quoting Mills v. United
States, 273 F. 625, 627 (9th Cir. 1921)). This interpretation of the
word ``attempt'' in the context of attempting ``to enter'' is also
consistent with the above-described meaning of the term ``entry.''
Because ``entry'' requires more than mere physical presence, see Matter
of Patel, 20 I&N Dec. at 370, an alien can physically cross the border
of the United States and still be merely ``attempting'' to enter the
United States because, for example, he or she has not yet obtained
freedom from official restraint.
For these reasons, the Departments reiterate that ``entry,''
``attempted entry,'' and ``arrival'' require the alien to be physically
present in the United States, whether at a land border port of entry or
elsewhere within the United States, and the Departments do not intend
for this rule to apply extraterritorially to aliens who are not in the
United States in any capacity. Therefore, the rule applies to aliens
who, for example, were subject to metering before July 16, 2019, and,
as a result, had not entered, attempted to enter, or arrived in the
United States by that time.
This rule establishes an additional condition, pursuant to the
Attorney General's and the Secretary's authority at section
208(b)(2)(C) of the Act, 8 U.S.C. 1158(b)(2)(C), to establish
additional limitations and conditions on asylum eligibility \24\ for
asylum applicants at the southern land border who travel through a
third country. Those particular applicants must apply for, and be
denied, protection in a third country of transit in order to maintain
eligibility for asylum in the United States at the southern land
border. Thus, the rule is consistent with the language of the statute.
Additionally, as noted in the IFR, the new bar established by the
regulation does not modify an alien's eligibility for withholding or
deferral of removal proceedings, neither of which is a discretionary
form of relief or protection. 84 FR at 33830.
---------------------------------------------------------------------------
\24\ The authority to set additional limitations and conditions
at section 208(b)(2)(C) of the Act, 8 U.S.C. 1158(b)(2)(C), is
discussed further in preceding Section III.C.1.
---------------------------------------------------------------------------
Moreover, ``even if'' an alien satisfies all governing
requirements, ``an actual grant of asylum is discretionary.''
Thuraissigiam, 140 S. Ct. at 1965 n.4; see INA 208(b)(1)(A), 8 U.S.C.
1158(b)(1)(A); INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999)
(explaining that the ``decision whether asylum should be granted to an
eligible alien is committed to the Attorney General's discretion'').
Comment: One commenter expressed concern that the IFR contradicts
its own statutory authority because ``arriving at the Southern Border
does not constitute an exception [to asylum eligibility] on the statute
and, as such, the rule contradicts its own authority.''
Response: The Departments do not believe that the rule contradicts
its own statutory authority. As noted in the IFR and explained above in
Section III.C.1 of this preamble, the Act authorizes the Attorney
General and the Secretary to establish further limitations and
conditions on asylum eligibility beyond those expressly stated in the
Act itself. INA 208(b)(2)(C), 8 U.S.C. 1158 (b)(2)(C); 84 FR at 33832.
Further, the
[[Page 82270]]
comment mischaracterizes the substance of this rule, which does not bar
asylum eligibility on the basis of an alien having arrived at the
southern land border. Rather, this rule's asylum eligibility bar is
based on an alien declining to apply for asylum in one of the first
countries in which such relief may have been available, prior to
reaching the southern land border--thereby undermining the purported
urgency of the alien's need for relief.
d. Alleged Categorical Ban
Comment: Numerous commenters expressed concern that the IFR would
impose a ``sweeping and categorical'' ban on asylum. Commenters also
expressed concern that the IFR conflicts with the specific
circumstances in the INA under which applicants can be denied asylum
because the rule presents a categorical bar to eligibility that does
not leave room for individualized determinations.
Response: The Departments would not characterize this rule as a
categorical ban on asylum eligibility because the rule does not deny
eligibility to every asylum applicant who presents himself or herself
at the southern land border. Rather, the rule applies to a subset of
aliens--those who pass through a third country or third countries en
route to the United States and who do not seek protection in those
countries before seeking protection in the United States. Those
individuals who apply for such protection and are denied will not be
barred from eligibility for asylum as a result of this rule once they
reach the United States. Similarly, aliens who are victims of a severe
form of trafficking in persons will not be barred from asylum
eligibility resulting from their travel through a third country.
Therefore, although the rule bars asylum eligibility for a certain
subset of aliens reaching the southern land border, the rule does not
ban asylum at the border.
Further, as explained above in Section III.C.1, it is well within
the Departments' authority to establish new ``limitations and
conditions'' on asylum eligibility that are ``consistent with'' the
asylum statute. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). For example,
in 2000, Attorney General Janet Reno, relying on her authority under
section 208(b)(2)(C) of the Act, 8 U.S.C. 1158(b)(2)(C), limited asylum
eligibility based on a well-founded fear of future persecution when
there is ``a fundamental change in circumstances'' or the ability of an
alien to reasonably relocate within the alien's country of nationality
or last habitual residence, even where that alien had established he or
she had suffered past persecution. See 65 FR at 76127; 8 CFR
208.13(b)(1)(i)-(ii), 1208.13(b)(1)(i)-(ii).
e. Credible Fear
Comment: One commenter expressed concern that the IFR predetermines
the outcome of the credible-fear determination process for all affected
asylum seekers subject to expedited removal. The commenter stated that
the rule would require the asylum officer to apply the higher
``reasonable fear'' standard and that the Act requires that all
noncitizens subject to expedited removal who express a fear of return
be processed for a credible-fear screening except in circumstances
defined in the Act.
Response: The Departments do not believe that the rule is
inconsistent with expedited removal. As previously stated by the
Departments, this rule does not change the standard as to whether an
alien has demonstrated a credible fear of persecution for purposes of
asylum (a significant possibility of eligibility for asylum), although
the rule expands the scope of the inquiry in the process. 84 FR at
33835-37. Credible-fear screenings for aliens subject to expedited
removal are a determination of 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 officer, that the alien could establish eligibility
for asylum under section 1158 of this title.'' INA 235(b)(1)(B)(v), 8
U.S.C. 1225(b)(1)(B)(v). As discussed above, section 208(b)(2)(C) of
the Act, 8 U.S.C. 1158(b)(2)(C), authorizes the Departments to
establish additional limitations and conditions on asylum eligibility
by regulation, and the Departments promulgated the IFR pursuant to this
authority. See 84 FR at 33833-34. The Act does not limit the credible-
fear screening process to consideration of only those bars explicitly
stated in the Act to the exclusion of any additional bars that the
Departments established under section 208(b)(2)(C) of the Act, 8 U.S.C.
1158(b)(2)(C). In fact, it makes little sense to require an asylum
officer to determine that an alien otherwise has a significant
possibility of eligibility for asylum if the alien is in fact barred
from eligibility for asylum in the first place.
3. U.S. Obligations Under International Law
Comment: Numerous commenters raised concerns that the IFR violates
the United States' obligations under international law. These comments
cited the 1948 Universal Declaration of Human Rights (``UDHR''), the
Refugee Convention, the Refugee Protocol, the International Covenant on
Civil and Political Rights (``ICCPR''), the CAT, the Convention on the
Rights of the Child (``CRC''), and customary international law.
Commenters were concerned that the IFR violates the United States'
non-refoulement obligations under international law, which the
commenters generally explained as prohibiting the return of asylum
seekers to a country where their lives or freedom would be threatened
on account of a protected ground. Specifically, commenters were
concerned that the IFR would act as a categorical bar to asylum and,
therefore, that asylum seekers would only be able to apply for
withholding of removal or protection under the CAT regulations--claims
that require higher standards of proof. The commenters feared that, as
a result, this more searching standard would lead to a higher
likelihood of refoulement of persons with otherwise legitimate asylum
claims.
Similarly, other commenters stated that requiring asylum seekers to
first apply for asylum in Mexico would effectively result in
refoulement because Mexico does not have adequate asylum procedures.
The commenters asserted that Mexico lacks adequate procedures,
claiming, e.g., that the ``asylum system in Mexico is overwhelmed, and
applicants face long delays and unfair procedures. In addition,
conditions may not be safe for many asylum seekers who are at risk of
experiencing violence while living in Mexico and awaiting adjudication
of their claims.'' Likewise, the commenters' assertions related to
purported dangerous conditions in Mexico result in the commenters'
views that returning asylum seekers to Mexico would be considered a
violation of the United States' non-refoulement obligations.
Several commenters pointed to statements or guidance issued by the
United Nations High Commissioner for Refugees (``UNHCR''). For example,
several organizations cited generally UNHCR's statement of belief that
``the rule excessively curtails the right to apply for asylum,
jeopardizes the right to protection from refoulement, significantly
raises the burden of proof on asylum seekers beyond the international
legal standard, sharply curtails basic rights and freedoms of those who
manage to meet it, and is not in line with international obligations.''
UNHCR, UNHCR Deeply Concerned About New U.S. Asylum Restrictions,
https://www.unhcr.org/en-us/news/press/2019/7/5d2cdf114/unhcr-deeply-
[[Page 82271]]
concerned-new-asylum-restrictions.html (last visited Dec. 10, 2020).
Others pointed to UNHCR guidance interpreting the Refugee
Convention and the Refugee Protocol as providing that asylum seekers
are not required to apply for protection in the first country where
protection is available. For example, one commenter stated that
``neither the 1951 Convention nor the 1967 Protocol require[s] refugees
to apply for protection in the first country available, nor do they
require refugees to be returned to a country that was crossed in
transit.'' The commenter further averred that ``UNHCR has stated that
asylum should not be refused only on the basis that it could have been
sought in another country, and it has made clear that an asylum seeker
should not be required to seek protection in a country in which he or
she has not established any relevant links.''
Another organization was concerned that the IFR prevents asylum
seekers from receiving a fair, full, and adequate trial or legal
process, as required by the UDHR, the ICCPR, and the CRC.
Response: As explained in the IFR, this rule is consistent with
U.S. obligations under the Refugee Protocol, which incorporates
Articles 2 through 34 of the Refugee Convention, as well as U.S.
obligations under Article 3 of the CAT. These treaties are not directly
enforceable in U.S. law, but some of their obligations have been
implemented by domestic legislation and implementing regulations. See
INS v. Stevic, 467 U.S. 407, 428 & n.22 (1984); Al-Fara v. Gonzales,
404 F.3d 733, 743 (3d Cir. 2005) (``The 1967 Protocol is not self-
executing, nor does it confer any rights beyond those granted by
implementing domestic legislation.''); Foreign Affairs Reform and
Restructuring Act of 1998 (``FARRA''), Public Law 105-277, sec.
2242(b), Oct. 21, 1998, 112 Stat. 2681, 2631-822 (8 U.S.C. 1231 note);
8 CFR 208.16(b)-(c), 208.17, and 208.18; 1208.16(b)-(c), 1208.17 and
1208.18.
The United States has implemented the non-refoulement provisions of
Article 33.1 of the Refugee Convention through the withholding of
removal provisions at section 241(b)(3) of the Act, 8 U.S.C.
1231(b)(3), rather than through the asylum provisions at section 208 of
the Act, 8 U.S.C. 1158. See INS v. Cardoza-Fonseca, 480 U.S. 421, 429,
440-41 (1987); Matter of C-T-L, 25 I&N Dec. 341, 342-43 (BIA 2010). The
Supreme Court has explained that asylum ``does not correspond to
Article 33 of the Convention, but instead corresponds to Article 34,''
which provides that contracting States ``shall as far as possible
facilitate the assimilation and naturalization of refugees.'' Cardoza-
Fonseca, 480 U.S. at 441 (quotation marks omitted). Article 34 ``is
precatory; it does not require the implementing authority actually to
grant asylum to all those who are eligible.'' Id. Because the rule does
not affect statutory withholding of removal or protection under the CAT
regulations, the rule is consistent with U.S. non-refoulement
obligations under the 1967 Protocol (incorporating, inter alia, Article
33 of the Refugee Convention) and the CAT. See R-S-C, 869 F.3d at 1188
n.11 (explaining that ``the Refugee Convention's non-refoulement
principle--which prohibits the deportation of aliens to countries where
the alien will experience persecution--is given full effect by the
Attorney General's withholding-only rule''); 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).
The commenters are correct that neither the Refugee Convention nor
the Refugee Protocol requires refugees to apply for protection in the
first country available, but that observation is irrelevant to the
legality of the rule. As explained above, the United States implements
its non-refoulement obligations under the Refugee Protocol and the CAT
through statutory withholding of removal and regulatory CAT protection.
Because the rule bars asylum eligibility, and does not affect
eligibility for statutory withholding of removal or withholding or
deferral of removal under the CAT regulations, it does not conflict
with U.S. obligations under the Refugee Protocol or the CAT.
Commenters are further incorrect that Mexico does not provide
adequate asylum procedures or a sufficiently safe environment for
asylum seekers.
First, regarding conditions in Mexico for asylum seekers who wait
or pass through there, the anecdotal stories detailing violence in the
country are generalized and may not necessarily indicate the presence
of the kind of persecution that asylum was designed to address.
Relatedly, the U.S. Ambassador to Mexico has explained that reports on
localized violence in particular areas of Mexico do not indicate
security conditions in the country as a whole. See Memorandum for the
Attorney General and the Acting Secretary of Homeland Security, from
Christopher Landau, United States Ambassador to Mexico, Re: Mexico
Refugee System 4 (Aug. 31, 2020) (``Landau Memorandum''). Mexico spans
nearly 7,600,000 square miles, and the Ambassador explained that
discussions about conditions in Mexico oftentimes conflate the perils
that refugees might face traversing across dangerous parts of Mexico en
route to the United States with the ability to seek protection in a
safe place in Mexico.\25\ Id.
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\25\ The Departments also note various media outlets and writers
have opined on living in or retiring to Mexico, which further
suggests that the quality of life, including safe living conditions,
continues to improve. See, e.g., Kathleen Peddicord, The Best Places
to Retire in Mexico, U.S. News & World Report (Apr. 30, 2019),
https://money.usnews.com/money/retirement/baby-boomers/articles/the-best-places-to-retire-in-mexico; see also Liz Flynn, 20 Best Places
to Live in Mexico, Money Inc., https://moneyinc.com/best-places-to-live-in-mexico/. In 2019, U.S. citizens traveled to Mexico almost 40
million times. See National Travel and Tourism Office, International
Trade Administration, U.S. Dep't of Commerce, U.S. Citizen Travel to
International Regions (2019). The U.S. Embassy in Mexico City
estimates there are more than 1.5 million U.S. citizens living in
Mexico. See Wendy Fry, Americans Make Up Mexico's Largest
Demographic of Immigrants, San Diego Union Tribune (June 17, 2019).
The Departments suggest that it strains credulity that so many
Americans would move to Mexico if it were as unsafe as commenters
alleged.
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Additionally, UNHCR has documented a notable increase in asylum and
refugee claims filed in Mexico--even during the ongoing COVID-19
pandemic--which strongly suggests that Mexico is an appropriate option
for seeking refuge for those genuinely fleeing persecution. See, e.g.,
UNHCR, Despite Pandemic Restrictions, People Fleeing Violence and
Persecution Continue to Seek Asylum in Mexico, https://www.unhcr.org/en-us/news/briefing/2020/4/5ea7dc144/despite-pandemic-restrictions-people-fleeing-violence-persecution-continue.html (last visited Dec.
10, 2020) (``While a number of countries throughout Latin America and
the rest of the world have closed their borders and restricted movement
to contain the spread of coronavirus, Mexico has continued to register
new asylum claims from people fleeing brutal violence and persecution,
helping them find safety.''). Asylum and refugee claims filed in Mexico
increased 33 percent in the first 3 months of 2020 compared to the same
period in 2019, averaging almost 6,000 per month. Id.
These numbers align with historical trends of increasing asylum
claims in Mexico annually. Asylum claims filed in Mexico rose by more
than 103 percent in 2018 over the previous year. UNHCR, Fact Sheet:
Mexico 1 (Apr. 2019), https://reporting.unhcr.org/sites/default/files/UNHCR%20Factsheet%20Mexico%20-%20April%202019.pdf (last visited Dec.
