Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act

CourtExecutive Office For Immigration Review,U.s. Citizenship And Immigration Services
Citation84 FR 63994
Record Number2019-25137
SectionRules and Regulations
Published date19 November 2019
Federal Register, Volume 84 Issue 223 (Tuesday, November 19, 2019)
[Federal Register Volume 84, Number 223 (Tuesday, November 19, 2019)]
                [Rules and Regulations]
                [Pages 63994-64011]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-25137]
                [[Page 63993]]
                Vol. 84
                Tuesday,
                No. 223
                November 19, 2019
                Part IIIDepartment of Homeland Security-----------------------------------------------------------------------U.S. Citizenship and Immigration Services-----------------------------------------------------------------------8 CFR Part 208Department of Justice-----------------------------------------------------------------------Executive Office for Immigration Review-----------------------------------------------------------------------
                8 CFR Parts 1003, 1208 and 1240Implementing Bilateral and Multilateral Asylum Cooperative Agreements
                Under the Immigration and Nationality Act; Interim Final Rule
                Federal Register / Vol. 84 , No. 223 / Tuesday, November 19, 2019 /
                Rules and Regulations
                [[Page 63994]]
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                DEPARTMENT OF HOMELAND SECURITY
                U.S. Citizenship and Immigration Services
                8 CFR Part 208
                [USCIS Docket No. USCIS-2019-0021]
                RIN 1615-AC49
                DEPARTMENT OF JUSTICE
                Executive Office for Immigration Review
                8 CFR Parts 1003, 1208, and 1240
                [EOIR Docket No. 19-0021; A.G. Order No. 4581-2019]
                RIN 1125-AA98
                Implementing Bilateral and Multilateral Asylum Cooperative
                Agreements Under the Immigration and Nationality Act
                AGENCY: Executive Office for Immigration Review, Department of Justice;
                U.S. Citizenship and Immigration Services, Department of Homeland
                Security.
                ACTION: Interim final rule; request for comment.
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                SUMMARY: The Department of Justice (``DOJ'') and the Department of
                Homeland Security (``DHS'') (collectively, ``the Departments'') are
                adopting an interim final rule (``IFR'' or ``rule'') to modify existing
                regulations to provide for the implementation of Asylum Cooperative
                Agreements (``ACAs'') that the United States enters into pursuant to
                section 208(a)(2)(A) of the Immigration and Nationality Act (``INA'' or
                ``Act''). Because the underlying purpose of section 208(a)(2)(A) is to
                provide asylum seekers with access to only one of the ACA signatory
                countries' protection systems, this rule adopts a modified approach to
                the expedited removal (``ER'') and section 240 processes in the form of
                a threshold screening as to which country will consider the alien's
                claim. This rule will apply to all ACAs in force between the United
                States and countries other than Canada, including bilateral ACAs
                recently entered into with El Salvador, Guatemala, and Honduras in an
                effort to share the distribution of hundreds of thousands of asylum
                claims. The rule will apply only prospectively to aliens who arrive at
                a U.S. port of entry, or enter or attempt to enter the United States
                between ports of entry, on or after the effective date of the rule.
                DATES:
                 Effective date: This rule is effective November 19, 2019.
                 Submission of public comments: Comments must be submitted on or
                before December 19, 2019.
                ADDRESSES: You may submit comments, identified by Docket Numbers USCIS-
                2019-0021 and EOIR Docket No. 19-0021, through the Federal eRulemaking
                Portal: http://www.regulations.gov. If you cannot submit your material
                by using https://www.regulations.gov, contact the person in the FOR
                FURTHER INFORMATION CONTACT section of this document for alternate
                instructions.
                FOR FURTHER INFORMATION CONTACT:
                 USCIS: Andrew Davidson, Chief, Asylum Division, Refugee Asylum and
                International Operations, U.S. Citizenship & Immigration Services, 20
                Massachusetts Avenue NW, Suite 1100, Washington, DC 20529-2140;
                Telephone (202) 272-8377 (not a toll-free call).
                 EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
                Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
                2616, Falls Church, VA 22041; Telephone (703) 305-0289 (not a toll-free
                call).
                SUPPLEMENTARY INFORMATION:
                I. Public Participation
                 Interested persons are invited to participate in this rulemaking by
                submitting written data, views, or arguments on all aspects of this
                rule. The Departments also invite comments that relate to the potential
                economic or federalism effects that might result from this rule. To
                provide the most assistance to the Departments, comments should
                reference a specific portion of the rule; explain the reason for any
                recommended change; and include data, information, or authority that
                supports the recommended change. Comments received will be considered
                and addressed in the process of drafting the final rule.
                 All comments submitted for this rulemaking should include the
                agency names and Docket Numbers USCIS-2019-0021 and EOIR Docket No. 19-
                0021. Please note that all comments received are considered part of the
                public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable
                information (such as a person's name, address, or any other data that
                might personally identify that individual) that the commenter
                voluntarily submits.
                II. Executive Summary
                 The Departments are adopting an interim final rule to modify
                existing regulations to provide for the implementation of agreements
                that the United States enters into pursuant to section 208(a)(2)(A) of
                the INA. 8 U.S.C. 1158(a)(2)(A). Such agreements--referred to by the
                Departments as Asylum Cooperative Agreements and alternatively
                described as safe third country agreements in existing regulations--are
                formed between the United States and foreign countries where aliens
                removed to those countries would have access to a full and fair
                procedure for determining a claim to asylum or equivalent temporary
                protection.\1\ In certain circumstances, an ACA, in conjunction with
                section 208(a)(2)(A), bars an alien subject to the agreement from
                applying for asylum in the United States and provides for the removal
                of the alien, pursuant to the agreement, to a country that will provide
                access to a full and fair procedure for determining the alien's
                protection claim. Removal pursuant to these agreements will be ordered
                within ER proceedings or, in certain instances, within INA section 240
                removal proceedings. But because the underlying purpose of section
                208(a)(2)(A) is to provide asylum seekers with access to only one of
                the ACA signatory countries' protection systems, this rule adopts a
                modified approach to the ER and section 240 processes in the form of a
                threshold screening as to which country will consider the alien's
                claim. This rule will apply to all ACAs between the United States and
                countries other than Canada. In 2002, the United States and Canada
                entered into a bilateral ACA, titled the ``Agreement Between the
                Government of the United States and the Government of Canada for
                Cooperation in the Examination of Refugee Status Claims from Nationals
                of Third Countries,'' which the Departments implemented by regulation
                in 2004.
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                 \1\ For ease of reference, this rule refers to an asylum claim
                in the third country as alternatively encompassing ``equivalent
                temporary protection'' consistent with INA section 208(a)(2)(A), 8
                U.S.C. 1158(a)(2)(A).
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                 Although various recent regulatory reforms have reduced the burdens
                associated with adjudicating asylum claims (and others hold out promise
                to do so should injunctions on their implementation be lifted), the
                U.S. asylum system remains overtaxed. Hundreds of thousands of migrants
                have reached the United States in recent years and have claimed a fear
                of persecution \2\ or torture. They often do
                [[Page 63995]]
                not ultimately establish legal qualification for such relief or even
                actually applying for protection after being released into the United
                States, which has contributed to a backlog of 987,198 cases before the
                Executive Office for Immigration Review (including 474,327 asylum
                cases), each taking an average of 816 days to complete. Asylum claims
                by aliens from El Salvador, Guatemala, and Honduras account for over
                half of the pending asylum cases.
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                 \2\ ``Fear of persecution'' as used in this document describes
                persecution ``on account of race, religion, nationality, membership
                in a particular social group, or political opinion.'' INA
                208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
                ---------------------------------------------------------------------------
                 To help alleviate those burdens and promote regional migration
                cooperation, the United States recently signed bilateral ACAs with El
                Salvador, Guatemala, and Honduras in an effort to share the
                distribution of asylum claims.\3\ Pending the Department of State's
                publication of the ACAs in the United States Treaties and Other
                International Agreements series in accordance with 1 U.S.C. 112a, the
                agreements will be published in a document in the Federal Register.
                This rule will establish the authority of DHS asylum officers to make
                threshold determinations as to whether aliens are ineligible to apply
                for asylum under those three ACAs, and any future ones, in the course
                of ER proceedings under section 235(b)(1) of the Act, 8 U.S.C.
                1225(b)(1), once the agreements enter into force. As a practical
                matter, this rule will also establish the authority of immigration
                judges (``IJs'') to make such determinations in the context of removal
                proceedings under INA section 240, 8 U.S.C. 1229a. To the extent that
                an alien in ER proceedings is rendered ineligible to apply for asylum
                by more than one ACA, the immigration officer will assess which
                agreement is most appropriately applicable to the alien. Immigration
                officers may exercise discretion in making such determinations as
                authorized by the Secretary of Homeland Security (``Secretary'') via
                field guidance. To the extent that an alien in section 240 proceedings
                is rendered ineligible to apply for asylum by more than one ACA, the
                immigration judge shall enter alternate orders of removal to each
                country that is a signatory to an applicable ACA. DHS immigration
                officers may exercise discretion when selecting from among the
                alternate orders, again, as authorized by the Secretary via field
                guidance. The rule will apply only prospectively to aliens who arrive
                at a U.S. port of entry, or enter or attempt to enter the United States
                between ports of entry, on or after the effective date of the rule.
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                 \3\ None of these agreements have yet entered into force.
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                III. Purpose of This Interim Final Rule
                 Asylum is a discretionary immigration benefit that generally can be
                sought by eligible aliens who are physically present or arriving in the
                United States. See INA 208(a)(1), 8 U.S.C. 1158(a)(1). Throughout the
                past decade, the United States has experienced a significant increase
                in the number of aliens encountered at or near its borders,
                particularly the southern land border with Mexico, as described by the
                Departments' recent joint rule requiring certain aliens seeking to
                apply for asylum to have first applied for equivalent protection in at
                least one country through which they transited en route to the United
                States, see Asylum Eligibility and Procedural Modifications, 84 FR
                33829, 33830 (July 16, 2019). This increase has been accompanied by a
                sharp increase in the number and percentage of aliens requesting asylum
                or claiming a fear of persecution or torture when apprehended or
                encountered by DHS. As noted by the third-country-transit rule, for
                example, over the past decade the percentage of aliens referred for
                credible fear interviews within ER proceedings jumped from
                approximately 5 percent to above 40 percent. Id. at 33830-31. The
                number of asylum cases filed with DOJ also rose sharply, more than
                tripling between 2013 and 2018. Id. at 33831. During that same period,
                the filing of affirmative asylum applications rose from 44,453 in 2013
                to 106,147 in 2018.
                 This increase reflects high rises in both defensive asylum claims
                (i.e., asylum claims raised after removal proceedings have begun) and
                affirmative asylum claims (i.e., asylum claims raised apart from or
                before removal proceedings have begun). In Fiscal Year (``FY'') 2018,
                110,136 individuals in ER proceedings raised claims of persecution or
                torture and were referred for credible fear interviews (99,035
                individuals) or reasonable fear interviews (11,101 individuals). These
                individuals, combined with individuals who filed for asylum while in
                INA section 240 removal proceedings, resulted in 114,532 defensive
                asylum applications filed with DOJ in FY2018. Additionally, in FY2018,
                48,922 affirmative asylum applications were also referred to DOJ. By
                contrast, in FY2013, 43,768 individuals in ER proceedings raised claims
                of persecution or torture and were referred for credible fear
                interviews (36,035 individuals) or reasonable fear interviews (7,733
                individuals). These individuals, combined with individuals who filed
                for asylum while in section 240 removal proceedings, resulted in 23,500
                defensive asylum applications filed with DOJ in FY2013. Additionally,
                in FY2013, 19,963 affirmative asylum applications were also referred to
                DOJ.
                 This has led to a backlog that, as of October 11, 2019, included
                more than 476,000 asylum cases before DOJ's Executive Office for
                Immigration Review (``EOIR''). The backlog of affirmative asylum
                applications pending with USCIS sits at 340,810, as of the end of
                FY2019. Historically, only a small minority of the individuals claiming
                a fear of return on the basis of persecution or torture were ultimately
                granted asylum or had even applied for it. Indeed, over the years, many
                aliens who initially claimed a fear of return upon entry or arrival
                abandoned those claims altogether.
                 Immigration detention centers have often been pushed to capacity,
                making even temporary detention for arriving aliens difficult to
                sustain. Or aliens have been released into the interior of the country,
                after which they often fail to appear for their removal proceedings, or
                unlawfully abscond after receiving removal orders, becoming fugitives.
                To help ease some of the burden on the immigration detention system and
                to reduce the numbers of aliens illegally entering the country, the
                Administration has worked with Mexico to permit people attempting to
                enter the United States from Mexico on land to remain in Mexico while
                awaiting their removal proceedings, pursuant to section 235(b)(2)(C) of
                the INA, 8 U.S.C. 1225(b)(2)(C).
                 Arresting the significant number of aliens who illegally enter the
                United States or arrive at ports of entry without the necessary
                documents to enter the United States legally, and processing and
                adjudicating their fear of return claims for ER, and processing and
                adjudicating their asylum claims in removal proceedings under INA
                section 240, consumes a tremendous amount of resources within the
                Departments of Justice and Homeland Security. After surveilling and
                arresting aliens, DHS must devote significant resources towards
                detaining many aliens pending further proceedings, process (and in the
                context of ER) adjudicate their claims (which are subject to
                potentially multiple layers of review), and represent the United States
                during removal proceedings before EOIR.
                 The large number of aliens seeking relief in the United States also
                consumes substantial DOJ resources. Within DOJ, IJs adjudicate aliens'
                asylum claims in INA section 240
                [[Page 63996]]
                proceedings, prosecutors and law enforcement officials must prosecute
                and maintain custody of aliens who violate Federal criminal law, and
                DOJ attorneys represent the United States in civil cases involving
                immigration and detention issues. Despite DOJ deploying 80% more
                immigration judges than in 2010, and completing nearly double the
                number of asylum cases in FY2018 as in FY2010, more than 476,000 asylum
                cases remain pending before the immigration courts. Further,
                immigration courts have an additional caseload that stems from cases
                that are not related to asylum. This significantly increased backlog is
                due in part to the sharp increase in the numbers of filed asylum
                applications. Between 2010 and 2018, there was a nearly nine-fold
                increase in defensive asylum cases and the number of affirmative asylum
                cases referred to EOIR more than doubled.
