Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers

CourtExecutive Office For Immigration Review
Citation86 FR 46906
Published date20 August 2021
SectionProposed rules
Record Number2021-17779
Federal Register, Volume 86 Issue 159 (Friday, August 20, 2021)
[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
                [Proposed Rules]
                [Pages 46906-46950]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-17779]
                [[Page 46905]]
                Vol. 86
                Friday,
                No. 159
                August 20, 2021
                Part IIDepartment of Homeland Security-----------------------------------------------------------------------8 CFR Parts 208 and 235Department of Justice----------------------------------------------------------------------- Executive Office for Immigration Review-----------------------------------------------------------------------
                8 CFR Parts 1003, 1208, and 1235Procedures for Credible Fear Screening and Consideration of Asylum,
                Withholding of Removal, and CAT Protection Claims by Asylum Officers;
                Proposed Rule
                Federal Register / Vol. 86 , No. 159 / Friday, August 20, 2021 /
                Proposed Rules
                [[Page 46906]]
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                DEPARTMENT OF HOMELAND SECURITY
                8 CFR Parts 208 and 235
                [CIS No. 2692-21; DHS Docket No. USCIS-2021-0012]
                RIN 1615-AC67
                DEPARTMENT OF JUSTICE
                Executive Office for Immigration Review
                8 CFR Parts 1003, 1208, and 1235
                [A.G. Order No. 5116-2021]
                RIN 1125-AB20
                Procedures for Credible Fear Screening and Consideration of
                Asylum, Withholding of Removal, and CAT Protection Claims by Asylum
                Officers
                AGENCY: Executive Office for Immigration Review, Department of Justice;
                U.S. Citizenship and Immigration Services, Department of Homeland
                Security.
                ACTION: Notice of proposed rulemaking.
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                SUMMARY: The Department of Justice (``DOJ'') and the Department of
                Homeland Security (``DHS'') (collectively, ``the Departments'') are
                proposing to amend the regulations governing the determination of
                certain protection claims raised by individuals subject to expedited
                removal and found to have a credible fear of persecution or torture.
                Under the proposed rule, such individuals could have their claims for
                asylum, withholding of removal under section 241(b)(3) of the
                Immigration and Nationality Act (``INA'' or ``the Act'') (``statutory
                withholding of removal''), or protection under the regulations issued
                pursuant to the legislation implementing U.S. obligations under Article
                3 of the Convention Against Torture and Other Cruel, Inhuman or
                Degrading Treatment or Punishment (``CAT'') initially adjudicated by an
                asylum officer within U.S. Citizenship and Immigration Services
                (``USCIS''). Such individuals who are granted relief by the asylum
                officer would be entitled to asylum, withholding of removal, or
                protection under CAT, as appropriate. Such individuals who are denied
                protection would be able to seek prompt, de novo review with an
                immigration judge (``IJ'') in the DOJ Executive Office for Immigration
                Review (``EOIR''), with appeal available to the Board of Immigration
                Appeals (``BIA''). These changes are intended to improve the
                Departments' ability to consider the asylum claims of individuals
                encountered at or near the border more promptly while ensuring
                fundamental fairness. In addition, among other changes to the asylum
                process, the Departments are proposing to return to the regulatory
                framework governing the credible fear screening process in place before
                various regulatory changes made from the end of 2018 through the end of
                2020, so as to apply once more the longstanding ``significant
                possibility'' screening standard to all protection claims, but not to
                apply the mandatory bars to asylum and withholding of removal (with
                limited exception) at this initial screening stage.
                DATES: Submission of public comments: Written comments and related
                material must be submitted on or October 19, 2021. The electronic
                Federal Docket Management System will accept comments prior to midnight
                Eastern standard time at the end of that day.
                ADDRESSES: You may submit comments on the entirety of this rulemaking
                package, identified by DHS Docket No. USCIS-2021-0012, through the
                Federal eRulemaking Portal: https://www.regulations.gov. Follow the
                website instructions for submitting comments.