11, 2020). In 2019 specifically, Mexico reports having received 70,609
refugee applications, which places Mexico eighth in the world for
receipt of refugee
[[Page 82272]]
applications. See Landau Memorandum at 3. Overall, ``[a]sylum requests
have doubled in Mexico each year since 2015.'' Congressional Research
Serv., Mexico's Immigration Control Efforts 2 (Feb. 19, 2020), https://fas.org/sgp/crs/row/IF10215.pdf (last visited Dec. 11, 2020). Moreover,
some private organizations acknowledge that asylum claims in Mexico
have recently ``skyrocket[ed],'' that ``Mexico has adopted a broader
refugee definition than the U.S. and grants a higher percentage of
asylum applications,'' and that ``Mexico may offer better options for
certain refugees who cannot find international protection in the
U.S.,'' including for those ``who are deciding where to seek asylum
[i.e., between Mexico and the United States].'' Asylum Access, Mexican
Asylum System for U.S. Immigration Lawyers FAQ (Nov. 2019), https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.pdf (last visited Dec. 11, 2020).
Over the past decade, Mexico has substantially reformed its
immigration and refugee laws, and in 2020, it more than doubled the
budget for the Comisi[oacute]n Mexicana de Ayuda a Refugiados
(``COMAR''), the specialized federal agency that handles refugee and
asylum issues. See Landau Memorandum at 2-3. The Mexican Constitution
was amended in 2016 to include the specific right to asylum, see Mex.
Const. art. 11, paragraph 2 (providing in Spanish that every person has
the right to seek and receive asylum and that recognition of refugee
status and the granting of political asylum will be carried out in
accordance with international treaties). Further, the grounds for
seeking and obtaining refugee status under Mexican law are broader than
the grounds under United States law. Individuals in Mexico may seek
refugee status as a result of persecution in their home countries on
the basis of race, religion, nationality, gender, membership in a
social group, or political opinion. Compare 2011 Law for Refugees,
Complementary Protection, and Political Asylum (``LRCPPA''), art.
13(I), with INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). However,
individuals in Mexico may also seek refugee status based on generalized
violence and violation of human rights. Id. art. 13(II). Prospective
refugees may apply at one of seven COMAR offices in the country within
30 days of entry into Mexico, with that time period subject to
extension for good cause. See Landau Memorandum at 2. Prospective
refugees may choose to apply for refugee status in any state, and, as a
result, two-thirds of refugee applications are filed in Chiapas, a
state that routinely ranks amongst the safest Mexican States. Id. at 4.
Prospective refugees receive a work permit so that they are legally
eligible to work and access public health services while their cases
are pending, and Mexican law requires COMAR to process applications
within 90 days. Id. at 2.
Accordingly, the available data and other evidence simply do not
support the conclusion that Mexico cannot be a safe and appropriate
destination for individuals to seek asylum when they are fleeing from
persecution.
Finally, just as violence may occur in parts of the United States
but individuals fleeing persecution may still consider the country
relatively ``safe'' when compared to their countries of origin,
localized episodes of violence in Mexico may not necessarily mean the
country, as a whole, is unsafe for individuals fleeing persecution. In
other words, the presence of local or regional crime exists in all
countries, even those generally considered ``safe,'' but the presence
of local or regional crime does not necessarily render those countries
so dangerous that individuals fleeing persecution could not take refuge
anywhere in the country.\26\
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\26\ Per the United Nations Office on Drugs and Crime Chart on
Victims of Intentional Homicide, the murder rate in Mexico of 29.1/
100,000 in 2018 was lower than that in American cities such as St.
Louis, Baltimore, Detroit, New Orleans, and Baton Rouge. See Fed.
Bureau of Investigation, 2018: Crime in the United States (2018),
https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/tables/table-8/table-8.xls/view. More recently, the murder rate in
Baltimore, America's deadliest large city, was twice that of Mexico.
Sean Kennedy, `The Wire' is Finished, but Baltimore Still Bleeds,
The Wall St. J., https://www.wsj.com/articles/the-wire-is-finished-but-baltimore-still-bleeds-11581119104 (last visited Dec. 10, 2020);
see also Landau Memorandum at 4 (``Security conditions vary widely
among (and within) the 32 Mexican States. Many reports of violence
that reach the United States are often based on localized violence
in particular areas of Mexico, and do not reflect conditions across
the country as a whole--that would be like seizing upon crime
statistics from particular metropolitan areas in the United States,
such as the South Side of Chicago or Baltimore, and extrapolating
them to the entire United States.'').
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Further, the United States is not required to grant asylum to all
applicants, and, as discussed above, asylum is ultimately
discretionary. Thus, regardless of the general safety in Mexico, asylum
claims remain subject to discretion. Moreover, over the years, the vast
majority of asylum claims have been unsuccessful and unmeritorious
under U.S. asylum law. See EOIR, Adjudication Statistics: Asylum
Decision Rates (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1248491/download; see also Thuraissigiam, 140 S. Ct. at 1966-67
(quoting various EOIR statistics demonstrating that ``[t]he majority
[of credible fear claims] have proved to be meritless'' and explaining
that fraudulent asylum claims are difficult to detect).
A person seeking asylum for a reason supported by law (such as a
fear of persecution) does not require a specific destination; he or she
requires only a destination that provides refuge. Policy considerations
accordingly support promulgation of a bar to asylum to reduce the
number of those aliens who wish to use the asylum system to live (and
potentially work) in the United States in particular, rather than as a
way to avoid persecution in general. The Departments have concluded
that the large number of ultimately denied asylum claims, as referenced
above, is evidence that many aliens are seeking to use the asylum
system for reasons other than seeking refuge from persecution on
account of a protected ground. This final rule thus bars those aliens
who--by neglecting to seek protection in countries in which they could
have done so had they been legitimately fleeing persecution--are likely
to be the sorts of aliens attempting to improperly use the system,
thereby reducing the incidence of abuse of the asylum system.
Comments concerning statements or guidance from UNHCR are
misplaced. First, UNHCR's interpretations of or recommendations
regarding the Refugee Convention and Refugee Protocol are ``not binding
on the Attorney General, the [Board of Immigration Appeals (`BIA')], or
United States courts.'' Aguirre-Aguirre, 526 U.S. at 427. ``Indeed,
[UNHCR's Handbook on Procedures and Criteria for Determining Refugee
Status] itself disclaims such force, explaining that `the determination
of refugee status under the 1951 Convention and the 1967 Protocol . . .
is incumbent upon the Contracting State in whose territory the refugee
finds himself.' '' Id. at 427-28, quoting Cardoza-Fonseca, 480 U.S. 14
439 n. 22.
To the extent such guidance ``may be a useful interpretative aid,''
id. at 427, it does not govern how a Contracting State may exercise its
prerogative to allow for asylum in its sole discretion.
Second, UNHCR has recognized that refugees may be required to seek
protection in other countries. In guidance issued in April 2018, UNHCR
affirmed that ``refugees do not have an unfettered right to choose
their `asylum country,' '' and that, even if their ``intentions . . .
ought to be taken into account,'' they ``may be returned or transferred
to a state where they had found, could have found or, pursuant to a
formal agreement, can find
[[Page 82273]]
international protection.'' UNHCR, Legal Considerations Regarding
Access to Protection and a Connection Between the Refugee and the Third
Country in the Context of Return or Transfer to Safe Third Countries,
at 1 available at https://www.refworld.org/pdfid/5acb33ad4.pdf (last
visited Dec. 10, 2020). UNHCR explained that ``[t]he 1951 Convention
relating to the Status of Refugees and its 1967 Protocol do not
prohibit such return or transfer.'' Id. Additionally, UNHCR has
acknowledged the legitimacy of the ``safe third country concept''
through which nations may deny protection ``in cases where a person
could have or can find protection in a third state either in relation
to a specific individual case or pursuant to a formal bi- or
multilateral agreement between states on the transfer of asylum-
seekers.'' Id.
Comments arguing that the rule violates ICCPR, the UDHR, and the
CRC are also incorrect. First, the ICCPR does not impose a non-
refoulement obligation on state parties. The UDHR is a non-binding
human rights instrument, not an international agreement, and thus it
does not impose legal obligations on the United States. See Sosa v.
Alvarez-Machain, 542 U.S. 692, 728, 734-35 (2004) (``[T]he [UDHR] does
not of its own force impose obligations as a matter of international
law.''). Similarly, the United States has neither ratified the CRC nor
implemented its provisions in domestic law, and accordingly it does not
give rise to legal obligations for the United States. See Martinez-
Lopez v. Gonzales, 454 F.3d 500, 502 (5th Cir. 2006) (``The United
States has not ratified the CRC, and, accordingly, the treaty cannot
give rise to an individually enforceable right.''). In addition, this
rule does not implicate the two optional protocols of the CRC to which
the United States is a party: (1) The Optional Protocol to the
Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict and (2) the Optional Protocol to the Convention on the
Rights of the Child on the Sale of Children, Child Prostitution and
Child Pornography. See United Nations, Treaty Collection, Convention on
the Rights of the Child, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en (last
visited Dec. 10, 2020); UNHCR, Country Profile for United States of
America, available at http://indicators.ohchr.org/ (last visited Dec.
10, 2020).
To the extent that some commenters make blanket assertions that the
rule violates customary international law or is inconsistent with other
non-binding international instruments, the commenters ignore the fact
that the rule leaves the requirements for an ultimate grant of
statutory withholding of removal or withholding or deferral of removal
pursuant to the CAT regulations unchanged, and that aliens who choose
not to apply for relief within a country that is a party to the
relevant treaties through which they transit en route to the United
States may still be considered for such protection.
Comment: Three commenters cited examples of countries that are
parties to the 1951 Convention, 1967 Protocol, or the CAT, yet
nonetheless persecute individuals, according to allegations by the
commenters. For example, one group stated that some countries that are
parties to one or more of the relevant treaties punish expressions of
atheism by death.
Response: The rule does not require an asylum seeker to apply for
protection in every country he or she crosses; it requires the
individual to apply in at least one of the countries. Consequently,
because the rule applies to aliens crossing the southern land border, 8
CFR 208.13(c)(4) and 1208.13(c)(4), Mexico will necessarily be at least
one of the transit countries. In other words, non-Mexican nationals
crossing the southern land border must pass through Mexico. As
explained in the IFR, Mexico is a party to the Refugee Convention, the
Refugee Protocol, and the CAT, and it has an independent asylum system
that provides protections to asylum applicants. 84 FR at 33839-40.
Further, Mexico has endorsed the 1984 Cartagena Declaration on Refugees
and the non-binding 2018 Global Compact on Refugees. See Landau
Memorandum at 1. Commenters did not generally allege that Mexico
persecutes individuals notwithstanding its treaty obligations--and
certainly did not allege that Mexico punishes atheists by death.
Consequently, commenters' concerns about anecdotes in individual
countries that are neither transit countries themselves nor the sole
country of transit are inapposite to the focus of the rule. Further, as
noted above, aliens who choose not to apply for relief within a country
that is a party to the relevant treaties and through which they transit
en route to the United States may be considered for withholding of
removal or deferral of removal in the United States.
Comment: One group expressed concern that if an individual applies
for and is denied asylum in a third country, the person will likely be
returned to his or her home country and not be allowed to continue on
to the United States. The group further opined that countries may deny
valid asylum claims because they do not wish to absorb more migrants.
Response: The Departments appreciate the commenting group's concern
that individuals with valid asylum claims should receive protection.
The Departments believe the rule will provide such protection. The 1951
Convention and the 1967 Protocol incorporate the principle of non-
refoulement--i.e., that countries cannot return individuals to
countries where they more likely than not would be persecuted on
account of a protected ground (with certain exceptions for individuals
who fall within an exclusion or cessation ground). In other words, a
third country, which, under the rule must be a party to the Refugee
Convention or Refugee Protocol, cannot return an alien to his or her
home country if doing so would violate the third country's non-
refoulement obligations. The third country, however, may return the
alien to his or her home country following a determination that the
alien is not eligible for non-refoulement protection in that country.
Finally, aliens who apply for and are denied protection in these
countries are not barred from asylum eligibility under this rule.
4. Violates the Refugee Act
Comment: At least one commenter stated that the IFR violates the
Refugee Act. The commenter argued that the rule conflicts with the non-
refoulement principles of the Refugee Act because it will ``inevitably
return refugees to the countries where they will be persecuted.''
Response: The rule does not violate the non-refoulement provisions
of the Refugee Act, which were codified at former section 243(h) of the
Act, 8 U.S.C. 1253(h) (currently codified at section 241(b)(3) of the
Act, 8 U.S.C. 1231(b)(3)). Refugee Act, sec. 203(e); see also Stevic,
467 U.S. at 421-22. As stated above, the United States has implemented
its non-refoulement obligations under the Refugee Protocol and the CAT
through the withholding of removal provisions at section 241(b)(3) of
the Act, 8 U.S.C. 1231(b)(3), and the CAT regulations.\27\ See Cardoza-
Fonseca, 480 U.S. at 440-41; FARRA, sec. 2242; 8 CFR 208.16(b)-(c),
208.17,
[[Page 82274]]
208.18, 1208.16(b)-(c), 1208.17 and 1208.18. The rule does not affect
the withholding of removal process or standards. See INA 241(b)(3), 8
U.S.C. 1231(b)(3); 8 CFR 208.16-.18, 1208.16-.18. In general, an alien
who can demonstrate that he or she would more likely than not face
persecution on account of a protected ground or torture would qualify
for withholding or deferral of removal. Asylum under the immigration
laws, on the other hand, is a discretionary form of relief subject to
regulation and limitations by the Attorney General and the Secretary.
See INA 208(b)(2)(C) and (d)(1), 8 U.S.C. 1158(b)(2)(C) and (d)(1);
Thuraissigiam, 140 S. Ct. at 1965 n.4; see also Garcia v. Sessions, 856
F.3d 27, 40 (1st Cir. 2017) (discussing the distinction between asylum
and withholding of removal and explaining that ``withholding 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'').
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\27\ The Departments further note that the U.S. Mission in
Mexico is ``unaware of any pattern or practice of deporting
prospective refugees to their countries of origin while their
applications remain pending.'' Landau Memorandum at 5. To the
contrary, as explained by the U.S. Ambassador to Mexico, ``Mexico
introduced `complementary protection' in 2011 precisely to provide
protection from refoulement for individuals who may face danger in
their home countries but do not satisfy the legal requirements for
refugee status.'' Id.
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5. Violates Trafficking Victims Protection Reauthorization Act of 2008
Comment: Some commenters argued that the IFR violates the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
(``TVPRA''), Public Law 110-457, Dec. 23, 2008, 122 Stat. 5044. These
commenters noted that Congress has provided special protections for
unaccompanied alien children (``UAC'') \28\ that are designed to
humanely treat and protect UAC due to their particular vulnerability to
the risk of trafficking or other exploitations. For example, as most
relevant to the rule, commenters noted that UAC have a statutory right
to present their asylum applications to an asylum officer in a non-
adversarial setting in the first instance. See TVPRA sec. 235(d)(7)(B)
(codified at section 208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C)).
In addition, the TVPRA exempted UAC from the ACA bar to asylum and the
one-year filing deadline for applying for asylum. See TVPRA sec.
235(d)(7)(A) (codified at section 208(a)(2)(E) of the Act, 8 U.S.C.
1158(a)(2)(E)). According to commenters, the IFR violates the
protections provided by the TVPRA because it deems UAC ineligible for
asylum if they transited through a third country and, in effect,
removes the procedural protections implemented by the TVPRA. By barring
asylum eligibility for UAC who transit through third countries without
seeking asylum there, commenters argued, the IFR will effectively
require asylum officers to automatically refer UAC to the immigration
courts to pursue withholding of removal or protection under the CAT
regulations. As a result, the commenters asserted, the IFR in practice
would nullify the non-adversarial process that Congress specifically
designed for UAC under the TVPRA by placing the UAC in adversarial
immigration court proceedings.