                 The large majority of fear of persecution or torture claims raised
                by those arrested at the southern border either have not led to actual
                claims for asylum or have been ultimately determined to be without
                legal merit. For example, in FY2018, 34,031 individuals who had
                received credible fear interviews before asylum officers were referred
                to DOJ for asylum hearings. Approximately 39%, or 13,369, of these
                individuals failed to file an asylum application, and thus abandoned
                their claims. Only 5,577 individuals were granted asylum, a number
                equal to 16.4% of all individuals referred to DOJ after credible fear
                interviews, or 27% of individuals who were referred to DOJ following a
                credible fear interview and filed an asylum application. The success
                rate declines when one looks at all asylum applications adjudicated by
                DOJ. In FY2018, 64,223 asylum applications were adjudicated by DOJ's
                immigration judges. Only 13,173, or 20.5%, were granted. The strain on
                the U.S. immigration system, and the wait times for aliens seeking to
                process legitimate claims through the U.S. asylum system, is extreme.
                This delay extends to the immigration court system, where cases
                involving related immigration and detention issues have caused
                significant docket backlogs.
                 In section 208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A),
                Congress provided a mechanism to help ease this strain on the
                immigration system by authorizing the Executive Branch to enter into
                agreements with other countries to distribute the burdens associated
                with adjudicating claims for asylum or equivalent temporary protection.
                Specifically, section 208(a)(2)(A) authorizes the Executive Branch to
                bar an alien from applying for asylum in the United States where,
                pursuant to a bilateral or multilateral agreement, the alien may be
                removed to a third country (i.e., a country other than the alien's
                country of nationality or last habitual residence, see INA
                208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)), that affords the alien access to
                a full and fair procedure for determining claims for asylum or
                equivalent temporary protection. Consistent with the President's
                extensive foreign affairs authority, see, e.g., Zivotofsky v. Kerry,
                135 S. Ct. 2076, 2084-94 (2015); United States v. Curtiss-Wright Exp.
                Corp., 299 U.S. 304, 319 (1936) (emphasizing the President's extensive
                role representing U.S. interests in relations with foreign nations),
                section 208(a)(2)(A), by its terms, provides substantial flexibility to
                the Executive Branch in negotiating and implementing ACAs. Accord INA
                208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Attorney General
                and Secretary to ``provide by regulation for any other conditions or
                limitations on the consideration of an application for asylum not
                inconsistent with this chapter''); see also Youngstown Sheet & Tube Co.
                v. Sawyer, 343 U.S. 579, 635 (Jackson, J., concurring) (``When the
                President acts pursuant to an express or implied authorization of
                Congress, his authority is at its maximum, for it includes all that he
                possesses in his own right plus all that Congress can delegate.''); id.
                at 637 (observing that an exercise of federal affairs power ``pursuant
                to an Act of congress would be supported by the strongest of
                presumptions and the widest latitude of judicial interpretation'').
                 In contrast to statutory and regulatory bars providing that certain
                aliens are ineligible to receive asylum, see, e.g., INA 208(b)(2)(A),
                (C), 8 U.S.C. 1158(b)(2)(A), (C), the ACA bar relates to whether an
                alien may even apply for asylum. Unlike the restrictions on asylum
                eligibility, application of the ACA bar does not involve an evaluation
                of whether an alien would ultimately receive asylum relief if able to
                apply, or even whether the alien has made a preliminary showing of a
                significant possibility that the alien would be eligible for asylum.
                Rather, section 208(a)(2)(A) bars an alien from applying for asylum in
                the United States when the following four requirements are satisfied:
                (i) The United States has entered into a requisite ``bilateral or
                multilateral agreement''; (ii) at least one of the signatory countries
                to the agreement is a ``third country'' with respect to the alien;
                (iii) ``the alien's life or freedom would not be threatened'' in that
                third country ``on account of race, religion, nationality, membership
                in a particular social group, or political opinion''; and (iv) that
                third country provides aliens removed there pursuant to the agreement
                ``access to a full and fair procedure for determining a claim to asylum
                or equivalent temporary protection.'' \4\ Even if all of these elements
                are satisfied, the Secretary nonetheless may determine in his
                discretion ``that it is in the public interest for the alien to receive
                asylum in the United States.'' INA 208(a)(2)(A), 8 U.S.C.
                1158(a)(2)(A).
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                 \4\ Unaccompanied alien children, as defined by 6 U.S.C. 279(g),
                are categorically exempted from the ACA bar. See INA 208(a)(2)(E), 8
                U.S.C. 1158(a)(2)(E).
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                 This interim rule will amend DHS and DOJ regulations implementing
                section 208(a)(2)(A) to effectuate ACAs other than the agreement
                already formed with Canada in 2002 and implemented by regulation in
                2004. See Implementation of the Agreement Between the Government of the
                United States of America and the Government of Canada Regarding Asylum
                Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR 69480
                ((Nov. 29, 2004) (DHS) Asylum Claims Made by Aliens Arriving from
                Canada at Land Border Ports-of-Entry, 69 FR 69490 (Nov. 29, 2004)
                (DOJ).
                 In particular, this rule will broaden the procedures (implemented
                in ER and INA section 240 proceedings) for determining whether an alien
                is subject to an ACA or within one of its exceptions to account for
                ACAs other than the U.S.-Canada Agreement. Additionally, this rule will
                establish a screening mechanism to evaluate whether an alien who would
                otherwise be removable to a third country under an ACA other than the
                U.S.-Canada Agreement can establish that it is more likely than not
                that he or she would be persecuted on account of race, religion,
                nationality, membership in a particular social group, or political
                opinion, or would be tortured in that third country. This rule
                consequently will provide a general mechanism for implementation of all
                existing and future ACAs not previously implemented.\5\ In sum, this
                [[Page 63997]]
                rule implements a screening mechanism to determine: (i) Whether an
                alien falls within the terms of a bilateral or multilateral ACA formed
                under section 208(a)(2)(A), other than the previously implemented U.S.-
                Canada Agreement, (ii) whether an alien within an ACA's plain terms
                nonetheless falls under one of the agreement's exceptions, and (iii)
                whether an alien within an ACA's scope but not subject to an exception
                nonetheless demonstrates that it is more likely than not that the
                alien's life or freedom would be threatened or the alien would be
                tortured in the third country.
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                 \5\ This interim rule leaves in place the regulatory structure
                specific to the U.S.-Canada Agreement so as to avoid disruption to
                long-standing processes and expectations concerning implementation
                of that agreement. This rule will allow for implementation of ACAs
                that have a broader scope of applicability than the U.S.-Canada
                Agreement and, consequently, provides for a more robust threshold
                screening mechanism for evaluating whether an alien is properly
                removed subject to an ACA other than the U.S.-Canada Agreement,
                which is narrowly directed to third country nationals seeking to
                enter the United States at a U.S.-Canada land border port of entry.
                ---------------------------------------------------------------------------
                 ACAs entered pursuant to section 208(a)(2)(A) will be published in
                the Federal Register. Prior to implementation of an ACA, the Attorney
                General and the Secretary of Homeland Security (``Secretary'') will
                evaluate and make a categorical determination whether a country to
                which aliens would be removed under such an agreement provides ``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). Section 208(a)(2)(A) of the INA also requires a
                determination that an alien's life and freedom would not be threatened
                on account of a protected ground in a third country with which the
                United States has entered into an ACA. This rule effectuates such a
                determination via individualized threshold screening that provides an
                opportunity for an alien to establish fear of persecution in the third
                country to which he would be removed pursuant to an ACA.
                 The INA's ACA provision provides authority to pursue significant
                policy interests by entering into bilateral or multilateral agreements
                allowing for burden-sharing between the United States and other
                countries with respect to refugee-protection claims.
                 Consistent with this compelling policy aim, this interim rule is
                intended to aid the United States in its negotiations with foreign
                nations on migration issues. Specifically, the rule will aid the United
                States as it seeks to develop a regional framework with other countries
                to more equitably distribute the burden of processing the protection
                claims of the hundreds of thousands of irregular migrants who now seek
                to enter the United States every year and claim a fear of return.
                Addressing the eligibility for asylum of aliens who enter or attempt to
                enter the United States will better position the United States as it
                engages in ongoing diplomatic negotiations with Mexico and the Northern
                Triangle countries (El Salvador, Guatemala, and Honduras) regarding
                migration issues in general, and related measures employed to curtail
                the irregular flow of aliens into the United States.
                IV. Background and Legal Basis for Regulatory Changes
                A. DOJ and DHS Authority To Promulgate This Rule
                 The Attorney General and the Secretary publish this joint IFR
                pursuant to their respective authorities concerning asylum
                determinations. The Homeland Security Act of 2002 (``HSA''), Public Law
                107-296, 116 Stat. 2135, as amended, created DHS and transferred to it
                many functions related to the execution of Federal immigration law. The
                Secretary was charged ``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), and
                granted the power to take all actions ``necessary for carrying out''
                his authority under the immigration laws, INA 103(a)(3), 8 U.S.C.
                1103(a)(3).
                 The HSA thus transferred to DHS some authority to adjudicate asylum
                applications, including the authority to conduct ``credible fear''
                interviews in the context of ER. INA 235(b)(1)(B), 8 U.S.C.
                1225(b)(1)(B); see also HSA 451(b), 116 Stat. at 2196 (providing for
                the transfer of adjudication of asylum and refugee applications from
                the Commissioner of Immigration and Naturalization to the Director of
                the Bureau of Citizenship and Immigration Services). That authority has
                been delegated within DHS to USCIS. See 8 CFR 208.2(a), 208.30.
                 In addition, under the HSA, the Attorney General retained authority
                over individual immigration adjudications (including certain
                adjudications related to asylum applications) conducted within EOIR.
                See HSA 1101(a), 6 U.S.C. 521; INA 103(g), 8 U.S.C. 1103(g). IJs within
                DOJ continue to adjudicate all asylum applications made by aliens
                during the removal process, and they also review asylum applications
                referred by USCIS to the immigration court. See INA 101(b)(4),
                240(a)(1), 8 U.S.C. 1101(b)(4), 1229a(a)(1); 8 CFR 1208.2(b),
                1240.1(a). Additionally, the INA provides that ``determination and
                ruling by the Attorney General with respect to all questions of law
                shall be controlling.'' INA 103(a)(1), 8 U.S.C. 1103(a)(1).
                 This rule specifically concerns implementation of section
                208(a)(2)(A) of the INA, 8 U.S.C. 1158(a)(2)(A), which generally
                provides that an alien may not apply for asylum if the Attorney General
                and the Secretary determine that the alien may be removed, pursuant to
                a bilateral or multilateral agreement, to a country (other than the
                country of the alien's nationality or, in the case of an alien having
                no nationality, the country of the alien's last habitual residence) in
                which 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 the alien would have access to a full
                and fair procedure for determining a claim to asylum or equivalent
                temporary protection, unless the Secretary finds that it is in the
                public interest for the alien to receive asylum in the United States.
                 By operation of the HSA, the reference to ``Attorney General'' is
                understood to also encompass the Secretary, depending on whether the
                alien is in immigration proceedings before DHS or DOJ. Thus,
                determinations as to whether an alien's asylum application is barred by
                INA section 208(a)(2)(A), in conjunction with an ACA, fall within the
                scope of both DHS and DOJ authority, as each department bears
                responsibility for adjudicating asylum applications. In addition,
                section 208(d)(5)(B) of the INA authorizes the Secretary and the
                Attorney General to ``provide by regulation for any other conditions or
                limitations on the consideration of an application for asylum not
                inconsistent with this chapter.'' 8 U.S.C. 1158(d)(5)(B); see
                Implementation of the Agreement Between the Government of the United
                States of America and the Government of Canada Regarding Asylum Claims
                Made in Transit and at Land Border Ports-of-Entry, 69 FR 10620, 10622
                (Mar. 8, 2004) (DHS) (proposed rule) (relying in part on INA
                208(d)(5)(B) to establish threshold screening for applicability of INA
                208(a)(2)(A) in relation to the U.S.-Canada Agreement). This broad
                division of functions and authorities informs the background of this
                interim rule.
                B. Adjudication of Asylum Applications and the Section 208(a)(2)(A) Bar
                 Asylum is a form of discretionary relief under section 208 of the
                INA, 8 U.S.C. 1158. Under that provision, aliens applying for asylum
                must establish (i) that they meet the definition of a ``refugee'' set
                forth at INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A); (ii) that they are
                not subject to a bar to either applying for asylum or receiving asylum;
                and (iii) that they merit a favorable exercise of discretion. INA
                208(a)-(b), 8 U.S.C. 1158(a)-(b).
                [[Page 63998]]
                1. Removal Under ER and INA Section 240 Proceedings
                 When aliens indicate an intention to apply for asylum, or express a
                fear of persecution or torture, or a fear of removal to their country
                in the context of ER proceedings, they are evaluated in ER proceedings
                by immigration officers through a credible fear interview designed to
                determine whether there is a significant possibility that the alien
                would be eligible for asylum, statutory withholding of removal, or
                protection under the regulations issued pursuant to legislation
                implementing the Convention Against Torture and Other Cruel, Inhuman or
                Degrading Treatment or Punishment (``CAT''), December 10, 1984, 1465
                U.N.T.S. 84, S. Treaty Doc. No. 100-20 (1988). INA 235(b)(1)(B), 8
                U.S.C. 1225(b)(1)(B), 8 CFR 208.30, 235.3(b)(4). Section 235(a)(3) of
                the INA provides that ``[a]ll aliens . . . who are applicants for
                admission . . . shall be inspected by immigration officers.'' 8 U.S.C.
                1225(a)(3). As part of initial inspections, immigration officers must
                assess whether an alien is inadmissible. Aliens who cannot establish
                ``clearly and beyond a doubt'' that they are ``entitled to be
                admitted'' will be examined for removal, as a matter of discretion,
                under the jurisdictional framework of either ER (if they are eligible)
                \6\ or section 240 removal proceedings (or, in certain circumstances,
                other removal proceedings). See INA 235(b)(2)(A), 8 U.S.C.
