Asylum Eligibility and Procedural Modifications

CourtExecutive Office For Immigration Review
Citation85 FR 82260
Record Number2020-27856
Published date17 December 2020
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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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'').
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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.'').
                ---------------------------------------------------------------------------
                [[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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.'').
                ---------------------------------------------------------------------------
                 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'').
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \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.'').
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \33\ Comments regarding unaccompanied alien children are
                discussed further in section III.C.7.b, below.
                ---------------------------------------------------------------------------
                 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).
                ---------------------------------------------------------------------------
                 \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))).
                ---------------------------------------------------------------------------
                 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).
                ---------------------------------------------------------------------------
                 \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.]).
                ---------------------------------------------------------------------------
                 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).
                ---------------------------------------------------------------------------
                 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).
                ---------------------------------------------------------------------------
                 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.'').
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                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)).
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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.'').
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \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
                

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