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\28\ UAC are children who have no lawful immigration status in
the United States; who have not attained 18 years of age; and who
have no parent or legal guardian in the United States, or no parent
or legal guardian in the United States available to provide care and
physical custody. 6 U.S.C. 279(g)(2).
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Response: This rule does not violate the TVPRA. As the commenters
stated, the TVPRA enacted multiple procedures and protections specific
to UAC that do not apply to other similarly situated asylum applicants.
Congress, however, did not exempt UAC from all bars to asylum
eligibility. As a result, UAC, like all asylum seekers, (1) may not
apply for asylum if they previously applied for asylum and their
application was denied (INA 208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C)), and
(2) are ineligible for asylum if they are subject to any of the
mandatory bars at section 208(b)(2)(A)(i)-(vi) of the Act, 8 U.S.C.
1158(b)(2)(A)(i)-(vi), or if they are subject to any additional bars
implemented pursuant to the Attorney General's and the Secretary's
authority to establish additional limitations on asylum eligibility by
regulation, INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
DHS and DOJ implement this rule pursuant to the authority at
section 208(b)(2)(C) of the Act. It is a valid restriction on asylum
eligibility for all asylum applicants, including UAC. And this rule
does not alter asylum officers' jurisdiction over asylum applications
from UAC. See INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). If UAC who are
apprehended at the southern land border are placed in removal
proceedings under section 240 of the Act and raise asylum claims, the
immigration judges will refer the claims to asylum officers pursuant to
the TVPRA, consistent with the asylum statute and procedures in place
prior to the promulgation of this rule. See INA 208(b)(3)(C), 8 U.S.C
1158(b)(3)(C). Those asylum officers will determine whether the UAC are
barred from eligibility for asylum on the basis of this rule. This rule
does not affect any other procedure or protection implemented by the
TVPRA.
Further, one district court has already indicated in an oral ruling
from the bench that the IFR is likely consistent with the TVPRA. In
CAIR I, discussed previously in Section III.C.2, the plaintiffs
challenged the IFR in part on the grounds that it constituted a
violation of the TVPRA's substantive protections for UAC. Complaint at
43-45, CAIR I, --- F. Supp. 3d ---, 2019 WL 3436501, ECF No. 1. In
denying the plaintiffs' request for a temporary restraining order, the
court explained that it had ``strong doubt as to plaintiffs' claims
relating to the TVPRA,'' in part because ``the Attorney General has
long exercised broad discretion to determine which applicants should be
granted asylum.'' Id. at *3.\29\
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\29\ As with the claim that the IFR is contrary to the INA, the
court in CAIR II did not discuss the claim that the IFR is contrary
to the TVPRA. See CAIR II, --- F. Supp. 3d ---, 2020 WL 3542481, at
*1.
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Finally, the Departments note that, for UAC who are barred from
asylum eligibility under this rule due to travel through a third
country but who may still be eligible for withholding of removal under
section 241 of the Act, 8 U.S.C. 1231, or protection under the CAT
regulations, the Departments are cognizant of the ``special
circumstances'' often presented by UAC. Nevertheless, the INA does not
require special protections for UAC beyond those already contained in
the statute, and the INA does not require the provision of additional,
extra-statutory protections--and certainly not beyond those which
already exist. See, e.g., EOIR, Operating Policies and Procedures
Memorandum 17-03: Guidelines for Immigration Court Cases Involving
Juveniles, Including Unaccompanied Alien Children (Dec. 20, 2017),
https://www.justice.gov/eoir/file/oppm17-03/download. Like all aliens
subject to the rule, UAC have the opportunity to apply for protection
in one or more countries prior to their arrival in the United States.
Further, UAC who are old enough to travel independently across hundreds
or thousands of miles to the United States can logically also be
expected to seek refuge in one of the countries transited if the UAC
are genuinely seeking protection. UAC who are not old enough to travel
independently necessarily must travel with adults, and again, there is
no reason that adults cannot apply for protection in any country
offering refuge if the adults and the UAC are genuinely seeking
protection.\30\ In short, the
[[Page 82275]]
Departments have not overlooked the special circumstances of UAC in
crafting this rule, but those circumstances are insufficiently
compelling to warrant a special exception for UAC from the rule's
application.
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\30\ The Departments recognize that smugglers may be able to
charge higher fees to bring UAC to the United States than to other
countries because of the perceived desirability of residing in the
United States compared to other countries and, thus, that the rule
may also act as a deterrent to child smuggling to the United States.
The potential for reduced smuggling of children into the United
States, however, works in favor of the rule, not against it.
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6. Due Process
Comment: Multiple organizations expressed concerns that the IFR
violates the Fifth Amendment Due Process Clause because it allegedly
establishes a predetermined outcome of the expedited removal process
and presents a categorical bar on asylum for immigrants who enter the
United States through the southern land border after transiting through
a third country, effectively denying asylum seekers the right to be
meaningfully heard on their asylum claims. One commenter further
expressed that asylum seekers should have the right to appeal a
credible-fear denial to an immigration judge. One commenter stated that
it is inappropriate for the Departments to reduce the amount of process
provided to asylum applicants in order to decrease the backlog of cases
pending before EOIR. One commenter stated that it was unclear how the
IFR would lessen the burden on immigration judges to timely and
efficiently review claims in compliance with due process requirements
because the rule required every affected applicant to file additional
evidentiary material.
Response: The rule does not violate the Fifth Amendment Due Process
Clause.\31\ Like the other limitations on asylum set forth in the INA,
the rule does not establish a predetermined outcome for the expedited
removal process, and, as stated above, the rule is consistent with
those limitations in the rest of section 208 of the Act, 8 U.S.C. 1158.
The Departments note that, under the rule, not every immigrant who
enters the United States via the southern land border after transiting
through a third country is ineligible for asylum in the United States,
and the Departments provide a screening process to determine which
asylum applicants are, and are not, subject to the regulatory third-
country-transit bar. The rule applies to bar asylum eligibility for
only those asylum seekers who transited through third countries without
seeking protection in at least one of those countries.
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\31\ Courts have held that aliens do not have a cognizable
substantive due process interest in the receipt of asylum because
asylum is a discretionary form of relief. See, e.g., Yuen Jin v.
Mukasey, 538 F.3d 143, 157 (2d Cir. 2008) (holding that ``an alien
who has already filed one asylum application, been adjudicated
removable and ordered deported, and who has nevertheless remained in
the country illegally for several years, does not have a liberty or
property interest in a discretionary grant of asylum''); Ticoalu v.
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (``Due process rights do
not accrue to discretionary forms of relief, . . . and asylum is a
discretionary form of relief.''); Mudric v. U.S. Att'y Gen., 469
F.3d 94, 99 (3d Cir. 2006) (holding that an eight-year delay in
processing the petitioner's asylum application was not a
constitutional violation because the petitioner ``had no due process
entitlement to the wholly discretionary benefits of which he and his
mother were allegedly deprived''); cf. Munoz v. Ashcroft, 339 F.3d
950, 954 (9th Cir. 2003) (``Since discretionary relief is a
privilege created by Congress, denial of such relief cannot violate
a substantive interest protected by the Due Process clause.'').
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As previously stated by the Departments, one purpose of the rule is
to ameliorate undue strains on the existing immigration system by
deterring meritless or non-urgent asylum claims. See 84 FR at 33839;
see also Thuraissigiam, 140 S. Ct. at 1967. The Departments had
established this rule to more effectively separate out non-meritorious
or non-urgent claims so that meritorious claims will be adjudicated
more quickly and, in the process, the backlog would be reduced.
In addition, the rule provides several procedural protections to
ensure that meritorious claims receive a full and fair hearing before
an immigration judge and that the bar impacts only aliens properly
within the scope of the limitations in 8 CFR 208.13(c)(4),
1208.13(c)(4). Aliens who are subject to the third-country-transit bar,
8 CFR 208.13(c)(4), 1208.13(c)(4), and who clear the reasonable-fear
screening standard will be placed in proceedings before an immigration
judge, just as aliens who clear the credible-fear standard would be.
See 84 FR at 33838; see also Intervening Joint Final Rule. In those
proceedings, the alien will have the opportunity to raise whether the
asylum officer incorrectly identified the alien as subject to the bar
to asylum. If an immigration judge determines that the asylum officer's
determination was incorrect, the alien will be able to apply for
asylum, withholding of removal, and protection under the CAT
regulations. See Intervening Joint Final Rule. Such aliens can appeal
the immigration judge's decision in these proceedings to the BIA and
then seek review from a Federal court of appeals. Id.; see also 8 CFR
1003.1(b)(9); INA 242, 8 U.S.C. 1252. The Departments note that the
standard established in the IFR helped ensure--in contrast to
commenters' concerns--that the outcome of the process delineated in the
rule is not predetermined and that aliens potentially subject to the
bar receive the full and fair hearing required by the Due Process
Clause. Following public comment periods on the NPRM that introduced
this rule and on the Intervening Joint Final Rule, the Departments
published the Intervening Joint Final Rule to codify the Departments'
view that aliens with negative fear determinations that an Immigration
Judge has vacated are better placed in the more limited asylum-and-
withholding-only proceedings. See 8 CFR 1208.31(g). No additional
changes are necessary in this publication.
Comment: Two groups predicted that the IFR will reduce pro bono
legal representation available to applicants for asylum. The commenters
predicted that lawyers will be required to spend additional time on
each case because lawyers will need to brief issues related to the
rule, file separate applications for spouses and children who will not
receive derivative asylum, and take more time to present statutory
withholding and CAT claims than they would for asylum claims. The
groups argued that these requirements will reduce the number of clients
each pro bono lawyer will be able to represent.
Response: The Departments respectfully disagree with these
predictions. First, the commenters assume that individuals will not
apply for asylum in other countries and thus will be barred by the rule
from receiving protection. Many individuals may apply for, and may
receive, asylum elsewhere, which would reduce the burden on the
immigration system and lead to fewer individuals requiring legal
representation. Also, to the extent the rule deters frivolous asylum
claims, pro bono attorneys will be able to devote their time to the
fewer, meritorious claims remaining.
7. Specific Populations
a. Adults
Comment: Several commenters raised concerns that the IFR could have
a disproportionate impact on certain adults alleged to be particularly
vulnerable, such as victims of domestic and gender-based violence;
lesbian, gay, bisexual, and transgender (``LGBT'') \32\ individuals;
children; mothers; and women.
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\32\ Commenters alternatively used the terms LGBTQ, which refers
to lesbian, gay, bisexual, transgender, and queer/questioning;
LGBTQI, which further includes intersex; and LGBTQ+. For
consistency, this final rule uses the acronym LGBT.
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Commenters stated that these individuals may be unable to
effectively recount to asylum adjudicators the harms that they have
suffered unless they feel safe and secure, which, according to the
commenters, would not be possible in Mexico, Guatemala, or
[[Page 82276]]
many countries that are parties to the relevant treaties. Commenters
further explained that these populations face harm in Mexico, Central
America, and other regions of the world, and alleged as a result that
the United States cannot expect them to seek relief in third countries
where they are equally at risk of harm as in their home countries. In
other words, according to these commenters, the rule violates
international and Federal law because it creates a bar to asylum
without considering whether the country or countries through which an
alien has transited would provide an individual with a procedure that
provides a level of protection similar to the U.S. system. Commenters
noted that other countries may not recognize certain harms as
persecution for the purposes of asylum, though the same harms may
qualify as persecution under the United States' asylum laws.
Regarding LGBT individuals specifically, commenters highlighted
examples of discrimination and violence in Mexico and Central America.
Multiple commenters stated that the United States has implicitly
recognized the vulnerability of LGBT individuals by, as of July 2019,
not returning LGBT individuals to Mexico under the MPP. See Anna
Giaritelli, LGBT Asylum-Seekers Exempt from `Remain in Mexico' Policy
and Can Stay in US, Washington Examiner, https://www.washingtonexaminer.com/news/lgbt-asylum-seekers-exempt-from-remain-in-mexico-policy-and-can-stay-in-us (last visited Dec. 10, 2020)
(noting that a U.S. official said that the United States was not
returning LGBT individuals to Mexico because ``that population would be
at greater risk of personal harm if forced to remain in [Mexico]'').
Regarding children, including unaccompanied children
specifically,\33\ commenters explained that children are frequently
targeted by gangs and cartels for recruitment or for sexual violence.
Such violence against children, according to commenters, is often
underreported or not investigated, and child welfare programs in El
Salvador, Guatemala, Honduras, and Mexico are allegedly underfunded and
inaccessible.
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\33\ Comments regarding unaccompanied alien children are
discussed further in section III.C.7.b, below.
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Response: This rule is a rule of equal application that does not
bar any particular classes of asylum applicants from seeking relief due
to the nature of the harm the applicant has suffered or the applicant's
particular race, religion, nationality, political opinion, or
particular social group membership.\34\ DHS and DOJ further note that
an alien may still seek protection in a third country even if that
country has not previously recognized certain harms as persecution, or
certain classes of victims as a qualifying particular social group. As
noted in the IFR, asylum laws may evolve over time to respond to
contemporary circumstances. 84 FR at 33840 (explaining that European
states in 1990 adopted the Dublin Regulation, which came into force in
1997, as a response to a mass fleeing of refugees and economic migrants
fleeing communism at the end of the Cold War); see also Matter of A-B-,
27 I&N Dec. 316, 318-19 (A.G. 2018) (summarizing the development of BIA
case law regarding the interpretation of ``particular social group'').
And if an alien receives a final judgment denying protection in the
third country, then the alien may present proof of such judgment and
remain eligible to seek asylum in the United States. See 8 CFR
208.13(c)(4)(i), 1208.13(c)(4)(i).
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\34\ Nevertheless, the ability to seek the relief of asylum does
not necessarily mean that an alien's claim will qualify for asylum,
as, for example, not all alleged particular social groups are
cognizable. See, e.g., Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G.
2019) (providing that a particular social group must ``share[ ] a
common immutable characteristic, [be] defined with particularity,
and [be] socially distinct'' (citing Matter of M-E-V-G-, 26 I&N Dec.
227, 237-38 (BIA 2014))).
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Many of the comments questioning the safety of Mexico, Guatemala,
and other countries focused on criminals who target aliens in transit
who are perceived to be vulnerable. To the extent individuals are
targets of crime by non-governmental actors, the Departments encourage
them to seek aid from the government in the country in which the
individuals have been targeted, rather than taking a long, perilous
journey to the United States that would put them at risk of further
victimization. To the extent commenters are concerned about the safety
of the third countries that an alien may transit en route to the United
States, the Departments note that if an alien believes that he or she
would likely be subject to persecution on account of a protected ground
or torture in the country that he or she transits en route to the
United States, he or she may seek withholding of removal under section
241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or withholding of removal or
deferral of removal under the CAT regulations to avoid the possibility
of being returned to that country. See 84 FR at 33834. Thus, despite
the assertions of commenters, the Departments disagree that the rule
leaves such aliens without any possible protection in the United
States. Further, as previously noted, statistics detailing violence in
Mexico are generalized and may not necessarily indicate the presence of
the kind of persecution that asylum was designed to address.\35\
Concentrated episodes of violence in Mexico do not mean the country, as
a whole, is unsafe for individuals fleeing persecution.\36\ Indeed,
recognition of a similar concept is already reflected in other areas of
the immigration regulations: Asylum applications are to be denied if
the applicant could ``avoid future persecution by relocating to another
part of the applicant's country,'' and, under the circumstances, it
would ``be reasonable to expect the applicant to do so.'' 8 CFR
208.13(b)(1)(i)(B), 1208.13(b)(1)(i)(B).