                1225(b)(2)(A) (``Subject to subparagraphs (B) and (C), in the case of
                an alien who is an applicant for admission, if the examining
                immigration officer determines that an alien seeking admission is not
                clearly and beyond a doubt entitled to be admitted, the alien shall be
                detained for a proceeding under section [240].''); INA 235(b)(2)(B), 8
                U.S.C. 1225(b)(2)(B) (providing that crewmen, stowaways, and aliens
                subject to ER need not receive section 240 hearings).
                ---------------------------------------------------------------------------
                 \6\ See INA 235(b)(1)(A), 8 U.S.C. 1225(b)(1)(A) (authorizing
                screening by immigration officers to determine whether aliens are
                eligible for ER because they are inadmissible for engaging in fraud
                or willful misrepresentation related to a visa, other documentation,
                or admission, or for falsely claiming U.S. citizenship, INA
                212(a)(6)(C), 8 U.S.C. 1182(a)(6)(C), or for not possessing valid
                entry documents, INA 212(a)(7), 8 U.S.C. 1182(a)(7)).
                ---------------------------------------------------------------------------
                 In the ER process, if a DHS immigration officer determines that an
                alien is inadmissible on one of two specified grounds, and meets
                certain other criteria, the alien generally must be ``removed from the
                United States without further hearing or review unless the alien
                indicates either an intention to apply for asylum under [section 208]
                or a fear of persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C.
                1225(b)(1)(A)(i). If, however, such an alien ``indicates either an
                intention to apply for asylum . . . or a fear of persecution'' (or, by
                regulation, a fear of torture), the alien must instead be referred
                ``for an interview by an asylum officer.'' INA 235(b)(1)(A)(ii), 8
                U.S.C. 1225(b)(1)(A)(ii); see also 8 CFR 235.3(b)(4).
                 Generally, in that interview, the asylum officer determines whether
                the alien has ``a credible fear of persecution or torture''--that is,
                whether there is a ``significant possibility'' that the alien could
                succeed on the merits of his or her claims for asylum, statutory
                withholding of removal, or protection under the CAT regulations. 8 CFR
                208.30(d), (e)(2)-(3). If the officer makes a positive credible fear
                determination, the officer must refer the alien ``for full
                consideration of [the alien's claim(s) for relief or protection] in
                proceedings under section 240 of the Act.'' Id. 208.30(f). If the
                asylum officer makes a negative determination, and a supervisory
                officer concurs, the asylum officer ``shall order the alien removed,''
                subject to review by an IJ at the request of the alien of the negative
                credible fear determination. Id. 208.30(g)(1)(i)-(ii).
                 Similarly, in section 240 removal proceedings, an IJ first
                determines whether the alien is inadmissible or deportable. See INA
                240(c)(2)-(3), 8 U.S.C. 1229a(c)(2)-(3); 8 CFR 1240.8(a)-(c). If the IJ
                determines that the alien is inadmissible or deportable, the alien then
                bears the burden to demonstrate that he or she should receive any form
                of relief or protection from removal--e.g., asylum. See INA 240(c)(4),
                8 U.S.C. 1229a(c)(4); 8 CFR 1240.8(d). If the alien does so, the IJ
                grants the alien's application for relief or protection; if not, the IJ
                orders the alien removed, subject to potential review by the Board of
                Immigration Appeals (``BIA'') and a federal court of appeals. See INA
                240(c)(1), (5), 8 U.S.C. 1229a(c)(1), (5); INA 242, 8 U.S.C. 1252; 8
                CFR 1003.1(b)(3), 1240.1(a)(1).
                2. Removals to Third Countries Consistent With the ACA Provision of INA
                Section 208(a)(2)(A)
                 Directly upon an initial inadmissibility or deportability
                determination within either an ER proceeding or a section 240
                proceeding, see, e.g., INA 235(b)(1)(A)(ii), 240(c)(2)-(3), 8 U.S.C.
                1225(b)(1)(A)(ii), 1229a(c)(2)-(3), section 208(a)(2)(A) authorizes an
                asylum officer or IJ to conduct a threshold screening to determine
                whether an alien is barred from applying for asylum in the United
                States pursuant to an ACA, 8 U.S.C. 1158(a)(2)(A). This rule will
                provide a mechanism for the operation of these threshold screenings.
                Under this rule, an asylum officer or IJ will determine whether an
                alien is subject to an ACA, and, if so, in those instances in which the
                alien affirmatively states a fear of removal to a country that is a
                signatory to the agreement, whether the alien can affirmatively
                establish it is more likely than not that the alien would be persecuted
                or tortured in that country. If the alien is subject to the ACA but
                fails to demonstrate it is more likely than not that he or she would be
                subject to persecution on account of a protected ground or to torture
                in that country, the ER or section 240 proceeding would be completed
                without an adjudication of any claims relating to a fear of persecution
                or torture in the alien's home country.
                 Under this rule, however, an alien may voluntarily abandon his or
                her asylum claim prior to removal pursuant to an ACA, choosing instead
                to accept a removal order without pursuing any application for asylum.
                Cf. Implementation of the Agreement Between the Government of the
                United States of America and the Government of Canada Regarding Asylum
                Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR at
                69482 (DHS) (noting that immigration officers can use their discretion
                to permit aliens subject to removal under ACAs to withdraw their
                applications for admission so that they do not face an admissibility
                bar to a subsequent admission to the United States). Further,
                application of an ACA remains within the discretion of the screening
                officer and DHS, which may conclude nonetheless that ``it is in the
                public interest for the alien to receive asylum in the United States.''
                \7\ INA 208(a)(2)(A), 1158(a)(2)(A); see Asylum Claims Made by Aliens
                Arriving from Canada at Land Border Ports-of-Entry, 69 FR 10627, 10628
                (DOJ) (proposed rule) (recognizing that ``the United States Government
                may conclude, in its discretion, that it is in the public interest to
                allow an arriving alien to remain in the United States to pursue
                [[Page 63999]]
                protection'' even if the alien is subject to an ACA and that this
                ``discretionary determination is reserved to DHS'').
                ---------------------------------------------------------------------------
                 \7\ As in the case of the U.S.-Canada Agreement, if there are
                unique considerations that the individual would like DHS to consider
                with respect to the ``public interest'' exception to application of
                an ACA, the individual should timely bring them to the officer's
                attention. Cf. Implementation of the Agreement Between the
                Government of the United States of America and the Government of
                Canada Regarding Asylum Claims Made in Transit and at Land Border
                Ports-of-Entry, 69 FR at 69483 (DHS) (noting that the Agreement's
                public interest exception is ``best administered through operational
                guidance and on an individualized, case-by-case basis'').
                ---------------------------------------------------------------------------
                 Section 208(a)(1) generally establishes that ``[a]ny alien who is
                physically present in . . . or who arrives in the United States . . .
                may apply for asylum.'' 8 U.S.C. 1158(a)(1). But section 208(a)(2)
                places limitations on those applications. Most of the section 208(a)(2)
                application limitations are procedural, such as the stipulation that
                asylum applications must generally be filed within one year of arrival
                in the United States. INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). But
                section 208(a)(2)(A) provides a more substantive limitation--
                establishing that, in certain circumstances, an alien covered by an ACA
                is prohibited from applying for asylum in the United States.
                 Specifically, an alien's asylum application is barred if the
                following four conditions are satisfied: (i) The United States has
                entered ``a bilateral or multilateral agreement'' under which certain
                aliens may be removed--that is, an ACA; (ii) the alien is subject to
                the ACA, and one of the signatory countries is a ``third country'' with
                respect to the alien; (iii) ``the alien's life or freedom would not be
                threatened'' in that third country ``on account of race, religion,
                nationality, membership in a particular social group, or political
                opinion''; and (iv) that third country will provide the alien with
                ``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). The INA provides that ``[n]o court shall have
                jurisdiction'' to review any determination of the Attorney General or
                Secretary made under any of the provisions within section 208(a)(2).
                INA 208(a)(3), 8 U.S.C. 1158(a)(3).
                3. Protection Screening With Respect to Removal to the Third Country
                 Where section 208(a)(2)(A) applies, it bars an alien from applying
                for asylum in the United States and authorizes the removal of the alien
                to a third country that will provide procedures for asylum or
                equivalent temporary protection in the place of the United States. This
                rule, however, provides that if an alien states a fear of persecution
                or torture in, or removal to, the third country, an asylum officer will
                determine whether ``the alien's life or freedom would . . . be
                threatened on account of race, religion, nationality, membership in a
                particular social group, or political opinion.'' INA 208(a)(2)(A), 8
                U.S.C. 1158(a)(2)(A). The terms of section 208(a)(2)(A) do not specify
                the precise procedural mechanism by which the Attorney General and
                Secretary must determine that an alien's life or freedom will not be
                threatened on account of a protected ground in the third country. As
                the relevant text of section 208(a)(2)(A) (``the alien's life or
                freedom would not be threatened [in the third country] on account of
                race, religion, nationality, membership in a particular social group,
                or political opinion'') mirrors the standard for protection contained
                in the INA's withholding-of-removal provision, INA 241(b)(3)(A), 8
                U.S.C. 1231(b)(3)(A), this regulation adopts the burden of proof that
                applies in the withholding-of-removal context. And the withholding-of-
                removal provision has long been construed to call for a determination
                as to whether the alien can show that it is ``more likely than not''
                that he or she would be persecuted on account of a protected ground in
                the country of removal. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423
                (1987); INS v. Stevic, 467 U.S. 407, 429-30 (1984); see also 8 CFR
                1208.16(b)(2). Accordingly, under the threshold screening implemented
                by this rule, an alien will not be removed to a third country under INA
                section 208(a)(2)(A) if the alien establishes that it is more likely
                than not that the alien would be persecuted on account of a protected
                ground in that country.
                 The United States has undertaken certain non-refoulement (non-
                return) obligations under the 1967 Protocol relating to the Status of
                Refugees (``1967 Protocol''), which incorporates Articles 2-34 of the
                1951 Convention relating to the Status of Refugees (``1951
                Convention'').\8\ Article 33 of the 1951 Refugee Convention, as
                understood in U.S. law, generally precludes state parties from removing
                individuals to any country where their lives or freedom would be
                threatened on account of their race, religion, nationality, political
                opinion, or membership in a particular social group. Consistent with
                these obligations, Congress has precluded removal of an alien to a
                third country under section 208(a)(2)(A) if ``the alien's life or
                freedom would . . . be threatened on account of race, religion,
                nationality, membership in a particular social group, or political
                opinion.'' 8 U.S.C. 1158(a)(2)(A).
                ---------------------------------------------------------------------------
                 \8\ The United States is a party to the 1967 Protocol, but not
                the 1951 Convention. Stevic, 467 U.S. at 416 & n.9. The Protocol is
                not self-executing in the United States. See Khan v. Holder, 584
                F.3d 773, 783 (9th Cir. 2009). But the United States has implemented
                Article 34 of the 1951 Convention--which provides that party states
                ``shall as far as possible facilitate the assimilation and
                naturalization of refugees''--through the INA's asylum provision,
                section 208. See Cardoza-Fonseca, 480 U.S. at 441 (internal
                quotation marks omitted). As the Supreme Court has recognized,
                Article 34 is ``precatory'' and ``does not require [an] implementing
                authority actually to grant asylum to all'' persons determined to be
                refugees. Id. Thus, Congress's decision to bar certain classes of
                aliens from applying for asylum does not contravene Article 34. See
                Garcia v. Sessions, 856 F.3d 27, 42 (1st Cir. 2017) (Article 34 does
                not ``preclude[ ] a contracting State from imposing a limitation on
                the eligibility of an alien to seek asylum''); see also R-S-C- v.
                Sessions, 869 F.3d 1176, 1188 (10th Cir. 2017) (similar); Cazun v.
                U.S. Att'y Gen., 856 F.3d 249, 257 & n.16 (3d Cir. 2017) (similar).
                ---------------------------------------------------------------------------
                 The United States has also undertaken certain non-refoulement
                obligations under CAT, which are effectuated by DHS and DOJ regulations
                that prohibit the removal of an alien to a country where he or she
                would more likely than not be tortured. See 8 CFR 208.16(c),
                1208.16(c).\9\ Removing an alien to a third country pursuant to an ACA
                for consideration of the alien's protection claim in that country is
                consistent with U.S. obligations under CAT, in the absence of grounds
                for believing that the alien would be persecuted on account of a
                protected ground or tortured in the third country. See Implementation
                of the Agreement Between the Government of the United States of America
                and the Government of Canada Regarding Asylum Claims Made in Transit
                and at Land Border Ports-of-Entry, 69 FR at 10624 (DHS) (proposed rule)
                (explaining the interaction between CAT obligations and the application
                of the U.S.-Canada Agreement).
                ---------------------------------------------------------------------------
                 \9\ CAT is also not self-executing in the United States. See
                Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005).
                ---------------------------------------------------------------------------
                 Congress enacted section 208(a)(2)(A) as a mechanism for countries
                to burden-share the responsibility for providing protection to
                refugees. Such agreements allocate responsibility between the United
                States and the third country with which it has formed an ACA whereby
                one country or the other (but not both) will bear responsibility for
                processing the asylum and other protection claims of refugees subject
                to the terms of the ACA. See id. at 10620 (explaining the legal
                authority for applying cooperative agreements rather than permitting
                applications for asylum or other relief in the United States); see also
                Asylum Claims Made by Aliens Arriving from Canada at Land Border Ports-
                of-Entry, 69 FR at 10628 (DOJ) (proposed rule) (providing that aliens
                subject to the U.S.-Canada Agreement are ``not eligible to apply for
                asylum, withholding of removal, or protection under [CAT] in the United
                States''). The salient factor for the formulation and application of a
                section 208(a)(2)(A) agreement is whether the country sharing
                responsibility with the United States for refugee protection has laws
                and
                [[Page 64000]]
                mechanisms in place that adhere to international treaty obligations to
                protect refugees. See Implementation of the Agreement Between the
                Government of the United States of America and the Government of Canada
                Regarding Asylum Claims made in Transit and at Land Border Ports-of-
                Entry, 69 FR at 10620 (DHS) (proposed rule).
                 Accordingly, this interim rule provides that an alien who will
                potentially be subject to an ACA will be advised that he or she may be
                removed to a third country pursuant to a bilateral or multilateral
                agreement. If the alien affirmatively states a fear of removal to or
                persecution or torture in that third country, a DHS asylum officer will
                interview the alien to determine whether it is more likely than not
                that the alien would be persecuted on account of a protected ground or
                tortured in the third country. See 8 CFR 208.30. DOJ immigration judges
                will apply a similar procedure to determine whether a removal pursuant
                to an ACA cannot proceed because the individual has established that it
                is more likely than not that he or she would be persecuted on account
                of a protected ground or tortured in the third country. See id.