                 Comments submitted in a manner other than the one listed above,
                including emails or letters sent to DHS, USCIS, DOJ, or EOIR officials,
                will not be considered comments on the proposed rule and may not
                receive a response from the Departments. Please note that the
                Departments cannot accept any comments that are hand-delivered or
                couriered. In addition, the Departments cannot accept comments
                contained on any form of digital media storage devices, such as CDs/
                DVDs and USB drives. The Departments also are not accepting mailed
                comments at this time. If you cannot submit your comment by using
                https://www.regulations.gov, please contact Samantha Deshommes, Chief,
                Regulatory Coordination Division, Office of Policy and Strategy, U.S.
                Citizenship and Immigration Services, Department of Homeland Security,
                by telephone at (240) 721-3000 for alternate instructions.
                FOR FURTHER INFORMATION CONTACT:
                 For USCIS: Andria Strano, Acting Chief, Division of Humanitarian
                Affairs, Office of Policy and Strategy, U.S. Citizenship and
                Immigration Services, Department of Homeland Security, 5900 Capital
                Gateway Drive, Camp Springs, MD 20588-0009; telephone (240) 721-3000
                (not a toll-free call).
                 For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
                Executive Office for Immigration Review, 5107 Leesburg Pike, Falls
                Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).
                SUPPLEMENTARY INFORMATION:
                Table of Contents
                I. Public Participation
                II. Background
                 A. Improving the Expedited Removal Process
                 B. DOJ and DHS Authority To Propose This Rule
                 C. The Current Asylum and Expedited Removal Process
                III. Discussion of the Proposed Rule
                 A. Parole--Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii)
                 B. Credible Fear Screening Process--Proposed 8 CFR 208.30
                 C. Applications for Asylum--Proposed 8 CFR 208.3(a) and 208.9(a)
                 D. Proceedings for Further Consideration of the Application for
                Asylum by USCIS Asylum Officer in Asylum and Withholding Merits
                Hearing for Noncitizens With Credible Fear--Proposed 8 CFR 208.2(a)
                and (c); 208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f);
                235.6(a)(1); 1003.42; and 1208.30(g)
                 E. Application Review Proceedings Before the IJ--Proposed 8 CFR
                1208.2(c), 1003.48
                 F. Severability
                 G. Discretion/Phased Implementation
                 Statutory and Regulatory Requirements
                 H. Executive Order 12866 (Regulatory Planning and Review) and
                Executive Order 13563 (Improving Regulation and Regulatory Review)
                 I. Regulatory Flexibility Act
                 J. Unfunded Mandates Reform Act of 1995
                 K. Congressional Review Act
                 L. Executive Order 13132 (Federalism)
                 M. Executive Order 12988 (Civil Justice Reform)
                 N. Family Assessment
                 O. Executive Order 13175 (Consultation and Coordination With
                Indian Tribal Governments)
                 P. National Environmental Policy Act
                 Q. Paperwork Reduction Act
                I. Public Participation
                 Interested persons are invited to participate in this rulemaking by
                submitting written data, views, comments, and arguments on all aspects
                of this rule by the deadline stated above. The Departments also invite
                comments that relate to the economic, environmental, or federalism
                effects that might result from this rule. All comments must be
                submitted in English or accompanied by an English translation. Comments
                that will provide the most assistance to the Departments in developing
                these changes will reference a specific portion of the rule; explain
                the reason for any
                [[Page 46907]]
                recommended change; and include data, information, or authority that
                support such recommended change. Comments submitted in a manner other
                than the one listed above, including emails or letters sent to
                departmental officials, will not be considered comments on the proposed
                rule and may not receive a response from the Departments.
                 Instructions: If you submit a comment, you must include the agency
                name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
                USCIS-2021-0012 for this rulemaking. All submissions will be posted,
                without change, to the Federal eRulemaking Portal at https://www.regulations.gov and will include any personal information you
                provide. Therefore, submitting this information makes it public. You
                may wish to consider limiting the amount of personal information that
                you provide in any voluntary public comment submission you make to the
                Departments. The Departments may withhold from public viewing
                information provided in comments that they determine may impact the
                privacy of an individual or is offensive. For additional information,
                please read the Privacy and Security Notice available at https://www.regulations.gov.