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\35\ The majority of publicly available data and statistics
regarding violent crime in Mexico are generalized and not
categorized by motive. A recent case study exploring crime patterns
in Mexico City noted ``in this regard, there has been no relevant
evidence that provides a good measure of short-term trends for a
selected range of crimes experienced by individuals, including those
reported to the police.'' C.A. Pina Garcia, Exploring Crime Patterns
in Mexico City, J. of Big Data 3 (2019), available at https://journalofbigdata.springeropen.com/track/pdf/10.1186/s40537-019-0228-x (last visited Dec. 10, 2020). Similarly, the U.S. Department of
State's Overseas Security Advisory Council recommends that analysis
of crime data from Mexico should ``use any reported national crimes
statistics for trend analyses and not as statistical
representation.'' U.S. Dep't of State, Mexico 2020 Crime & Safety
Report: Hermosillo, June 24, 2020, available at https://www.osac.gov/Content/Report/35043cbd-64a6-4e2e-b650-19027e7900a8
(last visited Dec. 11, 2020). Another recent case study from Mexico
noted that ``institutions do not generate sufficient data and
statistical information. In many cases, data is not disaggregated by
sex or type of crime, and there is no existing information over the
number of murders, cause of death or progress in the
investigations.'' Cat[oacute]licas por el Derecho a Decidir &
Comisi[oacute]n Mexicana de Defensa y Promoci[oacute]n de los
Derechos Humanos, Femicide and Impunity in Mexico: A Context of
Structural and Generalized Violence, available at https://www.ecoi.net/en/file/local/1085985/1930_1343058124_cddandcmdpdh-forthesession-mexico-cedaw52.pdf (last visited Dec. 10, 2020).
\36\ Based on these considerations and others, as explained in
this final rule, the Departments disagree with the Ninth Circuit's
conclusion that the Departments failed to consider evidence
demonstrating that Mexico is not a safe option for asylum seekers,
thereby ``fail[ing] to consider an important aspect of the
problem.'' E. Bay Sanctuary Covenant, 964 F.3d at 850-51 (quoting
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins.
Co., 463 U.S. 29, 43 (1983) [hereinafter Motor Vehicle Mfrs.]).
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Mexico is a large nation that is made up of 32 states, which span
approximately 760,000 square miles, and it has a population of
approximately 130 million people. Landau Memorandum at 4. As recognized
by the United States ambassador to Mexico, security conditions may vary
widely both across
[[Page 82277]]
and within Mexico. Id. Reports of violence often refer to localized
violence and ``do not reflect conditions across the county as a
whole.'' Id. Nearly all applications for protection in Mexico are
presented in Chiapas, Mexico City, Veracruz, Tabasco, or Nuevo Leon,
which ``generally rank well on security issues based on Mexican
government crime statistics,'' and none of which are the subject of a
U.S. Department of State ``Level 4'' (Do Not Travel) advisory. Id.
Furthermore, ``[t]he United States Mission in Mexico is not aware of
any pattern of violence targeted at potential refugees awaiting
adjudication of their applications.'' Id. at 5.
Frequently, discussions about conditions in Mexico conflate the
perils that refugees might face traversing dangerous parts of Mexico en
route to the United States with the ability to seek protection in a
safe place in Mexico. Id. For example, Chiapas, Mexico's southernmost
state along the border with Guatemala, ``routinely ranks among the
safest Mexican States by all metrics.'' \37\ Id. at 4. Notably, in
Mexico, refugees have the right to seek protection in any state in
which they are present. Id. For all these reasons, the Departments
disagree with those commenters asserting that Mexico cannot provide
safe refuge for any asylum seekers.
---------------------------------------------------------------------------
\37\ As noted, supra, living conditions in Mexico overall are
also improving, and the United Nation's Human Development Report
recently characterized Mexico as a country with ``high human
development'' based off of the likelihood of having: a long and
healthy life, access to knowledge and a decent standard of living.
United Nations, Human Development Report: Mexico at 301, 2019,
available at http://hdr.undp.org/sites/default/files/hdr2019.pdf
(last visited Dec. 11, 2020).
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Finally, DHS has no policy of categorically exempting LGBT
individuals from the MPP. DHS has set forth categories of aliens who
are not amenable to the MPP, and the LGBT community is not one of those
categories. See CBP, Guiding Principles for Migrant Protection
Protocols, Jan. 28, 2019, available at https://www.cbp.gov/sites/default/files/assets/documents/2019-Jan/MPP%20Guiding%20Principles%201-28-19.pdf. The decision to place amenable aliens in the MPP is made by
immigration officers in the exercise of their prosecutorial discretion.
Comment: One commenter claimed that the rule will force immigrants
``into the shadows'' and thus discourage them from reporting crimes.
Response: The comment does not explain the basis for its assertion.
It seems to assume that individuals who are barred from obtaining
asylum will not apply for alternative forms of protection such as
withholding or deferral of removal and instead opt to remain illegally
in the United States. Further, the Departments note the potential
availability of U nonimmigrant status for certain victims of crime. See
INA 101(a)(15)(U), 214(p), 8 U.S.C. 1101(a)(15)(U), 1184(p). The
Departments believe that all victims of crime should come forward, and
the Departments support policies to encourage the reporting of crime.
The Departments decline, however, to reject sound legal policy in other
areas of the law based on conjecture that some may respond by violating
the law or declining to report crime.
b. Accompanied and Unaccompanied Alien Children
Comment: Many commenters expressed concern over the effect that the
IFR would have on children, both accompanied and unaccompanied.
Commenters stated that the IFR is inconsistent with the Act because
Congress explicitly exempted UAC from the safe-third-country bar. INA
208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E). Commenters stated that, by
exempting unaccompanied children from the safe-third-country provision,
Congress indicated its intent not to limit asylum eligibility for UAC
in general--in contrast to the present rule. Other commenters stated
that, even if the substance of this rule is consistent with the safe-
third-country provision, the IFR does not adequately explain why the
Departments omitted an exemption for UAC.
Commenters also stated that the IFR will prevent many children from
applying for asylum since children have no control over where their
families take them or where their families decide to apply for asylum.
Response: The Departments believe that the rule is consistent with
the Act with respect to UAC. As explained in the IFR, the Departments
recognize that UAC are exempt from two of the three statutory bars to
applying for asylum: The ACA bar and the one-year filing deadline. INA
208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E). However, Congress declined to
exempt UAC from other limitations on asylum applications and from
asylum eligibility bars. For example, Congress did not exempt UAC from
the bar on filing successive applications for asylum (INA 208(a)(2)(C),
8 U.S.C. 1158(a)(2)(C)), the various bars to asylum eligibility in
section 208(b)(2)(A) of the Act, 8 U.S.C. 1158(b)(2)(A), or the bars,
like this one, established pursuant to the Departments' authorities
under section 208(b)(2)(C) of the Act, 8 U.S.C. 1158(b)(2)(C).
Further, UAC, like others subject to the third-country-transit bar
at 8 CFR 208.13(c)(4) and 1208.13(c)(4), still will be considered for
withholding of removal under section 241(b)(3) of the Act, 8 U.S.C.
1231(b)(3), and for protection under the CAT regulations.
In addition, this rule may encourage families with children and UAC
to avoid making a long, arduous, and extremely dangerous journey that
brings with it a great risk of harm that could be avoided if they were
to more readily avail themselves of legal protection from persecution
or torture in a third country closer to the family's or child's country
of origin. Further, Chiapas and others may represent safe places to
settle in Mexico that would not require any refugees, including
children and families, to traverse across dangerous parts of the
country. Cf. Landau Memorandum at 4-5. The numbers of family units and
UAC migrating to the United States have grown. In Fiscal Year 2019,
more than 60 percent of persons unlawfully crossing the southern land
border were family units or UAC, whereas these classes of individuals
made up less than 50 percent of such crossings in Fiscal Year 2018.
Compare CBP, Southwest Border Migration FY 2019, Nov. 14, 2019,
available at https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019, with CBP, Southwest Border Migration FY 2018, Nov. 19, 2018,
available at https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018; see also Apprehension, Processing, Care, and Custody of Alien
Minors and Unaccompanied Alien Children, 84 FR 44392, 44404 (Aug. 23,
2019) (reflecting significant increases in the number of family units
apprehended at the southwest border since FY 2013). Also, in Fiscal
Year 2019, CBP apprehended 430,546 family units from El Salvador,
Guatemala, and Honduras at the southern land border, up from 103,509
such apprehensions in Fiscal Year 2018. Compare CBP, U.S. Border Patrol
Southwest Border Apprehensions by Sector Fiscal Year 2019, Nov. 14,
2019, available at https://www.cbp.gov/newsroom/stats/sw-border-migration/usbp-sw-border-apprehensions-fy2019, with CBP, U.S. Border
Patrol Southwest Border Apprehensions by Sector Fiscal Year 2018, Nov.
9, 2018, available at https://www.cbp.gov/newsroom/stats/usbp-sw-border-apprehensions. The Departments note that families with children
and UAC would be able to seek protection in the countries through which
they transit, as the rule would only bar asylum for individuals who
[[Page 82278]]
pass through countries that are parties to the Refugee Convention or
Refugee Protocol. Even if they do not seek such protection, there are
still forms of protection available to them in the United States
through withholding of removal under the Act and withholding or
deferral of removal under the CAT regulations. As stated above, the
rule does not deprive them of all possible protections in the United
States.
The rule does not violate the TVPRA because asylum officers retain
initial jurisdiction over a UAC's asylum application. This rule simply
adds an additional bar for asylum officers to apply during their
adjudication of a UAC's asylum application.
Finally, as discussed above, the Departments note that UAC who are
barred from asylum eligibility under this rule due to travel through a
third country may still be eligible for withholding of removal under
section 241 of the Act, 8 U.S.C. 1231, or protection under the CAT
regulations. The Departments are cognizant of the circumstances often
presented by UAC, as observed in section III.C.5, but the INA does not
require special protections for UAC beyond those already contained in
the statute or the provision of additional, extra-statutory
protections. Moreover, the Departments already account for the
circumstances of UAC, particularly in immigration proceedings. See,
e.g., EOIR, Operating Policies and Procedures Memorandum 17-03:
Guidelines for Immigration Court Cases Involving Juveniles, Including
Unaccompanied Alien Children, Dec. 20, 2017, available at https://www.justice.gov/eoir/file/oppm17-03/download. Like all aliens subject
to the rule, UAC have the opportunity to apply for protection in
multiple countries prior to their arrival in the United States.
Further, a UAC who is old enough to travel independently across
hundreds or thousands of miles to the United States can logically also
be expected to seek refuge in one of the countries transited if the UAC
is genuinely seeking protection. A UAC who is not old enough to travel
independently necessarily must travel with an adult, and again, there
is no reason that an adult cannot apply for protection in any country
offering refuge if the adult and the UAC are genuinely seeking
protection. In short, the Departments have not overlooked the special
circumstances of UAC in crafting this rule, but those circumstances are
insufficiently compelling to warrant a special exception for UAC from
the rule's application.
8. Policy Considerations
a. Nation's Core Values
Comment: Many commenters expressed opposition to the IFR because
they claimed that its provisions depart from the core principles of the
United States. Commenters remarked that the United States has
historically welcomed those fleeing persecution and violence, and they
claimed that the provision of protection and the securing of human
rights for all people are core principles of the Nation.
Similarly, some commenters stated that extending compassion to
those in need is a core American value. Other commenters stated that
immigration and diversity are themselves core principles of the United
States. Still other commenters discussed American values in the context
of providing humanitarian aid and leadership associated with these
issues. Commenters also stated that the opportunity to flee one's
country and seek safety in another is a fundamental right protected by
the United States. Commenters suggested that these core principles are
memorialized in Senate reports, the inscription on the Statue of
Liberty, the Declaration of Independence, the United States Code, and
other various sources.
Other comments were brief but asserted that the policy was ``un-
American,'' ``contrary to our nation's core values,'' and ``un-
Christian.''
Response: Congress has expressly authorized the Departments to
limit asylum eligibility. The United States' non-refoulement
obligations are reflected in the withholding provisions of the Act and
the CAT regulations. Asylum remains available to aliens who have
nowhere else to turn. For all the reasons discussed in the IFR and
elsewhere in this final rule, the Departments believe this approach is
sound, prudent policy that is warranted by the conditions at the
southern land border and is consistent with the asylum statute.
The rule has several objectives. First, it seeks to disincentivize
aliens with meritless and non-urgent asylum claims from seeking entry
to the United States. See 84 FR at 33831. The rule also seeks to reduce
misuse of the global system of refugee protection, since aliens who
traveled through a country that is obligated to provide non-refoulement
protection as a party to the Refugee Convention or Refugee Protocol,
but did not seek such protection, may have meritless claims and thus
may be misusing the system. Id. Meritless or non-urgent claims
undermine the humanitarian purposes of asylum, frustrate negotiations
with other countries, and encourage heinous practices such as human
smuggling and other abuses. Id. Accordingly, the rule also seeks to
curb the practice of human smuggling and its tragic effects and to
bolster negotiations on migration issues between the United States and
foreign nations. Id. Finally, the rule makes a policy decision to
direct relief toward those aliens who were unable to receive protection
elsewhere and toward aliens subject to ``severe forms of trafficking in
persons,'' defined at 8 CFR 214.11, so that those aliens are able to
obtain asylum in the United States more quickly. Consequently, the rule
bars asylum eligibility for aliens who might have been able to obtain
protection in another country but who chose not to see such protection.
Id.
DHS and DOJ believe that the rule upholds the ultimate objectives
of the commenters in the following ways. First, the rule facilitates
effective processing of asylum claims so that aliens with the most
urgent claims--those subject to extreme forms of human trafficking and
those whose claims were denied in third countries--may be more quickly
processed. The rule also decreases the incentive for human smuggling
and other dangerous methods used to cross the border by tying the
success of an alien's asylum claim more closely to the merits of the
underlying claim. Under this rule, only people with a legitimate need
for asylum, unable to claim it elsewhere, will have the incentive to
enter the United States to raise an asylum claim. Second, the rule
encourages aliens fleeing persecution and violence to apply for asylum
at the first available opportunity. Truly vulnerable aliens will
accordingly be more likely to obtain protection from persecution, in
the U.S. or a third country, sooner than in the absence of this final
rule.
DHS and DOJ remain vigilant in all efforts to ensure that aliens
who face dire circumstances may seek protection. Notwithstanding the
assistance that the United States provides to numerous countries across
the globe, including Mexico, Guatemala, El Salvador, and Honduras, the
U.S. government is committed to making the asylum process for aliens at
the southern land border more effective. Currently, the immigration
system faces severe strain, and asylum claims often take years to fully
process. See 84 FR at 33831. This kind of system is ineffective for all
parties involved, draining government resources to process and
adjudicate these claims and prolonging final resolutions for aliens
seeking protection. Id. This rule seeks to ameliorate this
[[Page 82279]]
strain and inefficiency in order to assist aliens who most need our
help.
b. Humanitarian Purposes of Asylum
Comment: Many comments invoked policy considerations, stating that
the IFR is inhumane and contradicts the humanitarian purposes of asylum
relief. Various commenters emphasized the humanitarian aspects of
asylum in the United States--welcoming aliens and providing them with
relief, protection, shelter, and other resources--and noted that those
aspects of asylum distinguish the United States from other countries.
Commenters argued that, without eligibility for asylum and the
resources that follow, aliens would face uncertainty, financial
burdens, stress, and violence. Leaving aliens to deal with such
realities in the wake of the rule is inhumane, commenters claimed.
Commenters also voiced concern that the IFR is inhumane because it
allegedly prevents aliens who face violence and persecution from
seeking protection, thereby subjecting them to continued violence in
their home countries, or, alternatively, to violence in a third country
in which they would have to apply for asylum under this rule.
Specifically referencing Guatemala, Honduras, and El Salvador,
commenters stated that aliens from those countries who are seeking
asylum are often fleeing violence, if not death. One commenter stated
that demand for drugs from countries like the United States fuels much
of the violence in those countries.
Commenters also alleged that the IFR has inhumane effects,
including separating families, neglecting children, and subjecting
women to abuse. One commenter stated that the IFR would lead to
displaced aliens who are in neither their home country nor their
preferred country.