                1240.11.
                4. Additional Consequences of the Applicability of Section 208(a)(2)(A)
                to an Alien's Asylum Application
                 If an asylum officer or IJ determines that an alien is barred from
                applying for asylum under section 208(a)(2)(A), then the alien is also
                barred from applying for withholding of removal under section
                241(b)(3)(A) of the INA, 8 U.S.C. 1231(b)(3)(A), and protection under
                the regulations implementing CAT. The purpose of section 208(a)(2)(A)--
                and an agreement between the United States and another country formed
                thereunder--is to vest ``one country or the other (but not both) [with
                the] responsibility for processing'' an alien's claims related to fear
                of persecution or torture in the alien's home country. Implementation
                of the Agreement Between the Government of the United States of America
                and the Government of Canada Regarding Asylum Claims Made in Transit
                and at Land Border Ports-of-Entry, 69 FR at 10620 (DHS) (proposed
                rule). That purpose would be defeated if, even when section
                208(a)(2)(A) and an ACA made another country responsible for
                adjudicating an alien's asylum claim, the United States remained
                responsible for adjudicating his or her claims for withholding of
                removal and CAT protection. Moreover, even if the United States granted
                an alien's claims to withholding of removal or CAT protection, thereby
                eliminating the possibility of removal to the alien's home country,
                ``[n]othing . . . [would] prevent the [United States] from removing
                [the] alien to a third country''--including a country that is a
                signatory to an applicable ACA. 8 CFR 208.16(f), 1208.16(f). Because
                the alien could be removed to a third country pursuant to an ACA
                regardless of the eventual outcome of his or her withholding-of-removal
                or CAT protection claims, Congress cannot have intended to require DHS
                and DOJ to adjudicate those claims before effectuating such a removal.
                See Asylum Claims Made by Aliens Arriving from Canada at Land Border
                Ports-of-Entry, 69 FR at 69492-93 (DOJ) (for similar reasons,
                concluding that, if the U.S.-Canada Agreement bars an alien from
                applying for asylum in the United States, the alien is also barred from
                applying for withholding of removal and CAT protection).
                C. Consistency With International Practice
                 The INA's ACA provision embodies the policy aim of entering into
                bilateral or multilateral agreements to promote burden-sharing between
                the United States and other countries with respect to refugee
                protection. The U.S. efforts to formulate ACAs with foreign countries
                is in keeping with the efforts of other liberal democracies to
                formulate cooperative arrangements in which multiple countries agree to
                share the review of refugee claims for protection.
                 For example, in 1990, European countries adopted the Dublin
                Regulation in response to an asylum crisis as refugees and economic
                migrants fled communism at the end of the Cold War; it came into force
                in 1997. See Convention Determining the State Responsible for Examining
                Applications for Asylum Lodged in One of the Member States of the
                European Communities, 1997 O.J. (C 254). The United Nations High
                Commissioner for Refugees (``UNHCR'') praised the Dublin Regulation's
                ``commendable efforts to share and allocate the burden of review of
                refugee and asylum claims.'' UNHCR Position on Conventions Recently
                Concluded in Europe (Dublin and Schengen Conventions), 3 Eur. Series 2,
                385 (1991). Now in its third iteration, the Dublin III Regulation sets
                asylum criteria and protocol for the European Union (``EU''). It
                instructs that asylum claims ``shall be examined by a single Member
                State.'' Regulation (EU) No. 604/2013 of the European Parliament and of
                the Council of 26 June 2013, Establishing the Criteria and Mechanisms
                for Determining the Member State Responsible for Examining an
                Application for International Protection Lodged in One of the Member
                States by a Third-Country National or a Stateless Person (Recast), 2013
                O.J. (L 180) 31, 37.
                 UNHCR likewise generally has accepted the safe third country
                concept as consonant with international refugee law principles. 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 (Apr. 2018), available at http://www.refworld.org/pdfid/5acb33ad4.pdf. According to UNHCR, ``refugees do
                not have an unfettered right to choose their `asylum country.' '' Id.
                at 1 & n.1 (citing UNHCR, Guidance Note on bilateral and/or
                multilateral transfer arrangements of asylum-seekers, May 2013, para.
                3(i), http://www.refworld.org/docid/51af82794.html; UNHCR, Summary
                Conclusions on the Concept of ``Effective Protection'' in the Context
                of Secondary Movements of Refugees and Asylum-Seekers (Lisbon Expert
                Roundtable, 9-10 December 2002), Feb. 2003, para. 11, http://www.refworld.org/docid/3fe9981e4.html). Instead, ``[r]efugees may be
                returned or transferred to a state where they had found, could have
                found or, pursuant to a formal agreement, can find international
                protection. The 1951 Convention relating to the Status of Refugees and
                its 1967 Protocol do not prohibit such return or transfer.'' \10\ Id.
                at 1.
                ---------------------------------------------------------------------------
                 \10\ Formal advisory opinions of UNHCR are not binding on the
                United States, but they have been recognized as useful aids in
                interpreting the 1951 Convention and 1967 Protocol. See, e.g., INS
                v. Aguirre-Aguirre, 526 U.S. 415, 427-28 (1999).
                ---------------------------------------------------------------------------
                D. The U.S-Canada Agreement and Its Implementing Regulations
                 Section 208(a)(2)(A) itself does not mandate a particular set of
                procedures for determining whether the section's requirements are
                satisfied--and thus whether an alien is barred from applying for
                asylum. The ample regulatory flexibility that section 208(a)(2)(A)
                affords the Departments has been utilized in the regulations
                implementing the U.S.-Canada Agreement.
                 In those regulations, the Attorney General and Secretary made an
                across-the-board determination that all aliens removed to Canada
                pursuant to the U.S.-Canada Agreement would have ``access to a full and
                fair procedure'' for adjudicating their asylum claims within the
                meaning of INA section 208(a)(2)(A). In reaching that across-the-board
                finding, the Departments clarified that
                [[Page 64001]]
                ``harmonization of asylum laws and procedures is not a prerequisite to
                entering into responsibility-sharing arrangements'' under INA section
                208(a)(2)(A). Implementation of the Agreement Between the Government of
                the United States of America and the Government of Canada Regarding
                Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
                at 10620 (DHS) (proposed rule). Rather, ``[t]he salient factor is
                whether the countries sharing responsibility for refugee protection
                have laws and mechanisms in place that adhere to their international
                obligations to protect refugees.'' Id.
                 In contrast to the categorical finding on the full-and-fair-
                procedure requirement in the 2004 rule, the implementing regulations
                for the U.S.-Canada Agreement call for individualized determinations as
                to whether an alien falls within the terms of the Agreement, and, if
                so, whether the alien qualifies for one of the Agreement's exceptions.
                Specifically, with respect to ER, the regulations provide that, when an
                alien seeks to apply for asylum, the asylum officer must first
                determine whether the alien falls within one of the classes generally
                subject to the Agreement--that is, ``whether [the] alien arriv[ed] in
                the United States at a U.S.-Canada land border port-of-entry or in
                transit through the U.S. during removal by Canada.'' Implementation of
                the Agreement Between the Government of the United States of America
                and the Government of Canada Regarding Asylum Claims Made in Transit
                and at Land Border Ports-of-Entry, 69 FR at 69489 (DHS) (codified at 8
                CFR 208.30(e)(6)). If so, the asylum officer must then determine
                whether ``the alien [can] establish[] by a preponderance of the
                evidence that he or she qualifies for an exception under the terms of
                the Agreement''--including the exception applicable where certain DHS
                officials have determined that it is in the public interest for the
                alien to have his asylum claim heard in the United States. Id.
                (codified at 8 CFR 208.30(e)(6)(ii), (iii)(F)).
                 If the asylum officer determines that the alien is not subject to
                the Agreement, or meets an exception, the asylum officer proceeds to
                conduct a credible fear interview. Id. (codified at 8 CFR
                208.30(e)(6)(ii)). But if the asylum officer determines that the alien
                is subject to the Agreement, and does not meet an exception, the asylum
                officer submits his or her findings to a ``supervisory asylum
                officer.'' Id. (codified at 8 CFR 208.30(e)(6)(i)). If that supervisory
                officer concurs, the alien is barred from applying for asylum in the
                United States. And if the alien is so barred, he or she can be removed
                to Canada without any further administrative review by an IJ or the
                BIA. Asylum Claims Made by Aliens Arriving From Canada at Land Border
                Ports-of-Entry, 69 FR at 69496 (DOJ) (codified at 8 CFR 1003.42(h)).
                 The regulations governing INA section 240 proceedings are similar.
                They require an IJ--after determining that an alien is inadmissible or
                deportable, but before assessing the merits of the alien's claims for
                asylum, withholding of removal, or protection under the regulations
                implementing CAT--to determine whether the U.S.-Canada Agreement
                ``appl[ies] to the alien'' and whether ``[t]he alien qualifies for an
                exception to the Agreement.'' Id. at 69497 (codified at 8 CFR
                1240.11(g)(2)(i)-(ii)). If the Agreement does not apply, or the alien
                meets an exception, the IJ assesses the alien's claims for relief as
                usual. Id. (codified at 8 CFR 1240.11(g)(1)). But if the Agreement
                applies, and the alien does not meet an exception, the IJ does not
                assess the merits of any potential statutory withholding-of-removal or
                CAT claim and instead may order the alien removed, with the proviso
                that the alien may apply for any other relief from removal for which
                the alien may be eligible. Id. (codified at 8 CFR 1240.11(g)(4)).
                V. Detailed Discussion of Regulatory Changes
                A. Summary of the New and Amended Regulatory Provisions and Their
                Import
                 Despite the existence of regulations effectuating the U.S.-Canada
                Agreement within the ER and INA section 240 frameworks, this rule is
                necessary because several of the current implementing regulations are
                specific to the U.S.-Canada Agreement, see Implementation of the
                Agreement Between the Government of the United States of America and
                the Government of Canada Regarding Asylum Claims Made in Transit and at
                Land Border Ports-of-Entry, 69 FR at 10620 (DHS) (proposed rule); id.
                at 69480 (DHS), and Canada is specially situated in a number of ways
                including its shared border with the United States. In addition, this
                rule provides for individualized screening of claims by aliens that
                they will face persecution or torture in the third country to which
                they would be removed pursuant to an ACA other than the U.S.-Canada
                Agreement.
                 The scope of the U.S.-Canada Agreement, and, consequently, the
                U.S.-Canada Agreement regulations, is limited to aliens arriving at
                ports of entry along the U.S. border with Canada. In contrast, this
                generalized rule for the implementation of all ACAs (with countries
                other than Canada) will cover ACAs to the full extent permitted by
                section 208(a)(2)(A), which contains no limitation to only those aliens
                who have transited through the relevant third country or who arrive at
                ports of entry. To accommodate for the expanded applicability of the
                ACAs implemented under this current rule beyond the narrower class of
                aliens subject to the U.S.-Canada Agreement after traveling through
                Canada, this rule expands the threshold screening of aliens potentially
                subject to ACAs other than the U.S.-Canada Agreement. The rule gives
                aliens subject to an ACA an opportunity, during threshold screening, to
                establish that it would be ``more likely than not'' that the alien's
                life or freedom would be threatened in the third country on account of
                a protected ground or that the alien would be tortured in the third
                country. If DHS officers or IJs determine that an alien establishes
                such a fear by a preponderance of the evidence, the alien will not be
                removed to the third country pursuant to the ACA formed with that
                particular country. Cf. INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)
                (eliminating the opportunity to apply for asylum in the United States
                ``if the Attorney General [or Secretary] determines that the alien may
                be removed, pursuant to a bilateral or multilateral agreement, to a
                country (other than the country of the alien's nationality or, in the
                case of an alien having no nationality, the country of the alien's last
                habitual residence) in which 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,'' among other required
                determinations described elsewhere in this rule).
                 In contrast to many of the countries listed as potential countries
                of removal in section 241(b) of the INA, the third country to which an
                alien would be removed under an ACA is a country to which an alien does
                not necessarily have preexisting ties or any preexisting reason to fear
                persecution or torture. Compare INA 208(a)(2)(A), 8 U.S.C.
                1158(a)(2)(A), with INA 241(b)(1)-(2), 8 U.S.C. 1231(b)(1)-(2).
                Moreover, unlike the countries to which aliens typically would be
                removed under section 241(b) of the INA, these third countries of
                removal would have pre-committed, per binding agreements with the
                United States, to provide access to a ``full and fair procedure'' for
                the alien to acquire ``asylum or equivalent temporary
                [[Page 64002]]
                protection,'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). Aliens subject
                to an ACA thus would have an avenue for protection in the third country
                of removal not necessarily available in an INA section 241(b) country
                of removal--a country that may not have entered a binding agreement to
                provide the alien procedures for requesting safe haven and that may
                have originally prompted the alien's flight and application for asylum.
                 This rule retains the existing regulations implementing the U.S.-
                Canada Agreement, while also crafting a new regulatory framework under
                which other ACAs will be implemented. Even though the regulatory
                framework for implementation of the new ACAs will differ in some
                significant respects from the earlier 2004 regulations, in part for the
                reasons described above, this rule also replicates several key aspects
                of implementation of the U.S.-Canada Agreement. First, as with the
                regulatory scheme for the U.S.-Canada Agreement, prior to
                implementation of an ACA subject to this rule, the Departments will
                make a generalized determination as to whether the third country grants
                asylum seekers ``access to a full and fair procedure'' within the
                meaning of INA 208(a)(2)(A). This finding is required by the text of
                section 208(a)(2)(A), and the Departments will make the ``full and
                fair'' third country determination separate and apart from the
                regulatory provisions provided for here, to address this threshold
                statutory element that must be satisfied before any section
                208(a)(2)(A) bilateral or multilateral agreement is effectuated.