Overall, commenters were opposed to the IFR because they claimed it
is antithetical to the purpose of asylum itself, as legitimate claims
could be procedurally denied based on the fact that the alien had
failed to apply for protection in a third country of transit. Some
commenters urged humanitarian immigration reform, while most asked the
Departments to withdraw the rule altogether.
Response: DHS and DOJ disagree that the rule is antithetical to the
humanitarian purposes of asylum. In contrast, this rule seeks to
address the humanitarian crisis at the southern border and more
effectively address the situation of aliens who urgently need
protection, including those who are victims of severe trafficking and
refugees who have no other option.
The United States' immigration system has experienced extreme
strain over the past decade, and there are questions about the
prevalence of fraudulent claims. See 84 FR at 33830-31. Despite the
tripling of cases referred to DOJ for adjudication, which could take
years to resolve, immigration judges grant only a small percentage of
asylum requests adjudicated each year. Id. Further, the number of new
cases has increased an average of 34 percent each year since Fiscal
Year 2016, with a higher than 70 percent increase from Fiscal Year 2018
through Fiscal Year 2019. EOIR, Adjudication Statistics: New Cases and
Total Completions, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1060841/download. There is no evidence that the record
number of cases referred each year will slow in the future. In
addition, the U.S. government continues to encounter massive human
smuggling and its tragic effects. 84 FR at 33831.
Through this rule, the Departments seek to provide humanitarian aid
effectively for those aliens who need it the most. Thus, with limited
exceptions, this rule limits asylum relief to those aliens who have no
other option for relief and aliens who experience extreme forms of
human trafficking, defined at 8 CFR 214.11. Id.
Mexico is a party to, and has ratified the 1951 Refugee Convention,
the 1967 Refugee Protocol, and the CAT. See Landau Memorandum at 1.
Additionally, Mexico is a signatory to, and has incorporated into its
law, the 1984 Cartagena Declaration on Refugees. Id. Over the past
decade, as explained previously, Mexico has substantially reformed its
immigration and refugee laws, and in 2020, it more than doubled the
budget for COMAR.\38\ Id. at 2-3. The Mexican Constitution was amended
in 2016 to include the specific right to asylum. Id. at 2. Further, the
grounds for seeking and obtaining refugee status under Mexican law are
broader than the grounds under United States law. Id. Individuals in
Mexico may seek refugee status not only as a result of persecution in
their home countries on the basis of race, religion, nationality,
gender, membership in a particular social group, or political opinion,
but also on the basis of generalized violence or widespread violation
of human rights. See id.; see also 2011 LRCPPA, arts. 13(I), 13(II).
Prospective refugees may apply at any COMAR office in the country
within 30 days of entry into Mexico, subject to extension for good
cause. Landau Memorandum at 2. Because prospective refugees may choose
any state to apply for refugee status, two-thirds of refugee
applications are filed in Chiapas, which is one of Mexico's safest
states. Id. at 4. And if conditions in a particular state happen to
change, Mexico allows for the transfer of an asylum application from
one state to another. See id. at 2. Further, prospective refugees are
legally eligible to work and access public health services during the
pendency of their cases, with COMAR under a legal obligation to process
applications within 90 days. Id. The United States Ambassador to Mexico
recently disputed allegations that Mexico improperly returns
prospective refugees to their countries of origin, stating that he has
received ``repeated assurances [from] senior Mexican officials'' that
they recognize their obligation to offer protection to refugees. Id. at
5. In short, because Mexico is a party to international agreements
regarding the treatment of refugees and has recently expanded its
capacity to process asylum claims, aliens who truly need urgent
protection may apply in Mexico upon arrival in that country, thereby
hastening the process to ultimately obtain asylum relief. See 84 FR at
33839-40; see also UNHCR, Universal Periodic Review 3rd Cycle, 31st
Session: Mexico, National Report 2, 10-12 (2018), available at https://www.ohchr.org/EN/HRBodies/UPR/Pages/MXindex.aspx (last visited Dec. 10,
2020) (describing the protocols and ``protection mechanisms' that
Mexico has developed for asylum seekers and others, including measures
specifically designed to ensure protection for children, provision of
health care, and prevention of violence); see also UNHCR, Fact Sheet:
Mexico (Apr. 2019), available at https://reporting.unhcr.org/sites/default/files/UNHCR%20Factsheet%20Mexico%20-%20April%202019.pdf
[[Page 82280]]
(last visited Dec. 11, 2020) (describing how Mexico has been
transforming ``its migration policy from a policy guided by security
and control, to an approach which places greater emphasis on human
rights, protection and regional cooperation''); id. (``Mexico has made
important commitments to significantly increase its staff and
activities to support the work of the Mexican authorities in processing
an increased number of asylum claims and ensure protection of its
Persons of Concern''). Importantly, aliens who are ineligible for
asylum in light of this rule may still apply for withholding of removal
under the Act and withholding or deferral of removal under the CAT
regulations in the United States. 84 FR at 33839-40. By decreasing the
incentive for filing meritless claims and focusing relief on aliens who
are unable to obtain protection elsewhere, DHS and DOJ seek to more
effectively and more quickly provide humanitarian aid. Id. at 33839.
---------------------------------------------------------------------------
\38\ This budget increase is especially noteworthy in light of
concerns raised by immigration-related organizations and others that
COMAR lacks sufficient resources. See, e.g., Congressional Research
Serv., Mexico's Immigration Control Efforts 2, Feb. 19, 2020,
available at https://fas.org/sgp/crs/row/IF10215.pdf (last visited
Dec. 11, 2020) (noting that some experts have asserted that ``COMAR
reportedly does not have sufficient budget or staff''); Asylum
Access, Mexican Asylum System for U.S. Immigration Lawyers FAQ, Nov.
2019, available at https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.pdf (last visited
Dec. 11, 2020) (asserting that, although Mexico has seen a
``substantial increase in refugees seeking asylum,'' the Mexican
government ``has not provided a commensurate budgetary increase to
process the applications''). These reports from 2019 and early 2020
necessarily do not take into account the effects of the recent
doubling of COMAR's budget. For this reason and others, the
Departments consider the more recent description of the Mexican
asylum system from the Ambassador of Mexico to be a more persuasive
indication of conditions for those seeking refuge in the country.
---------------------------------------------------------------------------
Also through this rule, DHS and DOJ sought to curb the humanitarian
crisis of human smuggling. See id. at 33830. The likelihood of a
lengthy asylum process, throughout which asylum applicants may remain
in the United States (typically free from detention and with work
authorization) often incentivizes human smugglers and men, women, and
children with non-urgent asylum claims to make the dangerous journey
across the southern land border. Id. at 33831. By directing relief to
aliens who legitimately fear persecution and to aliens with the most
urgent asylum claims, the rule aims to reduce the incentives for those
aliens who lack a legitimate fear of persecution and those aliens with
non-urgent claims to engage in dangerous efforts to reach the United
State, thereby reducing the humanitarian crisis. Id. at 33840.
As previously stated, one overarching purpose of the rule is
assisting in the resolution of the humanitarian crisis at the border.
See id. at 33830; Thuraissigiam, 140 S. Ct. at 1967 (noting the drastic
increase in credible-fear claims at the border over the past decade,
and that, in 2019, only 15 percent of those found to have a credible
fear received asylum). Accordingly, DHS and DOJ do not encourage the
exacerbation of such circumstances; rather, this rule seeks to aid
those populations by encouraging them to apply for asylum in the first
safe country they encounter in order to most quickly obtain assistance
and protection from those circumstances from which they fled, and by
processing claims for those who most desperately need help.
Accordingly, in contrast to the concerns raised in the comments,
this rule works to more effectively and quickly provide humanitarian
aid to aliens who most need it and reduce the humanitarian crisis of
human smuggling.
c. Failure To Address Root Causes of Migration
Comment: Several commenters remarked that the IFR fails to address
the root cause of requests for asylum--widespread violence from which
aliens must flee. Many of those commenters accordingly opposed the rule
and asked that the U.S. government consider addressing the root causes
of migration instead. Those commenters stated that the United States,
historically a global leader on such issues, is uniquely positioned to
address the violence and other extreme circumstances that prompt aliens
to migrate. Some commenters concluded that the IFR fails to stop the
flow of migrants because the causes remained unaddressed.
Some comments offered suggestions on how the United States could
address the violence in Central America and Mexico: Expanding and
investing in programming for families, assisting Mexico and other
countries in expanding their capacities to process asylum claims, and
bolstering protections for those aliens in the United States.
Response: DHS and DOJ acknowledge the violence and crime that many
individuals face and appreciate the suggestions from commenters
regarding ways in which the United States may assist countries with
high levels of violence and aliens fleeing such violence. The United
States, through coordination and work among numerous agencies such as
DOJ, DHS, the Department of State, and the United States Agency for
International Development, provides robust assistance to individuals in
need across the globe. See generally U.S. Dep't of State, Foreign
Assistance, https://www.foreignassistance.gov. The Departments' efforts
to limit asylum eligibility to aliens in most need of asylum is
complementary to these efforts.
Further, the question of improving internal conditions in foreign
countries is beyond the scope of this rulemaking. This rule addresses
one component of the Nation's immigration system--asylum relief--by
reducing the current strain on the system so that meritorious asylum
claims may be more effectively processed. See 84 FR at 33829-30. The
rule does so by discouraging misuse of the asylum system, since aliens
who travel through a country where protection was available but
declined to seek protection may have meritless claims. Id. Such
meritless claims undermine the humanitarian purposes of asylum, and
encourage heinous practices such as human smuggling. Accordingly, the
rule furthers policies likely to reduce the practice of human smuggling
and its tragic effects. Id. Finally, the rule makes a policy decision
to direct relief to aliens who were unable to receive protection
elsewhere and aliens subject to ``severe forms of trafficking in
persons,'' defined at 8 CFR 214.11, enabling such aliens to more
quickly obtain asylum relief in the United States because the number of
asylum applicants referred to an immigration judge for consideration of
their application is likely to better align with EOIR's adjudicatory
capacity.\39\ Instituting procedures that better align the availability
of asylum with those applicants most in need of protection will help
ensure those applicants have access to relief, and the benefits that
flow from a grant of asylum,\40\ in a timely manner. Consequently, the
rule bars aliens from being eligible for asylum who could have obtained
protection in another country. Id.
---------------------------------------------------------------------------
\39\ In recent years, the large influx of asylum applications
filed with the immigration court system has outpaced EOIR's
adjudicatory capacity. For example, in Fiscal Year 2019, EOIR
received a record a number of asylum applications (213,798), but
issued final decisions in less than half the total number received
(91,270). See EOIR, Adjudication Statistics: Total Asylum
Applications, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1106366/download; EOIR, Adjudication Statistics:
Asylum Decision Rates, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1248491/download.
\40\ Asylum, once granted, creates a path to lawful permanent
resident status and U.S. citizenship and affords a variety of other
benefits. See, 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(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), 8 CFR 209.2
(allowing the Attorney General or the Secretary to adjust the status
of an asylee to that of a lawful permanent resident); 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).
---------------------------------------------------------------------------
Based on these considerations, the Departments believe that the
rule does address some causes of migration, such as the incentives for
aliens with non-meritorious or non-urgent claims to migrate. Id. at
33841, 33831. The rule aims to reduce these causes so that the United
States may more effectively process claims for those with a genuine
need, and the rule encourages those fleeing persecution to secure
protection at the first available opportunity. See id. at 33839.
Further, the rule continues the
[[Page 82281]]
provision of asylum relief for certain aliens who are victims of human
trafficking or aliens who were not granted protection after applying
for asylum in a third country. Id. at 33840. Importantly, the rule also
seeks to assist in negotiations with Mexico and other countries in
order to adopt a more widespread effort to address issues related to
migration, security, and humanitarian aid, including many of the issues
identified in these comments. Id. In this way, the United States
continues to lead international efforts to address these issues.
The government continues to evaluate and assess ways to address
these challenges, and this rule is one way through which the U.S.
government is addressing the current challenges to the asylum process.
d. Rule Will Encourage Illegal Border Crossings
Comment: Many comments claimed that the IFR encourages border
crossing without inspection, including human smuggling and the use of
clandestine, dangerous routes. Comments claimed that the IFR
effectively eliminated asylum relief at the border, thereby
incentivizing border crossing without inspection. Several comments
particularly disagreed with the rule's statement that human smuggling
created the current humanitarian crisis. The comments asserted, rather,
that the practice of human smuggling was a consequence of the crisis,
not a cause. The comments expressed that aliens resort to human
smuggling in order to flee violence and persecution, which contradicts
the rule's assertion that aliens resort to human smuggling because it
is widely available. Further, some comments claimed that the rule's
additional legal requirements incentivize human smuggling because
aliens who are not able to pass the high threshold of ``reasonable
fear'' review will risk crossing the border with smugglers rather than
be returned to their countries.
Commenters asserted that increased smuggling fees and increased
death rates at the border demonstrate that people fleeing violence will
risk their lives to reach safety, despite efforts such as the IFR that
aim to deter border crossings. As a result, the commenters claimed, the
IFR further exposes such aliens to increased danger.
Response: DHS and DOJ disagree that the rule encourages border
crossing without inspection through means such as human smuggling and
the choice of more clandestine, dangerous routes. The Departments
promulgated the rule in part to reduce the incentives to cross without
inspection in an effort to reduce such practices.
As explained in the IFR, the U.S. government continues to encounter
human smuggling and its tragic effects. See 84 FR at 33830-31.
Accordingly, this rule seeks to curb the humanitarian crisis of human
smuggling. Id. at 33830. The likelihood of a lengthy asylum process,
throughout which asylum applicants may remain in the United States free
from detention and with work authorization, incentivizes aliens with
meritless asylum claims to make the dangerous journey across the
southern land border, often through the use of human smugglers. Id. at
33831. By focusing on the most urgent asylum claims, the rule aims to
reduce the incentive for those with non-urgent claims to engage in
risky efforts to evade inspection like the use of human smugglers or
the use of dangerous routes to travel to the United States--thereby
reducing the humanitarian crisis. Id. at 33840.
The IFR's statement that it ``seeks to curtail the humanitarian
crisis created by human smugglers bringing men, women, and children
across the southern land border,'' id. at 33840, refers to the
particular crisis of human smuggling and the associated consequences.
The smuggling industry is largely financially motivated, and courts
have recognized that U.S. immigration policy influences smuggling
activity. See id. at 33841; see also E. Bay Sanctuary Covenant, 354 F.
Supp. 3d at 1115 (``Reviewing this [news article] with deference to the
agencies' views, it at least supports the inference that smugglers
might similarly communicate the Rule's potential relevant change in
U.S. immigration policy, albeit in non-technical terms.''). Further,
the Departments believe that, once migrants learn of these changes to
the United States' asylum regulations, the incentive to come to the
United States may be reduced, which in turn would decrease the demand
for human smuggling. The rule's focus on ensuring that meritorious
asylum claims are more efficiently considered within the United States,
by incentivizing individuals able to do so to apply for relief in other
countries, will reduce the incentive for unlawful smuggling and evasion
of the asylum system and, thus, help alleviate this humanitarian
crisis. See 84 FR at 33831.
The Departments also note that the rule does not eliminate asylum
relief at the border, as some commenters have claimed. See id. The
Departments determined that aliens denied protection in a third country
and victims of trafficking in persons, defined at 8 CFR 214.11, have
the most urgent asylum claims, and the United States may more
effectively process such claims in accordance with the provisions of
the rule. See id. Far from eliminating asylum relief, the Departments
seek to provide protection more effectively to those who most urgently
need it.
In contrast to the concerns raised in the comments claiming that
the IFR causes or exacerbates these dangerous practices, promulgation
of this rule reflects the Departments' commitment to curbing the
practices of human smuggling and other dangerous methods for crossing
the border without inspection.
Comment: One comment briefly expressed concern that the IFR would
create more incentives for human smugglers to ``find ways to get
individuals through the border undetected, thereby increasing the
number of individuals who have not received a background check.'' The
comment did not expressly state the reasoning underlying its concern
with individuals who have bypassed background checks.