                Second, under this rule, there will be an individualized screening
                process within the preexisting ER and INA section 240 frameworks to
                evaluate whether an alien falls within the terms of an agreement and,
                if so, whether the alien nonetheless meets one of its exceptions. The
                statute also provides an exception to the terms of an ACA in the event
                that the Secretary determines in the Secretary's discretion that ``it
                is in the public interest for the alien to receive asylum in the United
                States.'' INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A). As under the U.S.-
                Canada Agreement, the public interest exception is to be applied on a
                case-by-case basis, as a matter of discretion, to permit certain
                individuals to pursue applications for asylum or withholding of removal
                in the United States, where the Secretary or his immigration officers
                ``find[] that it is in the public interest for the alien to receive
                asylum in the United States.'' See INA 208(a)(2)(A), 8 U.S.C.
                1158(a)(2)(A); cf. 8 CFR 208.30(e)(6)(iii)(F). Application of the
                exception is ``solely within the discretion of DHS.'' Asylum Claims
                Made by Aliens Arriving from Canada at Land Border Ports-of-Entry, 69
                FR at 10628, 10630 (DOJ) (proposed rule); see also INA 208(a)(3), 8
                U.S.C. 1158(a)(3) (``No court shall have jurisdiction to review any
                determination of the Attorney General [or Secretary] under paragraph
                (2).'').
                 As with the regulations implementing the U.S.-Canada Agreement,
                this rule will implement the statutory requirements into its threshold
                screening mechanism for evaluating which aliens are barred from
                applying for asylum under an ACA. The applicability of any additional
                limitations on the categories of aliens subject to the terms of a
                particular ACA will also be assessed during the initial screening. If
                an ACA is determined to be applicable to an alien applying for asylum,
                and the alien does not demonstrate that his life or freedom will more
                likely than not be threatened in the third country, the immigration
                officer may proceed to order removal without consideration of asylum,
                withholding-of-removal, or CAT claims, analogous to the U.S.-Canada
                Agreement removal arrangements. See Implementation of the Agreement
                Between the Government of the United States of America and the
                Government of Canada Regarding Asylum Claims Made in Transit and at
                Land Border Ports-of-Entry, 69 FR at 69481 (DHS) (``[A] careful reading
                of the Act makes clear that credible fear interviews are not required
                for aliens subject to [ACAs].'').
                 The U.S.-Canada Agreement applies only to aliens who had arrived in
                the United States to seek asylum after traveling through Canada.
                However, the terms of section 208(a)(2)(A) do not limit the
                applicability of ACAs to aliens who have traveled through the third
                country in transit to the United States. Consequently, in contrast to
                the U.S.-Canada provisions, this rule provides that the screening
                procedures for ACAs with countries other than Canada (which, with one
                possible exception, would not be contiguous to the United States) will
                afford aliens an opportunity to establish that it is more likely than
                not that they would be persecuted or tortured if removed to the
                applicable third country. It provides an additional screening component
                enabling asylum officers and IJs to assess whether an alien who
                affirmatively states a fear of removal to the signatory country under
                an applicable ACA would more likely than not be persecuted or tortured
                in such country.
                B. New 8 CFR 208.30(e)(7)
                 The regulations at 8 CFR 208.30 govern interviews, conducted by DHS
                asylum officers, of stowaways and aliens subject to ER. See 8 CFR
                208.30(a). New paragraph (e)(7) requires an asylum officer, in an
                appropriate case, to make several threshold screening determinations
                before assessing the merits of an alien's claims for asylum,
                withholding of removal, or CAT protection. First, the asylum officer
                must determine whether the alien is subject to one or more ACAs.
                Second, if so, the officer must determine whether the alien meets any
                exception to the applicable agreement(s)--including the public-interest
                exception, which, under section 208(a)(2)(A), all ACAs must contain. If
                the alien is not subject to any ACA, or the alien meets an exception to
                each applicable agreement, the asylum officer will assess the merits of
                the alien's claims for relief as usual--that is, assess whether the
                alien has a credible fear of persecution or torture under existing
                paragraphs (e)(2) and (3). But if the alien is subject to an ACA, and
                does not meet any exception, the asylum officer will inform the alien
                that he or she is potentially subject to removal to the third country
                signatory to the relevant ACA, and that the third country, rather than
                the United States, will provide access to a full and fair procedure for
                adjudication of the alien's claims.
                 After identifying the third country or countries to which the alien
                may be removed, if the alien does not affirmatively state a fear of
                persecution or torture in, or removal to, the country or countries, the
                asylum officer will refer the determination--i.e., that the alien is
                barred from applying for asylum, withholding of removal, and CAT
                protection in the United States, and subject to removal to the third
                country or countries--to a supervisory officer for review. If the
                supervisory asylum officer disagrees, that officer will remand the case
                to the asylum officer for a credible fear interview.
                 If, on the other hand, the alien affirmatively states a fear of
                persecution or torture in, or removal to, the third country or
                countries, the asylum officer will then determine whether the alien can
                establish, by a preponderance of the evidence, that, if the alien were
                removed to the third country or countries, it is more likely than not
                that he or she would be persecuted on account of a protected ground or
                tortured. If the officer determines the alien has met that burden,
                given that the alien has already been placed into ER proceedings, the
                officer will assess the
                [[Page 64003]]
                merits of the alien's claims for relief and protection as usual--i.e.,
                conduct a normal credible fear interview. But if the officer determines
                the alien has not met that burden, the officer will refer the
                determination to a supervisory asylum officer for review.
                 The threshold screening determinations under the U.S.-Canada
                Agreement regulatory procedures similarly incorporate a preponderance-
                of-the-evidence standard. See 8 CFR 208.30(e)(6)(ii). As under the
                U.S.-Canada screening procedures, in making the threshold
                determinations discussed above, asylum officers ``will use all
                available evidence, including the individual's testimony, affidavits
                and other documentation, as well as available records and databases.''
                Implementation of the Agreement Between the Government of the United
                States of America and the Government of Canada Regarding Asylum Claims
                Made in Transit and at Land Border Ports-of-Entry, 69 FR at 10623 (DHS)
                (proposed rule); see also id. at 69482 (DHS) (``The Department has
                clarified, in the final rule, that the same safeguards accorded to
                aliens who are eligible for a credible fear determination will be
                accorded to aliens who receive threshold screening interviews.''). In
                the asylum officer's discretion, ``[c]redible testimony alone may be
                sufficient'' to meet the alien's burden ``if there is a satisfactory
                explanation of why corroborative documentation is not reasonably
                available.'' Implementation of the Agreement Between the Government of
                the United States of America and the Government of Canada Regarding
                Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
                at 10623 (DHS) (proposed rule). Asylum officers have received
                ``extensive training in evaluating credibility of testimony when there
                is little or no documentation in support of that testimony,'' id., and
                will apply that training to the threshold determination of whether an
                alien falls within the terms of an ACA or an exception and whether the
                alien has established a clear probability of persecution or torture in
                the third country.
                 In contrast to the final rule implementing the U.S.-Canada
                Agreement that provided an alien with a minimal consultation period
                prior to the threshold screening interview to determine the
                applicability of the Agreement, this rule does not mandate such a
                period. See Implementation of the Agreement Between the Government of
                the United States of America and the Government of Canada Regarding
                Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
                at 69482 (DHS) (providing a minimal consultation period but emphasizing
                that the consultation period would not permit the postponement of the
                threshold screening interview process so as not to ``compromise the
                principle underlying the Agreement that aliens be returned promptly to
                the country of last presence''). Rather, this rule expands the
                threshold screening process itself to allow for an alien to demonstrate
                that he or she is ``more likely than not'' to be subject to persecution
                on account of a protected ground or torture in the receiving country
                under the ACA.
                 The bilateral ACAs that the United States has signed as of the
                effective date of this rule include agreements with El Salvador,
                Guatemala, and Honduras and incorporate fewer and less complex
                exceptions than the U.S.-Canada Agreement, eliminating the need for a
                consultation period analogous to the consultation period permitted by
                the U.S.-Canada Agreement.\11\ Further, this rule's expansion of the
                underlying threshold screening procedures to provide an opportunity for
                aliens to establish ``more likely than not'' persecution or torture in
                the receiving country provides additional process beyond that which is
                available under the regulations implementing the U.S.-Canada Agreement.
                ---------------------------------------------------------------------------
                 \11\ Applicability of the exceptions at issue in the non-Canada
                ACAs generally can be evaluated through records checks and by asking
                straightforward biographic questions. Conversely, the exceptions to
                the U.S.-Canada Agreement required more detailed information from
                the alien, such as whether certain family members of the applicant
                are present in the United States, the immigration status of those
                family members, and whether the family members have pending asylum
                applications. See 8 CFR 208.30(e)(6)(iii)(A)-(F). Should the U.S.
                enter into additional ACAs in the future having exceptions that
                mirror the complexity of those contained in the U.S.-Canada
                Agreement, DHS could choose to establish consultation periods as
                needed.
                ---------------------------------------------------------------------------
                 Although section 208(a)(2)(A) is silent with respect to which party
                bears the burden of showing the applicability (or inapplicability) of
                the bar and the appropriate standard of proof for such a showing,
                section 208(b)(1) indicates that the ultimate burden of proof in
                establishing asylum eligibility is on the applicant. See INA
                208(b)(1)(A)-(B), 8 U.S.C. 1158(b)(1)(A)-(B) (authorizing a grant of
                asylum to an alien who meets the burden of establishing that he or she
                is a refugee). Moreover, the section 208(a)(2)(A) language regarding
                protection against harm from the third country of removal is parallel
                to the section 241(b)(3) language establishing withholding-of-removal
                protection with respect to the typical potential countries of removal
                specified by INA sections 241(b)(1) and (2). When evaluating whether an
                alien is entitled to withholding of removal under INA 241(b)(3) or
                evaluating a claim for protection under the regulations implementing
                CAT, an IJ addresses whether an alien has established the relevant fear
                by a preponderance of the evidence. See 8 CFR 1208.16(b)-(c). It is
                therefore reasonable to require an alien to show, by a preponderance of
                the evidence, that he or she meets an exception to an otherwise
                applicable ACA, and that he or she would face harm in the third
                country. See Implementation of the Agreement Between the Government of
                the United States of America and the Government of Canada Regarding
                Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 FR
                at 69483 (DHS) (reasoning that, because ``applicants for asylum,
                withholding of removal, and protection under [CAT] bear the burden of
                proof,'' it is reasonable for aliens to bear ``the burden of proof for
                purposes of establishing that an exception to the [U.S.-Canada]
                Agreement applies'').
                C. Amended 8 CFR 1003.42(h)(1)-(2) and New 8 CFR 1003.42(h)(3)-(4)
                 This rule will amend 8 CFR 1003.42(h) to reflect the implementation
                of ACAs other than the U.S.-Canada Agreement. In particular, the rule
                will make technical amendments to 8 CFR 1003.42(h)(1) and (2) to
                clarify that those paragraphs apply to only the preexisting U.S.-Canada
                Agreement. The rule creates new 8 CFR 1003.42(h)(3) and (4) to reflect
                the distinction that the threshold officer screening in the non-Canada
                ACAs includes an opportunity for the alien to establish that it is more
                likely than not that he or she would be persecuted on account of a
                protected ground or tortured. Under the new paragraph (h)(3), an IJ is
                prohibited from reviewing an officer's determination that section
                208(a)(2)(A) bars an alien from applying for asylum. But an IJ acquires
                jurisdiction to review a negative credible fear finding in any case
                where an alien either establishes that he or she qualifies for an ACA
                exception, or establishes more-likely-than-not harm in the relevant
                third country, thus prohibiting the application of the ACA to that
                alien. (In such a case, the asylum officer would apply typical credible
                fear screening to the alien, giving an IJ jurisdiction to review a
                negative finding by that officer.) The new (h)(4) clarifies that an
                alien subject to removal under an ACA is ineligible to apply for
                withholding-of-removal and CAT relief in the United States, along with
                asylum, as explained in the detailed legal background section of the
                rule.
                [[Page 64004]]
                 This IFR preserves the general review framework currently
                underlying 8 CFR 1003.42(h)(1), which provides that an IJ lacks
                jurisdiction to review an asylum officer's determination that the U.S.-
                Canada Agreement bars an alien from applying for asylum in the United
                States and makes them removable to Canada for adjudication of his or
                her claim for asylum or equivalent protection. In proposing a framework
                for implementing the U.S.-Canada Agreement, DOJ noted that, in a given
                case, the asylum officer would be making an individualized
                determination only as to whether the Agreement (or any of its
                exceptions) applied to the alien. Asylum Claims Made by Aliens Arriving
                from Canada at Land Border Ports-of-Entry, 69 FR at 10630 (DOJ)
                (proposed rule). Given the ``narrowness of the factual issues''
                underlying such a determination, DOJ determined that review by an IJ
                was unnecessary. Id.
                 DOJ suggested the analysis might be different if an asylum officer
                were evaluating ``the merits of an . . . alien's asylum claims.'' Id.
                And under this IFR, an asylum officer does need to determine whether
                the alien would more likely than not be persecuted or tortured in the
                third country to which he or she would be removed under an ACA. But
                when evaluating an asylum claim on the merits, an asylum officer or IJ
                is often forced to make a complex assessment as to whether wrongs done
                to the asylum seeker (or those similarly situated) in the asylum
                seeker's home country were motivated by animus against a protected
                group or some other factor. In contrast, evaluating whether an asylum
                seeker would face persecution or torture in a country to which he has
                no substantial connections is more straightforward. The third country
                with which the United States has formed an ACA is, by definition, not
                an alien's country of nationality or last habitual residence. See INA
                208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A) (authorizing ACA removal only to
                countries other than that of the alien's nationality or last habitual
                residence, if the alien has no nationality). And, thus, the country of
                removal under an ACA is not the country originally prompting the asylum
                seeker's claim, unlike the potential countries of removal under section
                241(b)(1)-(2) to which section 241(b)(3) withholding of removal claims
                are directed, see 8 U.S.C. 1231(b)(1)-(2) (providing, e.g., for an
                alien to be removed to the country in which he or she boarded a vessel
                or aircraft to reach the United States or the country in which he or
                she is a citizen or was born or has a residence). Because the ACA
                country of removal did not prompt the alien's claim, the process for
                determining simply whether to send the alien to a third country for
                that consideration is reasonably more minimalistic than the requisite
                procedures for deciding asylum and withholding of removal claims on the
                merits.