Response: The Departments response to comments about increased
incentives for human smuggling, above, address this comment's concern.
The Departments agree on the importance of background checks, as they
protect the safety and security of the United States. The Departments
disagree with the commenter's prediction, however. The Departments
expect that the rule will lead to fewer individuals illegally crossing
the border and thus lead to fewer people residing in the U.S. without a
background check.
e. Disparate Impact on the Poor and Those Who Cannot Travel by Air or
Sea
Comment: Three commenters argued that the IFR discriminates against
aliens who do not have the money to travel by air or sea (and thereby
avoid crossing the southern land border) or aliens who are forced to
flee suddenly and cannot wait for travel documents or a plane or boat
reservation. One of the commenters asserted that this demonstrates that
the Departments wish to eliminate the availability of asylum.
Response: The Departments recognize that the rule does not impact
aliens arriving by sea or air. However, as previously noted, this rule
is intended to deal specifically with the crisis at the southern land
border. If, as in the past, a crisis arises related to aliens arriving
by sea or air, the Departments can reevaluate the scope of the rule's
[[Page 82282]]
application.\41\ Cf. City of Las Vegas v. Lujan, 891 F.2d 927, 935
(D.C. Cir. 1989) (permitting agencies to exercise discretion in
addressing policy challenges, which could include an incremental
``step'' approach).
---------------------------------------------------------------------------
\41\ The United States, for example, has previously taken steps
expressly designed to address migration by sea. See Sale v. Haitian
Ctrs. Council, Inc., 509 U.S. 155, 160-61 (1993) (describing
President Reagan's suspension of entry for certain undocumented
aliens from the high seas).
---------------------------------------------------------------------------
The rule does not seek to penalize any asylum seeker based on
wealth or exigent circumstances. In the past, U.S. asylum policy has
impacted migrants traveling by land, air and sea, affecting individuals
using a variety of methods to travel to the United States without
regard to resources.\42\ As the Departments explained in the IFR, 84 FR
at 33829, the rule is aimed at addressing the crisis of aliens crossing
the southern land border at historically high rates, which has in turn
led to a historic backlog of asylum claims. The rule does not address
the northern border because the United States and Canada operate on a
shared framework of a cooperative agreement to process asylum claims.
See 8 CFR 208.30(e)(6). The rule targets those who cross over the
southern land border because, with the exception of Mexican nationals,
these individuals necessarily transit through a third country en route
to the United States.
---------------------------------------------------------------------------
\42\ See Haitian Ctrs. Council, Inc., 509 U.S. at 161, 163
(describing the effects of President Reagan's suspension).
---------------------------------------------------------------------------
The Departments believe this approach is reasonable because, as
explained previously, Mexico is a party to the relevant treaties and,
as explained in the Landau Memorandum, Mexico has taken adequate steps
to provide protection to asylum seekers. Thus, aliens passing through
Mexico will necessarily have a chance to seek protection. Individuals
travelling by air or sea, in contrast, may pass through no other
countries at all en route to the United States, and hence might lack
such an opportunity. Individuals traveling by air or sea may have
boarded a vessel from their home country and arrived directly in the
United States without a stopover, and thus without an opportunity to
apply for protection, in a third country. Thus, the Departments applied
this rule to the southern land border not to discriminate against or
harm people who lack the means to arrive by air or sea, but to ensure
that the rule applies to those aliens who will in fact have an
opportunity to seek protection in a third country.
f. Bad Motives--Racist Intent
Comment: Many comments in opposition to the IFR claimed that it was
motivated by racial animus, alleged that it has discriminatory effects,
or included a discussion of both. Most comments stated that the rule
reflected racist, xenophobic, or prejudiced attitudes, and other
comments argued that the IFR impermissibly discriminates on the basis
of race.
Commenters alleged, for example, that the IFR demonstrated
``blatant racism,'' ``naked xenophobia,'' and ``thinly veiled white
nationalism,'' and accordingly described the rule as ``immoral,''
``disgusting,'' ``abhorrent,'' and ``sicken[ing].'' Another comment
specifically claimed that the IFR's exclusive application to aliens at
the southern land border violated equal protection principles under the
Fifth Amendment by discriminating based on race, ethnicity, and
national origin, rendering the rule unconstitutional. That same comment
also claimed that the IFR would more heavily affect certain racial or
ethnic groups than others, which courts consider when examining
discriminatory purpose. Further, pointing to various statements and
policies from the Administration, the comment alleged racial animus and
a violation of the Constitution, leading the commenter to request the
withdrawal of the IFR.
Other commenters raised concerns with the alleged discriminatory
effect of the IFR, explaining that it would have a disproportionately
negative impact on people of color, particularly refugees from
countries in Central America and Africa, and inherently discriminate
against individuals who migrate through the southern land border,
thereby effectively denying protection to asylum seekers from El
Salvador, Guatemala, and Honduras.
Response: The rule is neither motivated by racial animus nor
promulgated with discriminatory intent. As explained in the IFR, 84 FR
at 33829, the Departments promulgated the IFR in light of the following
considerations. First, in order to reduce the immense strain on the
immigration system as a whole, the IFR sought to disincentivize aliens
with meritless asylum claims from seeking entry to the United States.
See id. at 33830. The IFR sought to reduce misuse of the system, since
aliens who travel through a country where protection is available, but
who did not seek such protection, may have meritless claims and be
misusing the system. Id. The IFR also sought to curb the practice of
human smuggling and its tragic effects and to bolster negotiations on
migration issues between the United States and foreign nations. Id.
Finally, the rule made a policy choice to direct relief to aliens who
are unable to receive protection elsewhere and aliens who are subject
to ``severe forms of trafficking in persons,'' defined at 8 CFR 214.11,
so that those aliens are able to obtain asylum relief in the United
States more quickly. Consequently, the rule bars from eligibility for
asylum those aliens who could have obtained protection in another
country because they passed through countries that are obligated to
provide protections to those facing persecution as party to the 1951
Refugee Convention or 1967 Protocol, but did not seek such protection.
Id.
None of these considerations is racially motivated, nor do these
considerations constitute discriminatory purposes. Although the rule
may impact, to a greater extent, groups specifically described in the
comments, application of the rule relates to the geographic location
and particular nature of the humanitarian crisis at the southern land
border. As indicated previously, if a crisis arises related to aliens
arriving by sea or air, the Departments can reconsider the scope of the
rule's application. The Departments do not promulgate the rule with a
discriminatory purpose.
9. Statutory Withholding of Removal and Protection Under the CAT
Regulations in Lieu of Asylum
Comment: Twenty-one organizations argued that it is not sufficient
that individuals affected by the IFR may still apply for statutory
withholding of removal or protection under the CAT regulations. These
groups raised concerns that applicants will be subject to the higher
burden of proof applicable to requests for withholding of removal under
the Act and withholding or deferral of removal under the CAT
regulations, and they expressed concern that applicants would lose
access to benefits available to asylees but not to recipients of
statutory withholding or protection under the CAT regulations.
Sixteen organizations noted that, to prevail on a claim for
statutory withholding or CAT protection, an applicant must meet a
higher burden of proof than that needed to prevail on a claim for
asylum--a ``clear probability'' of persecution or torture for
withholding and CAT claims versus a ``reasonable possibility'' of
persecution for asylum claims. For example, one commenter contended
that ``withholding of removal and relief under the Convention [A]gainst
Torture, which the rule clarifies will still be available for those
subject to this new asylum bar, are not
[[Page 82283]]
adequate substitutes for asylum,'' because ``withholding of removal
requires asylum-seekers to meet a more stringent standard of proof to
establish their eligibility for this relief.'' \43\ Another commenter
raised concerns that some aliens might be denied protection due to the
higher burden of proof, stating that ``[s]ubstituting the different
procedural standards of protection from removal or withholding of
removal for the existing procedural standards of asylum will not
produce equivalent or better results. Instead, this change would result
in the exclusion of many victims of serious persecution . . . from
having a meaningful opportunity to present their cases and seek safety
in the United States.''
---------------------------------------------------------------------------
\43\ Unlike asylum, withholding of removal is a form of
protection from removal, not relief.
---------------------------------------------------------------------------
Response: To the extent commenters predict that certain individuals
will wrongly be denied protection in the United States due to the rule,
the Departments disagree. The Departments believe that it is vital that
eligible persons be protected from removal to countries where they
would likely face persecution on account of a protected ground or
torture. The rule is consistent with that goal. Many commenters ignore
the possibility that some individuals will obtain protection in
countries other than the United States, and they ignore the benefits
this result could entail. For example, numerous commenters stated that
the long journey to the United States can inflict trauma on individuals
who are fleeing persecution or torture. To the extent the rule results
in individuals with meritorious claims obtaining protection sooner and
with a shorter journey, it should help mitigate such trauma. Finally,
it was Congress's deliberate decision to establish a requirement that
an alien show that it is more likely than not that his or her ``life or
freedom would be threatened'' for statutory withholding of removal, INA
241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A), which is a standard designed to
meet U.S. obligations under the Refugee Protocol.\44\ See Cardoza-
Fonseca, 480 U.S. at 440-41; Stevic, 467 U.S. at 428 (``[I]t seems
clear that Congress understood that refugee status alone did not
require withholding of deportation, but rather, the alien had to
satisfy the [`more likely than not'] standard under Sec. 243(h)[.]'').
Commenters should address Congress regarding a change to this statutory
standard.
---------------------------------------------------------------------------
\44\ Article 33.1 of the Refugee Convention states that ``[n]o
Contracting State shall expel or return (`refouler') a refugee in
any manner whatsoever to the frontiers or territories where his life
or freedom would be threatened on account of his race, religion,
nationality, membership or a particular social group or political
opinion.'' 19 U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176. In 1968, the
United States acceded to the Refugee Protocol, which bound parties
to comply with the substantive provisions of Articles 2 through 34
of the Convention with respect to refugees. See Cardoza-Fonseca, 480
U.S. at 429.
---------------------------------------------------------------------------
Comment: Numerous commenters noted that an asylee's spouse and
unmarried children under the age of 21 receive derivative relief, a
benefit missing from statutory withholding and CAT protection. One
commenter argued that this distinction ``means the difference between
being reunited with one's immediate family and living alone in a
foreign country,'' and means that ``new U.S. residents are deprived of
a key factor in their eventual social and economic integration into,
and independence in, the United States.'' Another commenter raised
concerns that this could lead to family separations: ``One of the most
damaging consequences of extending only withholding of removal or CAT
protection to refugees is the potential for permanent family separation
. . . . [A]n immigration judge may grant protection to a refugee parent
but order a child deported.''
Response: Those commenters who asserted that the rule will lead to
family separations rely on several assumptions. First, they assume that
individuals will choose to travel to the United States even when asylum
relief may be unavailable if they have not first sought protection in a
third country. Commenters offered no support for this assumption and
did not consider the potential for individuals to apply for, and
potentially receive, relief from a third country through which they
transit prior to reaching the United States. In fact, the number of
individuals applying for asylum in Mexico and other countries has
increased in recent years. See 84 FR 33839-40. Second, commenters
assumed that a third country will not grant individuals asylum and that
applicants will not choose to stay in a third country. If the third
country denies asylum, those individuals would not be subject to this
rule's bar.
Finally, Congress reached the policy determination in enacting the
INA and other immigration statutes over the years to decline to provide
derivative relief for family members in the withholding- and deferral-
of-removal contexts. Congress could update that policy if desired.
Notably, however, the lack of derivative relief for family members
outside of the asylum context does not impact the merits of the
underlying question whether a particular applicant warrants the
discretionary relief of asylum. See Thuraissigiam, 140 S. Ct. at 1965
n.4. Indeed, Congress knew that, by giving the Attorney General and the
Secretary authority to promulgate additional limitations on eligibility
for asylum, certain aliens other than those barred by statute would not
be eligible to receive the secondary benefits associated with asylum,
such as derivative asylum for family members. See R-S-C, 869 F.3d at
1187 (observing that the INA's ``delegation of authority means that
Congress was prepared to accept administrative dilution of the asylum
guarantee in Sec. 1158(a)(1)''). Congress has nonetheless declined to
provide such benefits to aliens eligible only for withholding or
deferral of removal, and commenters' concerns are accordingly best
addressed to Congress.
Comment: Seven commenters complained that recipients of statutory
withholding or CAT protection have no path to lawful permanent resident
status or citizenship. Three of these groups also noted that these
alternative forms of protection do not guarantee that individuals may
remain permanently in the United States. Instead, DHS may remove
recipients to another safe country. For example, one commenter
complained that this ``[l]imited and uncertain legal status further
complicates an already challenging but near-universal early goal of
treatment for torture and trauma survivors: restoring a sense of
safety.''
Response: Courts have rejected arguments that the Refugee Protocol,
as implemented, requires that every qualified refugee receive asylum.
For example, the Supreme Court has made clear that Article 34 of the
Refugee Convention, 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.
Congress may revisit its decision to decline to provide derivative
benefits to family members seeking protection other than asylum. But
the consequences of other forms of
[[Page 82284]]
protection such as withholding or deferral of removal does not impact
the underlying merits of an applicant's asylum claim.
Comment: Two groups raised concerns that individuals denied asylum
will lose access to numerous welfare and public assistance benefits.
Groups also stated that recipients of statutory withholding and CAT
protection face ``significant barriers to education and work'' compared
to asylees and, ``unlike asylum, refugees who secure withholding of
removal must apply annually for work authorization.'' Finally, two
groups raised concerns that recipients of withholding and CAT
protection do not have the same freedom to travel outside of the United
States as asylees.
Response: These comments ignore the ample public benefits available
to recipients of statutory withholding. Specifically, recipients of
statutory withholding are eligible for Supplemental Security Income
(``SSI''), the Supplemental Nutrition Assistance Program (``SNAP,''
more commonly known as food stamps), and Medicaid for the first seven
years after their applications are granted,\45\ and for Temporary
Assistance to Needy Families (``TANF'') during the first five years
after their applications are granted.\46\ Aliens other than asylees are
also eligible for other benefits, such as benefits administered by the
Office of Refugee Resettlement at the Department of Health and Human
Services. See, e.g., Office of Refugee Resettlement, What We Do (Dec.
5, 2019), https://www.acf.hhs.gov/orr/about/what-we-do (describing how
the office provides rehabilitative, social, and legal services to
certain aliens ``regardless of immigration status''). Further, the
provision of Federal benefits to certain individuals is a policy
determination within the purview of Congress, which made the deliberate
decision to limit some of these benefits to asylees. See Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, Public
Law 104-193, tit. IV, secs. 401-03, 431, Aug. 22, 1996, 110 Stat. 2105,
2261-67, 2274 (codified at 8 U.S.C. 1611-13, 1641).
---------------------------------------------------------------------------
\45\ 8 U.S.C. 1612(a)(1), (a)(2)(A)(iii), (a)(3) (SSI and SNAP);
8 U.S.C. 1612(b)(1), (b)(2)(A)(i)(III), (b)(3)(C) (Medicaid).
\46\ 8 U.S.C. 1612(b)(1), (b)(2)(A)(ii)(III), (b)(3)(A)-(B)
(TANF and Social Security Block Grant); 8 U.S.C. 1622(a), (b)(1)(C);
1621(c) (state public assistance).
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Finally, to the extent commenters raised concerns that recipients
of statutory withholding and CAT protection must apply annually for
work authorization and lack the freedom to travel outside of the United
States generally afforded to asylees, neither of these benefits is
mandated by U.S. law.
D. Public Comments on Regulatory Requirements
1. Administrative Procedure Act
a. Notice and Comment Requirements
Comment: A significant number of comments stated that the
Departments violated the APA because the Departments did not provide
the public with notice and an opportunity to comment on the IFR before
its implementation and because the rule was not published 30 days
before its effective date. See generally 5 U.S.C. 553(b)-(d).
Commenters asserted that, without notice and comment, they were unable
to provide evidence that the rule is unlawful and that it will have
numerous harmful effects.
Commenters stated that the Departments' reliance on the good cause
exception and foreign affairs exemption to notice-and-comment
rulemaking was improper. See 84 FR at 33840-42. Discussing the good
cause exception, the commenters asserted that the Departments did not
provide sufficient evidence that notice-and-comment rulemaking would
result in a surge of asylum applicants. Regarding the foreign affairs
exemption, the commenters stated that the Departments did not provide
evidence that notice and comment rulemaking would negatively affect
negotiations with the governments of Mexico, Guatemala, Honduras, or El
Salvador. The commenters stated that, in fact, the IFR would have the
opposite effect. According to one commenter, ``[s]trong-arming other
nations, which are unprepared to deal with massive influxes of asylum
seekers and who have institutional challenges of their own, into
accepting returned asylum seekers will harm the United States'
diplomatic relationships with those countries, and contribute to
further destabilization of the region.''
Response: As explained above, the IFR complied with the APA's
notice-and-comment requirements, as recently considered by the Supreme
Court in Little Sisters, 140 S. Ct. 2367. The Court held that an IFR
followed by a final rule that satisfies the APA's notice and comment
requirements, 5 U.S.C. 553(b)-(d), is procedurally valid. See id. The
Departments' IFR complied with APA requirements, including providing
notice and an opportunity for the public to comment. Subsequently,
given this final rule, the rulemaking is procedurally valid, despite
the fact that an NPRM was not issued and that reviewing courts have
held that the Departments' invocation of the good cause and foreign
affairs exceptions to notice and comment was improper.\47\ Compare CAIR
I, 2020 WL 3542481, at *13-19 (holding that the Departments could not
rely on the exception and exemption), with Little Sisters, 140 S. Ct.
at 2386 n.14 (``Because we conclude that the IFRs' request for comment
satisfies the APA's rulemaking requirements, we need not reach
respondents' additional argument that the Departments lacked good cause
to promulgate the 2017 IFRs.'').
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\47\ The Departments acknowledge that the Supreme Court in
Little Sisters did suggest that publishing a final rule after an IFR
might not satisfy the APA if the IFR ``failed to air the relevant
issues with sufficient detail for [the public] to understand the
Departments' position.'' 140 S. Ct. at 2384-85. The Departments do
not believe that the circumstances of this rule's promulgation
indicate such a failed understanding. Many commenters may have
disagreed with the Departments' positions regarding the IFR, but the
commenters nevertheless understood the substance of the Departments'
position. Moreover, the fact that the Departments have now
considered over 1,800 comments associated with the IFR--many of them
detailed comments from organizations with a significant interest in
asylum eligibility--before finalizing the rule suggests that there
has been no prejudice in relying on the good cause exception and the
foreign affairs exemption to publish the IFR without first providing
for a comment period. See id. at 2385 (recognizing that the rule of
prejudicial error applies to claims under the APA).
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b. Arbitrary and Capricious
Comment: Commenters stated that the Departments' determinations
underlying the IFR are arbitrary and capricious because the Departments
failed to examine relevant data, adequately explain the policy change,
or consider the significant impacts of the rule on asylum seekers and
the community at large. Commenters argued that the Departments did not
provide an adequate explanation for the assertion that an alien's
failure to seek protection in a third country relates to the
probability that an asylum claim may be meritless. Commenters pointed
to Federal appellate cases that held that applicants do not need to
apply in the first country where asylum is available and that asylum
applicants can have secondary motives for choosing to come to the
United States that do not affect their asylum eligibility, such as
relatives or friends in the United States who can help them as they
pursue their claims. Further, the commenters asserted that the rule
does not take into account the many reasons that asylum seekers might
not apply for asylum in third countries such as Mexico or Guatemala,
which, according to the commenters, feature dangerous conditions and
lack asylum
[[Page 82285]]
infrastructure to process a significant amount of claims.
Commenters also criticized the rule's reliance on Matter of Pula,
19 I&N Dec. 467. Commenters noted that although the BIA stated that an
alien's transit through third countries may be a negative discretionary
factor depending on the factual circumstances, the BIA also has
explained that the danger of persecution in the applicant's home
country ``should generally outweigh all but the most egregious adverse
factors.'' Matter of Pula, 19 I&N Dec. at 474.
Likewise, some commenters asserted that the IFR's claim to advance
humanitarian objectives is pre-textual because there is no plausible
set of circumstances under which a rule prohibiting the vast majority
of asylum seekers from obtaining asylum will serve the humanitarian
purposes of asylum. In particular, some commenters asserted that,
because transiting through a third country does not establish that an
asylum claim is meritless, the rule will prohibit otherwise successful
asylum claims.
Commenters stated that the IFR did not provide evidence of how it
will lower human smuggling and trafficking by reducing incentives, nor
how it will affect the dire conditions that currently exist at the
border. Further, the commenters stated that the IFR inadequately
explained how it will reduce the administrative burden in immigration
courts, since, under the rule, the courts will still adjudicate claims
for withholding of removal and protection under the CAT regulations, as
well as appeals of these asylum denials. In addition, commenters stated
that the need to reduce the burden on immigration courts by
implementing the IFR is exaggerated because DOJ has added a significant
number of immigration judges and the largest increase in pending cases
has come from the Attorney General's decision that immigration judges
did not have the authority to grant administrative closure. See Matter
of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). Commenters also stated that
the IFR does not cite any evidence supporting the contention that many
asylum seekers are economic migrants seeking to exploit U.S. asylum
law.
Next, commenters stated that the Departments provided misleading or
inaccurate statistics in the IFR, asserting that denied asylum claims
are not necessarily meritless; that the large majority of applicants
appear for their hearings, particularly when represented by counsel;
and that those affected by the IFR are granted asylum in ratios similar
to asylum applicants as a whole. Other commenters stated that the
Departments conflated meritless applications with denied applications,
for which factors such as access to counsel and the particular
immigration judge presiding over the case have major effects on the
outcome.
Response: The Departments believe that the determinations
underlying the IFR are well-founded. Arbitrary and capricious review is
limited and ``highly deferential, presuming the agency action to be
valid. . . .'' Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010),
citing Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (internal
quotation marks omitted). It is ``reasonable for the [agency] to rely
on its experience'' to arrive at its conclusions, even if those
conclusions are not supported with ``empirical research.'' Id. at 1069.
The agency need only articulate ``a rational connection between the
facts found and the choice made.'' Motor Vehicle Mfrs., 463 U.S. at 43
(1983), quoting Burlington Truck Lines, Inc. v. United States, 371 U.S.
1568, 168 (1962).
Considering the unprecedented increase of asylum applications and
the backlog of pending cases, the Departments concluded that the IFR
was necessary and well-founded. See EOIR, Adjudication Statistics:
Total Asylum Applications (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1106366/download (demonstrating the increased receipt of
asylum applications between Fiscal Years 2008 and 2019); see also EOIR,
Adjudication Statistics: Pending Cases (Oct. 7, 2019), https://www.justice.gov/eoir/page/file/1060836/download (demonstrating the
increased pending caseload between Fiscal Years 2008 and 2019).
Further, the period between the issuance of Matter of Avetisyan, 25 I&N
Dec. 688 (BIA 2012), which Matter of Castro-Tum overturned, and the
issuance of Matter of Castro-Tum coincided with a 127 percent increase
in pending cases, despite relatively low numbers of new case receipts
in several of the intervening years. Compare EOIR, Active and Inactive
Pending Cases Between February 1, 2012 and May 17, 2018 (Jan. 30,
2019), https://www.justice.gov/eoir/page/file/1296536/download, with
EOIR, New Cases and Total Completions (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/1139176/download. In contrast, more
recent increases to the pending caseload and the increased burden on
the immigration courts have been driven by record numbers of new cases
filed; this increase, is driven by continued influxes of illegal
immigration, which is one of the primary issues the rule attempts to
combat. See EOIR, Pending Cases, New Cases, and Total Completions (Oct.
13, 2020), https://www.justice.gov/eoir/page/file/1242166/download. In
short, higher levels of illegal immigration--and not any decision by
the Attorney General--have increased the burden on immigration courts,
and it is appropriate for the Departments to consider that burden in
promulgating this rule.
Although commenters expressed various opinions regarding factors
that may reduce or exacerbate the burden on immigration courts, the
Departments ultimately believe that this final rule, together with
other regulatory and policy efforts, best addresses the dramatic
increase in asylum applications and the pending caseload currently
experienced by the immigration courts.
The Departments promulgated the IFR based on several
considerations, including: (1) The need to reduce the incentive for
aliens with meritless or non-urgent asylum claims to seek entry to the
United States, thereby relieving stress on immigration enforcement and
adjudicatory authorities; (2) the policy decision to direct relief to
individuals who are unable to obtain protection from persecution
elsewhere and individuals who are victims of a severe form of
trafficking in persons, ensuring that these individuals can obtain
relief more quickly; (3) the need to curtail human smuggling; (4) a
desire to strengthen the United States' negotiating power regarding
migration issues in general and regarding related measures employed to
control the flow of aliens in the United States; and (5) the urgent
need to address the humanitarian and security crisis along the southern
land border between the United States and Mexico. 84 FR at 33831,
33840, 33842.
The IFR is reasonably related to each of these considerations and
is, therefore, not arbitrary and capricious.\48\ As the
[[Page 82286]]
IFR explains, aliens with non-meritorious or non-urgent asylum claims
will have less incentive to seek entry to the United States. Id. at
33840. Thus, there will be less incentive to rely on human smuggling if
aliens cannot take advantage of lengthy delays in adjudicating their
asylum claims in order to reside and work legally in the United States.
Id. Fewer incentives to seek entry illegally will relieve stress on the
adjudicatory authorities of both DHS and DOJ and on border enforcement.
See 84 FR at 33831, 33840-41. Likewise, by ensuring that adjudicators
are able to focus on the claims of aliens who have not been able to
obtain relief in a third country, the rule focuses on the class of
aliens who have no other country to turn to, making it easier for those
adjudicators to fulfill the humanitarian nature of asylum relief. Id.;
accord Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011)
(explaining that the ``core regulatory purpose of asylum . . . is not
to provide [aliens] with a broader choice of safe homelands, but
rather, to protect refugees with nowhere else to turn'' (internal
quotation marks omitted)).
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\48\ The Departments note that the Ninth Circuit determined the
rule to be arbitrary and capricious for three reasons. First, the
court credited assertions from plaintiffs over contrary assertions
from the Departments that aliens in Mexico have no safe options for
asylum. See E. Bay Sanctuary Covenant, 964 F.3d at 849-50. Second,
the court found that the rule assumes, without justification, that
aliens who wait to apply for asylum in the United States after
traveling through intervening countries where they could have
obtained protection are not credible. Id. at 852. Third, the court
held that the rule failed to exempt UAC, though such exemption is
not required by statute. Id. at 853-54. The Departments disagree
with the Ninth Circuit on all three counts and understand the rule
to be consistent with the provisions of section 208 of the Act, 8
U.S.C. 1158. Moreover, the court appears to have misunderstood the
rule to some extent, as nothing in the rule relates to the
credibility of an alien's claim; instead, the rule takes the
logical--and uncontroverted--position that an individual who is in
genuine fear for his or her well-being will take refuge at the first
available opportunity and that a failure to do so necessarily raises
questions about the persuasiveness of the claim. Just as a criminal
defendant's subjective belief that an alternative to committing a
crime is unavailable or undesirable will not support a necessity
defense, United States v. Perdomo-Espana, 522 F.3d 983, 988 (9th
Cir. 2008), an alien's subjective belief that refuge in another
country is unavailable or less desirable than settling in the United
States does not support the persuasiveness of that alien's asylum
claim. Similarly, the Department disagrees with the court's
conclusion that Mexico is not a safe country for any alien--as
contradicted by the rising number of asylum claims filed in that
country in recent years, which would be profoundly and inexplicably
irrational behavior if applicants did not perceive it to be a
potential safe country--or that pointing to crime in certain parts
of Mexico means that the country as a whole is unsafe, any more than
local crime rates or individual reports of crime in the United
States mean that the entire United States is unsafe. Cf. Cece v.
Holder, 733 F.3d 662, 679 (7th Cir. 2013) (Easterbrook, J.
dissenting) (``Crime may be rampant in Albania, but it is common in
the United States too. People are forced into prostitution in
Chicago . . . Must Canada grant asylum to young women who fear
prostitution in the United States, or who dread the risk of violence
in or near public-housing projects?''). Further, the Departments
disagree that every regulation restricting asylum eligibility must
necessarily exempt UAC solely because they are UAC and even though
such exemption is not required or contemplated by statute.
Nevertheless, to the extent that the Ninth Circuit disagrees with
the Departments' position on this matter, the Departments have
provided additional reasoning and evidence in this rulemaking to
address such concerns. For example, the Landau Memorandum
extensively discusses how conditions in Mexico are adequate to
ensure that the country is in fact a safe option for asylum seekers.
Further, the fact that Mexico is indeed a safe option helps
substantiate the Departments' conclusion that those aliens who
nonetheless decline to apply for asylum in Mexico are likely
travelling to the U.S. for reasons unrelated to a legitimate fear of
persecution. See E. Bay Sanctuary Covenant, 964 F.3d at 859 (Miller,
J., concurring in part) (observing that the ``key factual premise''
for the Departments' conclusion is that Mexico is safe enough ``that
legitimate asylum seekers can reasonably be expected to apply for
protection there''). Finally, the Departments have discussed
elsewhere in this final rule their consideration of the unique
issues or special circumstances raised by UAC. They also note that
Mexico has taken steps to ensure safe treatment of migrant children.
See, e.g., U.N. Human Rights Council, Universal Periodic Review 3rd
Cycle, 31st Session: Mexico, National Report 10-11 (2018), https://www.ohchr.org/EN/HRBodies/UPR/Pages/MXindex.aspx (last visited Dec.
10, 2020) (describing Mexico's adoption of protocols to care for
``unaccompanied or separated child and adolescent migrants''). The
Departments have accordingly concluded that encouraging UAC to apply
for asylum in Mexico through the promulgation of this rule will not
jeopardize the wellbeing of UAC in a way that would warrant
exempting UAC from the rule's scope.
---------------------------------------------------------------------------
Further, by limiting eligibility for asylum to aliens who transit
Mexico and Central America without first seeking relief in one of the
countries transited, the U.S. government is in a better position to
negotiate a formal and lasting resolution to the humanitarian and
security crisis along the southern land border with those countries. 84
FR at 33831, 33842. This shifts the responsibility to consider such
claims to other countries within the region that are able to provide
fair adjudications of requests for asylum. For example, Mexico's status
as a party to international agreements regarding refugee claims and its
efforts to build its asylum system and robust procedures regarding such
relief; and, as discussed above, the statistics regarding the influx of
claims in that country, all support the conclusion that asylum in
Mexico is a feasible alternative to relief in the United States. See
id. at 33839; see also, e.g., UNHCR, Universal Periodic Review 3rd
Cycle, 31st Session: Mexico, National Report 10-12 (2018), https://www.ohchr.org/EN/HRBodies/UPR/Pages/MXindex.aspx; Landau Memorandum at
2-5. And, as previously explained, the presence of dangerous conditions
in some parts of a country does not necessarily render the entire
country unsafe and does not necessarily indicate the presence of the
kind of persecution that asylum relief was designed to address.
Concentrated episodes of violence do not mean a country, as a whole, is
unsafe for individuals fleeing persecution. Regardless of living
conditions, the United States is not required to grant asylum to
applicants with claims that are not premised on a legitimate fear of
persecution.