                 Finally, Congress chose not to mandate IJ review of decisions as to
                whether an alien is subject to an ACA. Yet, in the same legislation
                creating section 208(a)(2)(A), Congress created the ER process. See
                Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
                Public Law 104-208, sec. 302 and 604, 110 Stat. 3009-546, -579, -690.
                And in that process, Congress expressly mandated IJ review (at the
                request of the alien) of a negative credible fear determination by an
                asylum officer. Compare INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A) with
                INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). That
                difference strongly suggests that Congress did not intend to require IJ
                review of decisions by asylum officers as to whether aliens are barred
                from applying for asylum under section 208(a)(2)(A).
                 Therefore, it is unnecessary--and indeed would be inconsistent with
                the INA removal statutory scheme--to mandate IJ review of a
                determination that section 208(a)(2)(A) bars an alien from applying for
                asylum. In section 208(a)(2)(A), Congress authorized the Executive
                Branch to operate within the President's foreign affairs authority to
                enter international agreements more evenly distributing the load of
                providing access to potential asylum for international refugees and
                asylees. By its terms, section 208(a)(2)(A) preserves flexibility for
                the Executive Branch in entering such agreements. The provision imposes
                two clear requirements, limiting such international agreements only to
                countries that provide access to full and fair protection procedures
                and are places in which an alien's life or freedom would not be harmed
                on account of a protected ground. Beyond those specifications, the
                Executive Branch's utilization of its statutory authority under section
                208(a)(2)(A) is subject to no express procedural stipulations.
                 In any event, this rule preserves unchanged the existing credible
                fear process itself, including the statutorily required availability of
                review by an IJ. So, if an asylum officer determines that an alien
                subject to the terms of an ACA bar would more likely than not be
                persecuted or tortured in the third country or, for any reason, that
                the ACA does not prohibit the alien's U.S. asylum application, the
                officer will then proceed immediately to a credible fear determination.
                If necessary, as required by statute and preexisting regulations, an IJ
                will conduct a review of this determination.
                D. Amended 8 CFR 1240.11(g) and New 8 CFR 1240.11(h)
                 This rule will amend 8 CFR 1240.11(g) to reflect that the section
                will now apply only to the U.S.-Canada Agreement. The rule will also
                create a new 8 CFR 1240.11(h) to provide for the implementation of all
                other existing and future ACAs within the context of section 240
                proceedings. Similar to the threshold determinations that asylum
                officers must make in ER proceedings, as described above, this new
                regulatory section will require IJs to determine whether an alien falls
                within an exception to an otherwise applicable ACA, and will authorize
                IJs to provide an alien subject to the terms of an ACA an opportunity
                to establish that it is more likely than not that the alien would be
                persecuted on account of a protected ground or tortured in the
                applicable third country.
                VI. Regulatory Requirements
                A. Administrative Procedure Act
                 The Departments' decision to promulgate the regulations
                implementing the U.S.-Canada Agreement through formal notice-and-
                comment rulemaking does not obligate the Departments to do so here.
                See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 171-72 (7th
                Cir. 1996) (observing that courts should ``attach no weight'' to an
                agency's varied approaches to the use of notice-and-comment rulemaking
                involving similar rules and that ``there is nothing in the
                [Administrative Procedure Act (``APA'')] to forbid an agency to use the
                notice and comment procedure in cases in which it is not required to do
                so''); Indep. Living Res. v. Or. Arena Corp., 982 F. Supp. 698, 744
                n.62 (D. Or. 1997) (``There are many reasons why an agency may
                voluntarily elect to utilize notice and comment rulemaking . . . .'').
                For the reasons that follow, the Departments are issuing this rule as
                an interim final rule pursuant to the APA's exemption from notice-and-
                comment requirements for rules involving ``foreign affairs
                function[s]'' and the ``good cause'' exception for rules with respect
                to which ``notice and public procedure'' is ``impracticable,
                unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(a)(1),
                (b)(B).
                [[Page 64005]]
                1. Foreign Affairs Exemption
                 The Departments may forgo notice-and-comment procedures and a delay
                in the effective date of this rule because the rule involves a
                ``foreign affairs function of the United States,'' and thus is exempt
                from the procedural requirements of 5 U.S.C. 553. See id. 553(a)(1).
                This rule puts into effect ACAs already negotiated with El Salvador,
                Guatemala, and Honduras, and will remove obstacles to successfully
                negotiating ACAs with other countries. This rule is thus similar to
                others that courts have determined are within the scope of the foreign
                affairs exemption and is likewise exempt from notice-and-comment
                rulemaking requirements and the required delay in the effective date.
                See, e.g., Int'l Bhd. of Teamsters v. Pe[ntilde]a, 17 F.3d 1478, 1486
                (D.C. Cir. 1994) (holding that a Federal Highway Administration rule
                ``implement[ing] an agreement between the United States and Mexico''
                was necessary for the United States to avoid ``reneging on [its]
                international obligations'' and thus was appropriately promulgated
                under the foreign affairs exemption of the APA); City of New York v.
                Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d
                Cir. 2010) (quoting the description of the purpose of the foreign
                affairs exemption in H.R. Rep. No. 79-1980, at 23 (1946)).
                 This rule will facilitate ongoing diplomatic negotiations with
                foreign countries regarding migration issues, including measures to
                control the flow of aliens into the United States. See City of New
                York, 618 F.3d at 201 (finding that rules related to diplomacy with a
                potential impact on U.S. relations with specific other countries fall
                within the scope of the foreign affairs exemption). Those ongoing
                discussions relate to proposals for increased efforts by third
                countries to help reduce the flow of illegal aliens north to the United
                States and to join the United States in shouldering the load of
                providing asylum procedures, and possible relief or protection, to the
                migrants from around the world flocking to U.S. borders. See Yassini v.
                Crosland, 618 F.2d 1356, 1361 (9th Cir. 1980) (per curiam) (because an
                immigration directive ``was implementing the President's foreign
                policy,'' the action ``fell within the foreign affairs function and
                good cause exceptions to the notice and comment requirements of the
                APA'').
                 In the latter half of 2019, U.S. officials entered into agreements
                with El Salvador, Guatemala, and Honduras pursuant to INA 208(a)(2)(A).
                U.S. officials remain in negotiations with other nations to enter into
                additional ACAs. Delaying the implementation of the rule due to notice-
                and-comment rulemaking could impact the ability of the United States to
                negotiate by creating uncertainty about the regulatory framework that
                the United States will have in place to carry out such agreements. See
                East Bay I, 909 F.3d at 1252-53 (suggesting that reliance on the
                exemption is justified where the Government ``explain[s] how immediate
                publication of the Rule, instead of announcement of a proposed rule
                followed by a thirty-day period of notice and comment'' is necessary in
                light of the Government's foreign affairs efforts). Potential
                signatories to such agreements may be more hesitant to negotiate with
                the United States and to rely on a commitment by the United States to
                meet the terms of negotiated agreements if the regulatory framework to
                carry out such agreements is uncertain and not yet in place.
                 The terms of some of the current ACAs have been contingent on the
                signing countries exchanging diplomatic notes certifying that each
                country has put in place the legal framework necessary to effectuate
                and operationalize the agreement. The United States will have a
                stronger negotiating position in entering additional agreements if a
                domestic regulatory framework is already in effect during the
                negotiations. The circumstances of the U.S.-Canada Agreement underscore
                this reality, as a period of nearly two years passed between the
                formation of the agreement and its effectuation through the
                promulgation of final rules. That delay was not as problematic in the
                context of U.S.-Canada relations, as comparatively few aliens are
                subject to the U.S.-Canada Agreement. In contrast, a far greater number
                of aliens arriving at the southern border will be affected by the non-
                Canada ACAs currently under development. To bring the numbers of U.S.
                asylum applicants to a more manageable level, and to have a strong
                negotiating position with other potential third countries, the United
                States needs the flexibility to effectuate the current ACAs much more
                rapidly than the two-year time period that transpired between the
                signing and execution of the U.S.-Canada Agreement. Further, countries
                that sign ACAs with the United States may be deterred from sustaining
                their commitments to the agreements if the United States materially
                delays its operationalization after representing to those countries
                that their entry into these agreements is an urgent U.S. priority. Cf.
                E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 776 (9th Cir. 2018)
                (``East Bay I'') (``Hindering the President's ability to implement a
                new policy in response to a current foreign affairs crisis is the type
                of `definitely undesirable international consequence' that warrants
                invocation of the foreign affairs exception.'').
                 Similarly, a delayed effective date for the rule may weaken the
                facility of the United States to pursue the negotiating strategy it
                deems to be most appropriate as it engages its foreign partners. See,
                e.g., Am. Ass'n of Exps. & Imps.-Textile & Apparel Grp. v. United
                States, 751 F.2d 1239, 1249 (Fed. Cir. 1985) (the foreign affairs
                exemption facilitates ``more cautious and sensitive consideration of
                those matters which so affect relations with other Governments that . .
                . public rule-making provisions would provoke definitely undesirable
                international consequences'' (internal quotation marks omitted)). In
                addition, addressing this crisis will be more effective and less
                disruptive to long-term U.S. relations with Mexico \12\ and the
                Northern Triangle countries the sooner that this interim final rule is
                in place, as it will help address the enormous flow of aliens through
                these countries to the southern border, where aliens seeking ultimately
                meritless asylum claims continue to strain resources and contribute to
                a national security and humanitarian crisis. Cf. id. (``The timing of
                an announcement of new consultations or quotas may be linked intimately
                with the Government's overall political agenda concerning relations
                with another country.''). Further, the efficient implementation of this
                interim rule will improve the ability of the United States to negotiate
                successfully with these and potentially other countries. See Rajah v.
                Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (finding that the notice-and-
                comment process can be ``slow and cumbersome,'' which can negatively
                affect efforts to secure U.S. national interests, thereby justifying
                application of the foreign affairs exemption).
                ---------------------------------------------------------------------------
                 \12\ The United States and Mexico have been engaged in ongoing
                discussions regarding both regional and bilateral approaches to
                asylum. See, e.g., Secretary Nielsen Meets with Mexican Officials on
                Border Emergency, Travels to Honduras to Meet with Northern Triangle
                Governments to Address Crisis at Source (Mar. 26, 2019), available
                at http://www.dhs.gov/news/2019/03/26/secretary-nielsen-meets-mexican-officials-border-emergency-travels-honduras-meet.
                ---------------------------------------------------------------------------
                 This rule supports the President's foreign policy with respect to
                Mexico, the Northern Triangle countries, and other potential partner
                countries in this area and thus is exempt from the notice-and-comment
                and delayed-effective-
                [[Page 64006]]
                date requirements in 5 U.S.C. 553. See Am. Ass'n of Exps. & Imps.-
                Textile & Apparel Grp., 751 F.2d at 1249; Yassini, 618 F.2d at 1361.
                 Invoking the APA's foreign affairs exemption is also consistent
                with past rulemakings. In 2016, for example, in response to diplomatic
                developments between the United States and Cuba, DHS changed its
                regulations concerning flights to and from the island via an
                immediately effective interim final rule. Flights to and From Cuba, 81
                FR 14948, 14952 (Mar. 21, 2016). In a similar vein, DHS, in
                consultation with the Department of State, recently provided notice
                that it was eliminating an exception to expedited removal for certain
                Cuban nationals. The document explained that the change in policy was
                consistent with the foreign affairs exemption for rules subject to
                notice-and-comment requirements because the change was central to
                ongoing negotiations between the two countries. Eliminating Exception
                To Expedited Removal Authority for Cuban Nationals Encountered in the
                United States or Arriving by Sea, 82 FR 4902, 4904-05 (Jan. 17, 2017).
                 Some courts have layered onto the foreign affairs exemption a
                requirement that the agency show not merely that the rule implicates
                foreign affairs, but also that the use of notice-and-comment procedures
                would ``provoke definitely undesirable international consequences.''
                See, e.g., East Bay I, 932 F.3d at 775-76 (internal quotation marks
                omitted). As explained above, even this constraint on application of
                the APA foreign affairs exemption is satisfied here, as a delayed
                effective date for this rule could have far-reaching consequences for
                the strength of the negotiating position of the United States in
                relation to potential signatories of future ACAs.
                2. Good Cause Exception
                 Alternatively, the Departments may forgo notice-and-comment
                rulemaking and a delayed effective date while this rulemaking is
                published in the Federal Register for public comment, because the APA
                provides an exception from those requirements when an agency ``for good
                cause finds . . . that notice and public procedure thereon are
                impracticable, unnecessary, or contrary to the public interest.'' 5
                U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3). This exception relieves
                agencies of notice-and-comment requirements in urgent situations, or in
                circumstances where ``the delay created by the notice and comment
                requirements would result in serious damage to important interests.''
                Woods Psychiatric Inst. v. United States, 20 Cl. Ct. 324, 333 (1990),
                aff'd, 925 F.2d 1454 (Fed. Cir. 1991); see also Nat'l Fed'n of Fed.
                Emps. v. Devine, 671 F.2d 607, 611-12 (D.C. Cir. 1982); United States
                v. Dean, 604 F.3d 1275, 1279 (11th Cir. 2010). On multiple occasions,
                agencies have relied on this exception to promulgate immigration-
                related interim rules.\13\
                ---------------------------------------------------------------------------
                 \13\ See, e.g., Visas: Documentation of Nonimmigrants Under the
                Immigration and Nationality Act, as Amended, 81 FR 5906, 5907 (Feb.
                4, 2016) (interim rule citing good cause to immediately require a
                passport and visa from certain H2-A Caribbean agricultural workers
                to avoid ``an increase in applications for admission in bad faith by
                persons who would otherwise have been denied visas and are seeking
                to avoid the visa requirement and consular screening process during
                the period between the publication of a proposed and a final
                rule''); Suspending the 30-Day and Annual Interview Requirements
                From the Special Registration Process for Certain Nonimmigrants, 68
                FR 67578, 67581 (Dec. 2, 2003) (interim rule claiming the good cause
                exception for suspending certain automatic registration requirements
                for nonimmigrants because ``without [the] regulation approximately
                82,532 aliens would be subject to 30-day or annual re-registration
                interviews'' over a six-month period).
                ---------------------------------------------------------------------------
                 The Departments have concluded that the good cause exceptions in 5
                U.S.C. 553(b)(B) and (d)(3) apply to this rule. Delaying implementation
                of this rule until the conclusion of notice-and-comment procedures and
                the 30-day delayed effective date would be impracticable and contrary
                to the public interest. In rejecting challenges to the prior use of
                interim rules, courts have cited evidence that pre-publication of a
                significant change in asylum procedures will cause migrants to rush to
                U.S. borders. See East Bay I, 354 F. Supp. 3d 1094, 1115 (N.D. Cal.
                2018) (concluding that the Government was ``likely to prevail on its
                claim regarding the good cause exception'' in the context of a November
                2018 interim rule barring asylum eligibility for aliens who, in
                violation of a Presidential proclamation, enter between ports of
                entry); cf. Barr v. East Bay Sanctuary Covenant, (``East Bay II''), No.
                19A230, 588 U.S. __ (Sept. 11, 2019) (granting, without explanation, a
                stay on appeal from a circuit court order that had concluded, in part,
                that the Government had inadequately justified reliance on the good
                cause and foreign affairs APA exemptions in promulgating an IFR).
                Would-be asylum applicants have a strong incentive to intensify their
                efforts to rapidly reach the U.S. border when the United States
                announces a regulatory change that will impact asylum applications.
                See, e.g., Mobil Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492
                (Temp. Emer. Ct. App. 1983) (concluding that good cause exists when
                ``the very announcement'' of a rule could ``be expected to precipitate
                activity by affected parties that would harm the public welfare''); see
                also id. (collecting cases).
                 Here, the announcement that the United States has arranged for
                other countries to consider certain protection applications, in lieu of
                any ability to apply for protection within the United States itself,
                would create a perceived urgency for aliens to enter the United States
                illegally or apply for admission without proper documentation before
                the ACAs take effect. The implementation of ACAs would require
                significant numbers of aliens to file applications for protection in
                third countries rather than the United States. Recent events have shown
                that knowledge of this kind of impending change is highly likely to
                cause a dramatic increase in the numbers of aliens who enter or attempt
                to enter the United States to file asylum applications before the
                effective date of the change. For example, over a one-year period from
                2018 to 2019, southwestern-border family-unit apprehensions rose 469
                percent. See Application for a Stay Pending Appeal at 24, Barr v. East
                Bay Sanctuary Covenant, No. 19A230 (U.S. Aug. 26, 2019) (``Stay
                Application, East Bay II'') (citing Administrative Record at 233, East
                Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST (N.D. Cal. 2019)
                (``A.R., East Bay II''). And numerous news articles connect such recent
                surges to changes in immigration policy. See Stay Application, East Bay
                II, at 25 (citing A.R., East Bay II, at 438-39 (describing how
                smugglers persuaded migrants to cross the border after family
                separation was halted by telling the migrants to ``hurry up before they
                might start doing so again''); id. at 452-54 (indicating that migrants
                refused offers to stay in Mexico because their goal is to enter the
                United States); id. at 663-665, 683 (indicating that Mexico faced a
                migrant surge when it changed its policies)).
                 Further, as courts have recognized, smugglers encourage migrants to
                enter the United States based on changes in U.S. immigration policy,
                and, in fact, ``the number of asylum seekers entering as families has
                risen'' in a way that ``suggests a link to knowledge of those
                policies.'' East Bay, 354 F. Supp. 3d at 1115. If this rule were
                published for notice and comment before becoming effective, ``smugglers
                might similarly communicate th[is] Rule's potentially relevant change
                in U.S. immigration policy,'' id., and the risk of a surge in migrants
                hoping to enter the country before the rule becomes effective supports
                a finding of good cause under 5 U.S.C. 553.
                [[Page 64007]]
                 Past experience shows that individuals inside and outside of the
                United States change their behavior in anticipation of changes to U.S.
                immigration laws. For example, Central American officials reported that
                after President Donald Trump's victory in the November 2016 election,
                Central Americans began ``crossing illegally into the U.S. at the
                fastest rate in years, many of them hoping to sneak in before Donald
                Trump's presidential inauguration and the heightened border-security
                measures he has promised.'' Robbie Whelan, Central Americans Surge at
                Border Before Trump Takes Over, Wall Street Journal (Dec. 23, 2016),
                http://www.wsj.com/articles/central-americans-surge-at-border-before-trump-takes-over-1482489047. Honduras's deputy foreign minister
                attested, ``We're worried because we're seeing a rise in the flow of
                migrants leaving the country, who have been urged to leave by coyotes
                telling them that they have to reach the United States before Trump
                takes office.'' Gustavo Palencia & Sofia Menchu, Central Americans
                Surge North, Hoping To Reach U.S. Before Trump Inauguration, Reuters
                (Nov. 24, 2016), http://www.reuters.com/article/us-usa-trump-immigration-centralamerica/central-americans-surge-north-hoping-to-reach-u-s-before-trump-inauguration-idUSKBN13J2A7 (internal quotation
                marks omitted). Guatemala's foreign minister similarly stated that
                people were ``leaving Guatemala en masse before Trump becomes
                president.'' Id.
                 The enactment of the Illegal Immigration Reform and Immigration
                Responsibility Act (``IIRIRA''), Public Law 104-208, div. C, 110 Stat.
                3009-546 (1996), similarly prompted immigrants to change their behavior
                and seek to take advantage of the pre-IIRIRA rules. IIRIRA made several
                changes to asylum law. For example, it added three categorical bars to
                asylum: (1) Aliens who can be removed to a safe third country pursuant
                to bilateral or multilateral agreement; (2) aliens who failed to apply
                for asylum within one year of arriving in the United States; and (3)
                aliens who have previously applied for asylum and had the application
                denied. INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C). IIRIRA also
                provided that aggravated felonies, defined in INA 101(a)(43), 8 U.S.C.
                1101(a)(43), would be considered ``particularly serious crime[s]'' that
                render an alien ineligible for asylum. INA 208(b)(2)(B)(i), 8 U.S.C.
                1158(b)(2)(B)(i). IIRIRA was signed into law on September 30, 1996, see
                President William Jefferson Clinton, Statement on Signing H.R. 3610,
                the Omnibus Appropriations Act, 1997 (Sept. 30, 1996), but did not take
                effect until April 1, 1997. Data shows a large spike in asylum
                applications filed just before IIRIRA went into effect and a large dip
                the week it went into effect. See Initial Asylum Receipts by Week,
                April 1, 1994, to March 31, 1997, PASD #19-227, Planning, Analysis, and
                Statistics Division, EOIR (recording 52 successive weeks with fewer
                than 3,000 total ``[i]nitial [a]sylum [r]eceipts,'' spiking to an
                intake of 4,448 new asylum cases the week of Monday, March 24, 1997,
                and then dipping back down to just 1,099 new cases the week of March
                31, 1997). This suggests that some asylum seekers that would have
                otherwise applied in April may have instead applied in March to avoid
                IIRIRA's new rules on asylum.
                 In addition to the factual basis for reliance on the good cause
                exception here, in light of these numerous examples in which
                announcements of U.S. immigration policy changes immediately impacted
                migrant behavior, application of the exception here comports with
                repeated agency practice. For example, in January 2017, DHS concluded
                that it was imperative to give immediate effect to a rule designating
                Cuban nationals arriving by air as eligible for expedited removal
                because ``[p]re-promulgation notice and comment would . . . endanger[ ]
                human life and hav[e] a potential destabilizing effect in the region.''
                Eliminating Exception to Expedited Removal Authority for Cuban
                Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017). DHS cited
                the prospect that ``publication of the rule as a proposed rule, which
                would signal a significant change in policy while permitting
                continuation of the exception for Cuban nationals, could lead to a
                surge in migration of Cuban nationals seeking to travel to and enter
                the United States during the period between the publication of a
                proposed and a final rule.'' Id. DHS found that ``[s]uch a surge would
                threaten national security and public safety by diverting valuable
                Government resources from counterterrorism and homeland security
                responsibilities. A surge could also have a destabilizing effect on the
                region, thus weakening the security of the United States and
                threatening its international relations.'' Id. DHS concluded that ``a
                surge could result in significant loss of human life.'' Id.
                 Reliance on the good cause exception in effecting immediate changes
                in immigration policy is not a new practice. In 2004, for example, DHS
                relied on the exception to immediately expand ER to further national
                security and deter dangerous migrant travel. See, e.g., Designating
                Aliens For Expedited Removal, 69 FR 48877 (Aug. 11, 2004); see also,
                e.g., Visas: Documentation of Nonimmigrants Under the Immigration and
                Nationality Act, as Amended, 81 FR at 5907 (finding the good cause
                exception applicable because of similar concerns).
                 DOJ and DHS raised similar concerns and drew similar conclusions in
                the July 2019 joint interim final rule that limited asylum eligibility
                for aliens who had transited to the United States through a third
                country without applying for available asylum relief. Asylum
                Eligibility and Procedural Modifications, 84 FR 33829, 33840-41 (July
                16, 2019); see also, e.g., Aliens Subject to a Bar on Entry Under
                Certain Presidential Proclamations; Procedures for Protection Claims,
                83 FR 55934, 55950-51 (Nov. 9, 2018) (also relying on the good cause
                exception). As noted above, the Supreme Court granted (without
                explanation) a stay of a lower court decision that had ruled against
                use of an IFR to promulgate the third-country-transit requirement.
                 These same concerns apply to this rule to an even greater extent.
                Pre-promulgation notice and comment, or a delay in the effective date,
                would jeopardize the lives and welfare of aliens who could surge to the
                border to enter the United States before the rule limiting asylum
                applications took effect. See East Bay I, 354 F. Supp. 3d at 1115
                (citing a newspaper article suggesting that such a rush to the border
                occurred due to knowledge of a pending regulatory change in immigration
                law). Furthermore, an additional surge of aliens seeking to enter via
                the southern border prior to the effective date of this rule would be
                destabilizing to the region, as well as to the U.S. immigration system.
                In recent years, there has been a massive increase in the number of
                aliens who assert a fear of persecution. This massive increase is
                overwhelming the U.S. immigration system as a result of a variety of
                factors, including the extraordinary proportion of aliens who are
                initially found to have a credible fear and therefore are referred to
                full removal proceedings in immigration court; a lack of detention
                space; and the resulting high rate of release into the interior of the
                United States of aliens with a positive credible fear determination,
                many of whom then abscond without pursuing their asylum claims to a
                final conclusion and become difficult to locate and remove. Recent
                initiatives to track family-unit cases in 10 cities and from Sept. 24,
                2018, through October 25, 2019, revealed that 79 percent of removal
                orders were
                [[Page 64008]]
                issued in absentia--i.e., were issued to an alien who had absconded. A
                large additional influx of aliens who intend to enter illegally or to
                apply for admission without proper documentation would exacerbate this
                crisis. This concern is particularly acute in the current climate in
                which illegal immigration flows fluctuate significantly in response to
                news events. Therefore, this interim final rule is a practical and
                necessary means to address the time-sensitive influx of aliens and
                avoid creating an even larger short-term influx.
                B. Regulatory Flexibility Act
                 The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
                the Small Business Regulatory Enforcement Fairness Act of 1996,
                requires an agency to prepare and make available to the public a
                regulatory flexibility analysis that describes the effect of the rule
                on small entities (i.e., small businesses, small organizations, and
                small governmental jurisdictions). A regulatory flexibility analysis is
                not required when a rule is exempt from notice-and-comment rulemaking.
                C. Unfunded Mandates Reform Act of 1995
                 This interim final rule will not result in the expenditure by
                state, local, and tribal governments, in the aggregate, or by the
                private sector, of $100 million or more in any one year, and it will
                not significantly or uniquely affect small governments. Therefore, no
                actions were deemed necessary under the provisions of the Unfunded
                Mandates Reform Act of 1995.
                D. Congressional Review Act
                 This interim final rule is not a major rule as defined by section
                804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not
                result in an annual effect on the economy of $100 million or more; a
                major increase in costs or prices; or significant adverse effects on
                competition, employment, investment, productivity, innovation, or on
                the ability of United States-based companies to compete with foreign-
                based companies in domestic and export markets.
                E. Executive Order 12866, Executive Order 13563, and Executive Order
                13771 (Regulatory Planning and Review)
                 This rule is not subject to Executive Order 12866 as it is
                implicates a foreign affairs function of the United States relating to
                ongoing discussions with implications for a set of specified
                international relationships. As this is not a regulatory action under
                Executive Order 12866, it is not subject to Executive Order 13771.
                F. Executive Order 13132 (Federalism)
                 This rule will not have substantial direct effects on the States,
                on the relationship between the national government and the States, or
                on the distribution of power and responsibilities among the various
                levels of government. Therefore, in accordance with section 6 of
                Executive Order 13132, it is determined that this rule does not have
                sufficient federalism implications to warrant the preparation of a
                federalism summary impact statement.
                G. Executive Order 12988 (Civil Justice Reform)
                 This rule meets the applicable standards set forth in section 3(a)
                and 3(b)(2) of Executive Order 12988.
                H. Paperwork Reduction Act
                 This rule does not propose new, or revisions to existing,
                ``collection[s] of information'' as that term is defined under the
                Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
                35, and its implementing regulations, 5 CFR part 1320.
                List of Subjects
                8 CFR Part 208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 1003
                 Administrative practice and procedure, Aliens, Immigration, Legal
                Services, Organization and functions (Government agencies).
                8 CFR Part 1208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 1240
                 Administrative practice and procure, Aliens.
                Regulatory Amendments
                DEPARTMENT OF HOMELAND SECURITY
                 Accordingly, for the reasons set forth in the preamble, the
                Secretary of Homeland Security amends 8 CFR part 208 as follows:
                PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                1. The authority citation for part 208 continues to read as follows
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                of Public Law 110-229, 8 CFR part 2.
                0
                2. Section 208.4 is amended by revising paragraph (a)(6) to read as
                follows:
                Sec. 208.4 Filing the application.
                * * * * *
                 (a) * * *
                 (6) Asylum Cooperative Agreements. Immigration officers have
                authority to apply section 208(a)(2)(A) of the Act, relating to the
                determination that the alien may be removed to a third country pursuant
                to a bilateral or multilateral agreement, as provided in Sec.
                208.30(e). For provisions relating to the authority of immigration
                judges with respect to section 208(a)(2)(A), see 8 CFR 1240.11(g) and
                (h).