For example, in a large country like Mexico, which span nearly
760,000 square miles and has a population of approximately 130 million
people, security conditions may vary widely both across and within the
32 Mexican states. U.S. Dep't of State, U.S. Embassy and Consulates in
Mexico, Memorandum from Christopher Landau, U.S. Ambassador to Mexico,
on Mexico's Refugee System (Aug. 31, 2020). Reports of violence often
refer to localized violence and ``do not reflect conditions across the
county as a whole.'' Id. Nearly all applications for protection in
Mexico are presented in either Chiapas, Mexico City, Veracruz, Tabasco,
or Nuevo Leon, which ``generally rank well on security issues based on
Mexican government crime statistics,'' and none of which are the
subject of a U.S. Department of State ``Level 4'' (Do Not Travel)
advisory. Id. Furthermore, ``[t]he United States Mission in Mexico is
not aware of any pattern of violence targeted at potential refugees
awaiting adjudication of their applications.'' Id.
The Ambassador specified that discussions about conditions in
Mexico often conflate the perils that refugees might face traversing
across dangerous parts of Mexico en route to the United States with the
ability to seek protection in a safe place in Mexico. Id. For example,
Chiapas, Mexico's southernmost state along the border with Guatemala,
``routinely ranks among the safest Mexican States by all metrics.'' Id.
Notably, in Mexico, refugees have the right to seek protection in any
state in which they are present. Id.
In response to commenters' concerns related to Federal appellate
cases holding that applicants need not apply in the first country where
asylum is available and that asylum applicants can have secondary
motives for choosing to come to the United States that do not affect
their asylum eligibility,\49\ the Departments note that those cases
reflect the regulatory framework for the ACA and firm resettlement bars
(INA 208(a)(2) and (b)(2)(A)(vi), 8 U.S.C. 1158(a)(2) and
(b)(2)(A)(vi); 8 CFR 208.15 and 208.30(e)(6)-(7), 1208.15 and
1208.30(e)(6)-(7)) prior to the IFR, which did not include such a
requirement. This rule modifies the regulatory framework pursuant to
authority granted by Congress, so there is no tension between those
cases and this rule, and removes references to
[[Page 82287]]
those amendments made in the Intervening Joint Final Rule.
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\49\ See, e.g., Tandia v. Gonzales, 437 F.3d 245, 249 (2d Cir.
2006) (``[The applicant's] stay in France would therefore be
relevant only to a finding that he had `firmly resettled' in a third
country before arriving in the United States.''); Mamouzian v.
Ashcroft, 390 F.3d 1129, 1138 & n.7 (9th Cir. 2004) (consideration
of time in a third country is relevant only in determining whether
alien was firmly resettled); Andriasian, 180 F.3d at 1047 (similar).
---------------------------------------------------------------------------
In addition to the policies articulated above, the rule advances
several other policy goals consistent with the asylum statute,
including focusing relief on applicants who have nowhere else to turn
and encouraging other countries to provide protection. The rule relies
on the judgment that a ``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.'' 84 FR at 33839. The Departments believe
these determinations are reasonable because immigration law has long
supported factoring into the denial of asylum the fact that the
applicant could have sought, but failed to seek, protection in a third
country while in transit to the United States. See Matter of Pula, 19
I&N Dec. at 473-74; see also Elzour v. Ashcroft, 378 F.3d 1143, 1152
(10th Cir. 2004) (``The firm resettlement bar looks to whether
permanent refuge was offered, not whether permanent status was
ultimately obtained. Refugees may not flee to the United States and
receive asylum after having unilaterally rejected safe haven in other
nations in which they established significant ties along the way.'')
(emphasis in original); Haloci v. Att'y Gen., 266 F. App'x 145, 147 (3d
Cir. 2008) (``In addition, the IJ found that Haloci's failure to seek
asylum in Turkey or Holland, along with his admission that he had never
considered any final destination other than the United States, further
undercut his alleged fear. The record supports the IJ's findings.'');
Farbakhsh v. INS, 20 F.3d 877, 882 (8th Cir. 1994) (``We also hold that
the Board did not abuse its discretion in denying petitioner's
application for asylum. Petitioner passed through several countries
(Turkey, Italy, Spain, Portugal, Canada) en route to the United States;
in Spain and Canada orderly refugee procedures were in fact available
to him. He had applied for refugee status in Spain, and Canada had
granted him temporary resident status and one year to apply for
asylum.''). 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. Further, 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 Act 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).\50\ This rule uses that
authority to establish one of the factors specified as relevant in Pula
as the foundation of a new asylum bar. This rule's focus on 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.
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\50\ To this end, the Departments published an NPRM that, inter
alia, proposed establishing additional factors for consideration
when determining whether an alien merits the relief of asylum as a
matter of discretion, 85 FR 36264, which has recently been
finalized, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, signed on December 2,
2020.
---------------------------------------------------------------------------
Comment: Several commenters asserted that the IFR will not
alleviate the strain on the Nation's immigration system. Some
commentators argued that immigration judges will have more work as a
result of the rule because they will have to inquire whether the
applicant satisfied the rule. Others predicted that immigration judges
will adjudicate the same number of cases because individuals barred
from asylum eligibility will instead apply for statutory withholding or
protection under the CAT regulations. One commenter opined that the
backlog of immigration cases is caused by the Administration's own
policies, such as ``zero tolerance,'' and the solution is to less
vigorously enforce immigration laws.
Response: The Departments disagree with these predictions. The
commenters assume that individuals will not apply for asylum in other
countries. Many individuals may apply for, and may receive, asylum
elsewhere, which would reduce the burden on the immigration system.
Also, if the rule deters meritless or frivolous applications, it will
reduce the burden on the immigration system.
In addition, the interim final rule would reduce the burden on the
immigration system even if every alien who would have applied for
asylum under the regulations in place prior to the IFR continues to
seek statutory withholding of removal or protection under the CAT
regulations under the provisions of the IFR. Following publication of
the Intervening Joint Final Rule, the claims of those individuals who
are subject to the third-country-transit bar would initially be
reviewed to determine whether the individuals have a reasonable
possibility of persecution or torture, rather than a credible fear. 8
CFR 208.30(e)(5)(iii). Reasonable-fear review is a higher threshold
than the ``credible fear'' standard that would have previously applied.
Compare 8 CFR 208.30(e)(2) (providing that an alien has a credible fear
if the alien establishes a ``significant possibility'' of persecution
or torture), with 8 CFR 208.31(c) (providing that an alien has a
reasonable fear if the alien establishes a ``reasonable possibility''
of persecution or torture). As discussed in the Intervening Joint Final
Rule, the Departments believe that fewer non-meritorious claims will be
referred to an immigration judge for adjudication due to the higher
standard applicable in reasonable-fear reviews, increasing efficiencies
both for the immigration courts and for aliens who are eligible for
protection. Notably, however, this final rule does not include those
changes due to the Intervening Joint Final Rule.
The Departments disagree with suggestions to stop or to reduce
enforcement of immigration laws as a means of reducing the strain on
the Nation's immigration system. The solution is not to ignore the rule
of law but to find ways to promote compliance with the law and to
increase the efficiency of the Nation's immigration system.
Comment: One group asserted that the rule seeks to deter asylum
claims, and that this is not a legally permissible basis for a rule.
Response: The Departments encourage those facing persecution or
torture to seek protection. The rule does not seek to deter any such
individual from applying for or receiving protection--in fact, it
encourages them to seek protection at the first available opportunity.
The rule seeks to deter those who would abuse the immigration system by
filing meritless, frivolous, or non-urgent asylum claims as a means to
obtain immigration benefits to which they would not otherwise be
entitled.
Comment: Some commenters challenged the Departments' statistics
indicating that many asylum applicants do not appear for their
immigration court hearings and that immigration judges deny most asylum
claims.
[[Page 82288]]
Response: The Departments reiterate the statistics and analysis
provided in the IFR. See id. Some comments may be based on erroneous
readings of the data. For example, one commenter cited the DHS Annual
Flow Report on Refugees and Asylees from 2017 as showing that 92
percent of asylum applicants obtain lawful permanent resident status.
DHS, Annual Flow Report: Refugees and Asylees: 2017 (Mar. 2019),
https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2017.pdf. The report, however, concerns adjustment
rates for individuals who are already granted affirmative asylum, not
applicants for asylum. Id. at 9.
2. Executive Order 13132
Comment: One commenter stated that the IFR will harm the States
because: (1) The States' economies are aided by asylees and asylum
seekers, (2) harm caused to asylum seekers will result in increased
demand on State health programs and resources, (3) organizations in the
States will have to divert their resources, and (4) the IFR harms
States' interest in family unity. As a result, the commenter stated,
DHS and DOJ failed to analyze these impacts or appropriately consult
with the States prior to the rule's implementation.
Response: The rule does not have federalism implications because it
does not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. DHS and DOJ do not purport to directly regulate who may
receive State benefits or how the States or organizations within the
States allocate resources for the public. To the extent the commenter
alleges that the rule will have a financial impact on the States, such
assertion is purely speculative. Finally, any choice by the States to
increase public assistance payments to aliens affected by the rule is a
policy choice by States, not a result compelled by the rule.
3. Paperwork Reduction Act
Comment: One commenter stated that the IFR will impact the number
of respondents who fill out the Form I-589, Application for Asylum and
for Withholding of Removal, annually and that, as a result, DHS and DOJ
should clarify the status of the I-589 information collection under the
Paperwork Reduction Act. The commenter asserted that the rule will
likely decrease the number of respondents who submit the I-589,
although the commenter also noted that recent increases in the volume
of aliens seeking asylum at the border may in fact increase the number
of respondents who submit an I-589.
Response: As stated in the IFR, the rule does not propose any new,
or revisions to existing, ``collections 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. 84 FR at 33843.
Further, the Departments find that it is not possible to estimate
the impact of the rule on the volume of respondents who submit a Form
I-589 annually. The Form I-589 is used jointly by DHS and DOJ to
adjudicate applications for asylum, statutory withholding of removal,
and protection under the CAT regulations. While fewer aliens may be
eligible for asylum following a credible-fear finding due to the rule,
aliens subject to the bar may still apply for withholding of removal
under section 241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), or withholding
or deferral of removal under the CAT regulations, if an asylum officer
or immigration judge finds that they have a reasonable fear of
persecution or torture. Such aliens would still submit the same Form I-
589 that they would have submitted for the purpose of applying for
asylum before the enactment of the rule. In addition, as explained in
the IFR, the United States has experienced a significant increase in
the number of aliens encountered at the southern land border in recent
years, which results in a larger total pool of possible asylum
applicants. 84 FR at 33838. Compare CBP, Southwest Border Migration
FY2019 (Nov. 14, 2019), https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2019 (reporting 851,508 apprehensions at the southern land
border for Fiscal Year 2019), with CBP, Southwest Border Migration
FY2017 (Dec. 15, 2017), https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017 (reporting the following total apprehensions along the
southern land border: 479,371 in Fiscal Year 2014; 331,333 in Fiscal
Year 2015; 408,870 in Fiscal Year 2016; and 303,916 in Fiscal Year
2017).
The Departments have not proposed any further amendments to the
information collection to the IFR as reviewed under Office of
Management and Budget (``OMB'') Control Number 1615-0067. See OMB,
Office of Info. & Regulatory Affairs, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201905-1615-002.
IV. Regulatory Review Requirements
A. Administrative Procedure Act
This final rule is being published with a 30-day delay in the
effective date as required by the APA. 5 U.S.C. 553(d).
B. Regulatory Flexibility Act
The Departments have reviewed this final rule in accordance with
the Regulatory Flexibility Act (``RFA'') (5 U.S.C. 601 et seq.) and
have determined that this rule will not have a significant economic
impact on a substantial number of small entities. The rule will not
regulate ``small entities'' as that term is defined in 5 U.S.C. 601(6).
Only individuals, rather than entities, are eligible for asylum, and
only individuals are eligible for asylum or are otherwise placed in
immigration proceedings.
Further, although some organizational commenters (whose
organizations might qualify as ``small entities'') asserted that the
rule would affect their operations, an RFA analysis is not required
when a rule has only incidental effects on small entities, rather than
directly regulating those entities. See, e.g., Mid-Tex Elec. Co-op,
Inc. v. FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985) (``[W]e conclude
that an agency may properly certify that no regulatory flexibility
analysis is necessary when it determines that the rule will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule. . . . Congress did
not intend to require that every agency consider every indirect effect
that any regulation might have on small businesses in any stratum of
the national economy.'').\51\ Neither the IFR nor this final rule
regulates immigration-related organizations in any way; those
organizations can continue to accept clients, provide legal advice, and
expend their resources however they see fit. The rule neither
[[Page 82289]]
compels them nor entitles them to undertake any particular course of
conduct. Thus, because this rule does not regulate small entities
themselves, the Departments reaffirm their conclusion that no RFA
analysis is necessary.
---------------------------------------------------------------------------
\51\ See also Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855,
869 (D.C. Cir. 2001) (``The statute requires that the agency conduct
the relevant analysis or certify `no impact' for those small
businesses that are `subject to' the regulation, that is, those to
which the regulation `will apply'. . . . The rule will doubtless
have economic impacts in many sectors of the economy. But to require
an agency to assess the impact on all of the nation's small
businesses possibly affected by a rule would be to convert every
rulemaking process into a massive exercise in economic modeling, an
approach we have already rejected.'' (citing Mid-Tex, 773 F.2d 327
at 343)); White Eagle Co-op Ass'n v. Conner, 553 F.3d 467, 480 (7th
Cir. 2009) (``[S]mall entities directly regulated by the proposed
[rulemaking]--whose conduct is circumscribed or mandated--may bring
a challenge to the RFA analysis or certification of an agency. . . .
However, when the regulation reaches small entities only indirectly,
they do not have standing to bring an RFA challenge.'').
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C. Unfunded Mandates Reform Act of 1995
This 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 (adjusted annually for inflation) in any one year,
and it will not significantly or uniquely affect small governments. See
2 U.S.C. 1532. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
D. Congressional Review Act
This 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''; \52\ a
``major increase in costs or prices''; or ``significant adverse effects
on competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.'' Id.
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\52\ Unlike the Unfunded Mandates Reform Act of 1995, see 2
U.S.C. 1532(a), the Congressional Review Act does not specifically
require adjustments for inflation, see 5 U.S.C. 804.
---------------------------------------------------------------------------
E. Executive Order 12866, Executive Order 13563, and Executive Order
13771 (Regulatory Planning and Review)
This final rule is not subject to Executive Order 12866 because OMB
determined that it implicates a foreign affairs function of the United
States related to ongoing bilateral and multilateral discussions with
the potential to impact a set of specified international relationships
and agreements. For similar reasons, this rule is not a ``regulation''
as defined in Executive Order 13771, and the rule is therefore not
subject to that order.
F. Executive Order 13132 (Federalism)
This final 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, 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 final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This final 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.
I. Signature
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
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 interim
final rule's amendments to 8 CFR 208.13 as published July 16, 2019, at
84 FR 33829 are adopted as final with the following changes:
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 Pub. L. 110-229; 8 CFR part 2.
0
2. In Sec. 208.13, revise paragraphs (c)(4)(i) and (iii) to read as
follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(4) * * *
(i) The alien demonstrates that he or she applied for protection
from persecution 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.
* * * * *
(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 or the 1967 Protocol relating to the Status of
Refugees.
* * * * *
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in the preamble, and by the
authority vested in the Director, Executive Office for Immigration
Review, by the Attorney General Order Number 4910-2020, the interim
final rule's amendments to section 1208.13 as published July 16, 2019,
at 84 FR 33829 are adopted as final with the following changes:
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
3. 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 Pub. L. 110-229.
0
4. In Sec. 1208.13, revise paragraphs (c)(4), (c)(4)(i), and
(c)(4)(iii) to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(4) Additional limitation on eligibility for asylum.
Notwithstanding the provisions of Sec. 1208.15, 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 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
[[Page 82290]]
judgment denying the alien protection in such country.
* * * * *
(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 or the 1967 Protocol relating to the Status of
Refugees.
* * * * *
Approved:
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S.
Department of Homeland Security.
Approved:
James R. McHenry III,
Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2020-27856 Filed 12-16-20; 8:45 am]
BILLING CODE 4410-30-P; 9111-97-P