                * * * * *
                0
                3. Section 208.30 is amended by revising paragraph (e)(7) and adding
                paragraph (e)(8) to read as follows:
                Sec. 208.30 Credible fear determinations involving stowaways and
                applicants for admission who are found inadmissible pursuant to section
                212(a)(6)(C) or 212(a)(7) of the Act, whose entry is limited or
                suspended under section 212(f) or 215(a)(1) of the Act, or who failed
                to apply for protection from persecution in a third country where
                potential relief is available while en route to the United States.
                * * * * *
                 (e) * * *
                 (7) When an immigration officer has made an initial determination
                that an alien, other than an alien described in paragraph (e)(6) of
                this section and regardless of whether the alien is arriving at a port
                of entry, appears to be subject to the terms of an agreement authorized
                by section 208(a)(2)(A) of the Act, and seeks the alien's removal
                consistent with this provision, prior to any determination concerning
                whether the alien has a credible fear of persecution or torture, the
                asylum officer shall conduct a threshold screening interview to
                determine whether the alien is ineligible to apply for asylum in the
                United States and is subject to removal to a country (``receiving
                country'') that is a signatory to the applicable agreement authorized
                by section 208(a)(2)(A) of the Act, other than the U.S.-Canada
                Agreement effectuated in 2004. In conducting this threshold screening
                interview, the asylum officer shall apply all relevant
                [[Page 64009]]
                interview procedures outlined in paragraph (d) of this section, except
                that paragraphs (d)(2) and (4) of this section shall not apply to
                aliens described in this paragraph (e)(7). The asylum officer shall
                advise the alien of the applicable agreement's exceptions and question
                the alien as to applicability of any of these exceptions to the alien's
                case. The alien shall be provided written notice that if he or she
                fears removal to the prospective receiving country because of the
                likelihood of persecution on account of a protected ground or torture
                in that country and wants the officer to determine whether it is more
                likely than not that the alien would be persecuted on account of a
                protected ground or tortured in that country, the alien should
                affirmatively state to the officer such a fear of removal. If the alien
                affirmatively states such a fear, the asylum officer will determine
                whether the individual has demonstrated that it is more likely than not
                that he or she would be persecuted on account of a protected ground or
                tortured in that country.
                 (i)(A) If the asylum officer, with concurrence from a supervisory
                asylum officer, determines during the threshold screening interview
                that an alien does not qualify for an exception under the applicable
                agreement, and, if applicable, that the alien has not demonstrated that
                it is more likely than not that he or she would be persecuted on
                account of a protected ground or tortured in the receiving country, the
                alien is ineligible to apply for asylum in the United States. Subject
                to paragraph (e)(7)(i)(B) of this section, after the asylum officer's
                documented finding is reviewed by a supervisory asylum officer, the
                alien shall be advised that he or she will be removed to the receiving
                country, as appropriate under the applicable agreement, in order to
                pursue his or her claims relating to a fear of persecution or torture
                under the law of the receiving country. Prior to removal to a receiving
                country under an agreement authorized by section 208(a)(2)(A), the
                alien shall be informed that, in the receiving country, the alien will
                have an opportunity to pursue the alien's claim for asylum or
                equivalent temporary protection.
                 (B) Aliens found ineligible to apply for asylum under this
                paragraph (e)(7) shall be removed to the receiving country, depending
                on the applicable agreement, unless the alien voluntarily withdraws his
                or her request for asylum.
                 (ii) If the alien establishes by a preponderance of the evidence
                that he or she qualifies for an exception under the terms of the
                applicable agreement, or would more likely than not be persecuted on
                account of a protected ground delineated in section 208(a)(2)(A) of the
                Act or tortured in the receiving country, the asylum officer shall make
                a written notation to that effect, and may then proceed to determine
                whether any other agreement is applicable to the alien under the
                procedures set forth in this paragraph (e)(7). If the alien establishes
                by a preponderance of the evidence that he or she qualifies for an
                exception under the terms of each of the applicable agreements, or
                would more likely than not be persecuted on account of a protected
                ground or tortured in each of the prospective receiving countries, the
                asylum officer shall make a written notation to that effect, and then
                proceed immediately to a determination concerning whether the alien has
                a credible fear of persecution or torture under paragraph (d) of this
                section.
                 (iii) An exception to an applicable agreement is defined under the
                terms of the agreement itself. Each agreement, including any
                exceptions, will be announced in a Federal Register document. If the
                asylum officer determines that an alien is within one of the classes
                covered by a section 208(a)(2)(A) agreement, the officer shall next
                determine whether the alien meets any of the applicable agreement's
                exceptions. Regardless of whether the text of the applicable agreement
                provides for the following exceptions, all such agreements, by
                operation of section 208(a)(2)(A) of the Act, and as applicable to the
                United States, are deemed to contain the following provisions:
                 (A) No alien may be removed, pursuant to an agreement authorized by
                section 208(a)(2)(A), to the alien's country of nationality, or, if the
                alien has no nationality, to the alien's country of last habitual
                residence; and
                 (B) No alien may be removed, pursuant to an agreement authorized by
                section 208(a)(2)(A), where the Director of USCIS, or the Director's
                designee, determines, in the exercise of unreviewable discretion, that
                it is in the public interest for the alien to receive asylum in the
                United States, and that the alien therefore may apply for asylum,
                withholding of removal, or protection under the Convention Against
                Torture, in the United States.
                 (iv) If the asylum officer determines the alien meets an exception
                under the applicable agreement, or would more likely than not be
                persecuted on account of a protected ground or tortured in the
                prospective receiving country, the officer may consider whether the
                alien is subject to another agreement and its exceptions or would more
                likely than not be persecuted on account of a protected ground or
                tortured in another receiving country. If another section 208(a)(2)(A)
                agreement may not be applied to the alien, the officer should
                immediately proceed to a credible fear interview.
                 (8) An asylum officer's determination shall not become final until
                reviewed by a supervisory asylum officer.
                * * * * *
                Department of Justice
                 Accordingly, for the reasons set forth in the preamble, the
                Attorney General amends 8 CFR parts 1003, 1208, and 1240 as follows:
                PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                4. The authority citation for part 1003 continues to read as follows:
                 Authority: 5 U.S.C. 301; 6 U.S.C 521; 8 U.S.C. 1101, 1103,
                1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
                1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
                2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
                section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
                and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
                1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
                0
                5. Section 1003.42 is amended by revising paragraph (h) to read as
                follows:
                Sec. 1003.42 Review of credible fear determination.
                * * * * *
                 (h) Asylum cooperative agreement--(1) Arriving alien. An asylum
                judge has no jurisdiction to review a determination by an immigration
                officer that an arriving alien is not eligible to apply for asylum
                pursuant to the 2002 U.S.-Canada Agreement formed under section
                208(a)(2)(A) of the Act and should be returned to Canada to pursue his
                or her claims for asylum or other protection under the laws of Canada.
                See 8 CFR 208.30(e)(6). However, in any case where an asylum officer
                has found that an arriving alien qualifies for an exception to that
                Agreement, an immigration judge does have jurisdiction to review a
                negative credible fear finding made thereafter by the asylum officer as
                provided in this section.
                 (2) Aliens in transit. An immigration judge has no jurisdiction to
                review any determination by DHS that an alien being removed from Canada
                in transit through the United States should be returned to Canada to
                pursue asylum claims under Canadian law, under the terms of the 2002
                U.S.-Canada Agreement.
                [[Page 64010]]
                 (3) Applicants for admission. An immigration judge has no
                jurisdiction to review a determination by an asylum officer that an
                alien is not eligible to apply for asylum pursuant to a bilateral or
                multilateral agreement with a third country under section 208(a)(2)(A)
                of the Act and should be removed to the third country to pursue his or
                her claims for asylum or other protection under the laws of that
                country. See 8 CFR 208.30(e)(7). However, if the asylum officer has
                determined that the alien may not or should not be removed to a third
                country under section 208(a)(2)(A) of the Act and subsequently makes a
                negative credible fear determination, an immigration judge has
                jurisdiction to review the negative credible fear finding as provided
                in this section.
                 (4) Aliens in transit through the United States from countries
                other than Canada. An immigration judge has no jurisdiction to review
                any determination by DHS that an alien being removed from a receiving
                country in transit through the United States should be returned to
                pursue asylum claims under the receiving country's law, under the terms
                of the applicable cooperative agreement. See 8 CFR 208.30(e)(7).
                PART 1208--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                6. The authority citation for part 1208 continues to read as follows:
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                of Public Law 110-229, 8 CFR part 2.
                0
                7. Section 1208.4 is amended by revising paragraph (a)(6) to read as
                follows:
                Sec. 1208.4 Filing the application.
                * * * * *
                 (a) * * *
                 (6) Asylum cooperative agreements. Immigration judges have
                authority to consider issues under section 208(a)(2)(A) of the Act,
                relating to the determination of whether an alien is ineligible to
                apply for asylum and should be removed to a third country pursuant to a
                bilateral or multilateral agreement, only with respect to aliens whom
                DHS has chosen to place in removal proceedings under section 240 of the
                Act, as provided in 8 CFR 1240.11(g) and (h). For DHS regulations
                relating to determinations by immigration officers on this subject, see
                8 CFR 208.30(e)(6) and (7).
                * * * * *
                PART 1240--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                8. The authority citation for part 1240 continues to read as follows:
                 Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
                1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
                and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
                105-277 (112 Stat. 2681).
                0
                9. Section 1240.11 is amended by revising the paragraph (g) subject
                heading and paragraphs (g)(1) and (4) and adding paragraph (h) to read
                as follows:
                Sec. 1240.11 Ancillary matters, applications.
                * * * * *
                 (g) U.S.-Canada safe third country agreement. (1) The immigration
                judge has authority to apply section 208(a)(2)(A) of the Act, relating
                to a determination that an alien may be removed to Canada pursuant to
                the 2002 Agreement Between the Government of the United States of
                America and the Government of Canada For Cooperation in the Examination
                of Refugee Status Claims from Nationals of Third Countries
                (``Agreement''), in the case of an alien who is subject to the terms of
                the Agreement and is placed in proceedings pursuant to section 240 of
                the Act. In an appropriate case, the immigration judge shall determine
                whether under that Agreement the alien should be returned to Canada, or
                whether the alien should be permitted to pursue asylum or other
                protection claims in the United States.
                * * * * *
                 (4) An alien who is found to be ineligible to apply for asylum
                under section 208(a)(2)(A) of the Act is ineligible to apply for
                withholding of removal pursuant to section 241(b)(3) of the Act and the
                Convention against Torture. However, the alien may apply for any other
                relief from removal for which the alien may be eligible. If an alien
                who is subject to the Agreement and section 208(a)(2)(A) of the Act is
                ordered removed, the alien shall be ordered removed to Canada, in which
                the alien will be able to pursue his or her claims for asylum or
                protection against persecution or torture under the laws of Canada.
                 (h) Other asylum cooperative agreements. (1) The immigration judge
                has authority to apply section 208(a)(2)(A) of the Act, relating to a
                determination that an alien may be removed to a third country pursuant
                to a bilateral or multilateral agreement--other than the 2002 U.S.-
                Canada Agreement--in the case of an alien who is subject to the terms
                of the relevant agreement and is placed in proceedings pursuant to
                section 240 of the Act. In an appropriate case, the immigration judge
                shall determine whether under the relevant agreement the alien should
                be removed to the third country, or whether the alien should be
                permitted to pursue asylum or other protection claims in the United
                States. If more than one agreement applies to the alien and the alien
                is ordered removed, the immigration judge shall enter alternate orders
                of removal to each relevant country.
                 (2) An alien described in paragraph (h)(1) of this section is
                ineligible to apply for asylum pursuant to section 208(a)(2)(A) of the
                Act, or for withholding of removal or CAT protection in the United
                States, unless the immigration judge determines, by a preponderance of
                the evidence, that:
                 (i) The relevant agreement does not apply to the alien or does not
                preclude the alien from applying for asylum in the United States;
                 (ii) The alien qualifies for an exception to the relevant agreement
                as set forth in paragraph (h)(3) of this section and the Federal
                Register document specifying the exceptions particular to the relevant
                agreement; or
                 (iii) The alien has demonstrated that it is more likely than not
                that he or she would be persecuted on account of a protected ground or
                tortured in the third country.
                 (3) The immigration judge shall apply the applicable regulations in
                deciding whether an alien described in paragraph (h)(1) of this section
                qualifies for an exception under the relevant agreement that would
                permit the United States to exercise authority over the alien's asylum
                claim. The exceptions for agreements with countries other than Canada
                are further explained by the applicable published Federal Register
                document setting out each Agreement and its exceptions. The immigration
                judge shall not review, consider, or decide any issues pertaining to
                any discretionary determination on whether an alien described in
                paragraph (h)(1) of this section should be allowed to pursue an
                application for asylum in the United States notwithstanding the general
                terms of an agreement, as section 208(a)(2)(A) of the Act reserves to
                the Secretary or his delegates the determination whether it is in the
                public interest for the alien to receive asylum in the United States.
                However, an alien in removal proceedings who is otherwise ineligible to
                apply for asylum under an agreement may apply for asylum if DHS files a
                written notice in the proceedings before the immigration judge that DHS
                has decided in the
                [[Page 64011]]
                public interest that the alien may pursue an application for asylum or
                withholding of removal in the United States.
                 (4) If the immigration judge determines that an alien described in
                paragraph (h)(1) of this section is subject to the terms of agreements
                formed pursuant to section 208(a)(2)(A) of the Act, and that the alien
                has failed to demonstrate that it is more likely than not that the
                alien would be persecuted on account of a protected ground or tortured
                in those third countries, then the alien is ineligible to apply for
                withholding of removal pursuant to section 241(b)(3) of the Act and the
                Convention Against Torture notwithstanding any other provision in this
                chapter. However, the alien may apply for any other relief from removal
                for which the alien may be eligible. If an alien who is subject to
                section 208(a)(2)(A) of the Act is ordered removed, the alien shall be
                ordered removed to the relevant third country in which the alien will
                be able to pursue his or her claims for asylum or protection against
                persecution or torture under the laws of that country.
                 Approved:
                 Dated: November 14, 2019.
                Chad F. Wolf,
                Acting Secretary of Homeland Security.
                 Approved:
                 Dated: November 14, 2019.
                William P. Barr,
                Attorney General.
                [FR Doc. 2019-25137 Filed 11-18-19; 8:45 am]
                 BILLING CODE 9111-97-P; 4410-30-P
                

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