                 Docket: For access to the docket and to read background documents
                or comments received, go to https://www.regulations.gov, referencing
                DHS Docket No. USCIS-2021-0012. You also may sign up for email alerts
                on the online docket to be notified when comments are posted or a final
                rule is published.
                II. Background
                 There is wide agreement that the system for dealing with asylum and
                related protection claims at the southwest border has long been
                ``overwhelmed'' and in desperate need of repair.\1\ As the number of
                such claims has skyrocketed over the years, the system has proven
                unable to keep pace, resulting in large backlogs and lengthy
                adjudication delays. A system that takes years to reach a result is
                simply not a functional one. It delays justice and certainty for those
                who need protection, and it encourages abuse by those who will not
                qualify for protection and smugglers who exploit the delay for profit.
                The aim of this rule is to begin replacing the current system, within
                the confines of the law, with a better and more efficient one that will
                adjudicate protection claims fairly and expeditiously. The proposed
                rule would accomplish this goal by transferring the initial
                responsibility for adjudicating asylum and related protection claims
                \2\ made by noncitizens encountered at or near the border from IJs in
                EOIR to asylum officers in USCIS. The proposed rule would also provide
                for the prompt filing of asylum applications by such individuals, while
                also providing ample procedural safeguards designed to ensure due
                process, respect human dignity, and promote equity.
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                 \1\ See DHS, Homeland Security Advisory Council, Final Emergency
                Interim Report: CBP Families and Children Care Panel, at 1 (Apr. 16,
                2019), https://www.dhs.gov/sites/default/files/publications/19_0416_hsac-emergency-interim-report.pdf; Randy Capps et al., From
                Control to Crisis: Changing Trends and Policies Reshaping U.S.-
                Mexico Border Enforcement 7, Migration Policy Institute (MPI) (Aug.
                2019), https://www.migrationpolicy.org/sites/default/files/publications/BorderSecurity-ControltoCrisis-Report-Final.pdf (``as
                arrivals have surged to levels unseen in years, border enforcement
                and asylum systems have been overwhelmed''); Lora Ries, Securing the
                Border and Fixing Our Broken Immigration System, Heritage Foundation
                (Sept. 21, 2020), https://www.heritage.org/immigration/commentary/securing-the-border-and-fixing-our-broken-immigration-system (``our
                immigration court system is so overwhelmed, [asylum] cases of merit
                are combined with meritless cases, each of which can take years to
                resolve''); Greg Chen & Peter Markowitz, Recommendations for DOJ and
                EOIR Leadership To Systematically Remove Non-Priority Cases from the
                Immigration Court Backlog 1, Am. Immigr. Law. Ass'n (Feb. 11, 2021),
                https://www.aila.org/infonet/remove-non-priority-cases (``The
                bottleneck for the entire removal system caused by the court
                backlog, if not addressed quickly, presents a serious obstacle to
                the Biden administration's goal of ensuring the fair and efficient
                processing of all removal cases.'').
                 \2\ The generic term ``protection claims'' is used here to refer
                to all three forms of protection addressed in this proposed rule
                (asylum, statutory withholding of removal, and protection from
                removal under the regulations implementing U.S. obligations under
                Article 3 of the CAT).
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                 The current U.S. protection system at the border was initially
                designed in the mid-1990s.\3\ Congress established an expedited removal
                process for noncitizens who present themselves at a port of entry for
                inspection or are encountered at or near the border and who are found
                to be inadmissible because they lack valid entry documents or because
                they sought to enter the United States by fraud or misrepresentation.
                INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i); INA 212(a)(6)(C), (7),
                8 U.S.C. 1182(a)(6)(C), (7). Congress authorized DHS to extend the
                expedited removal process to certain noncitizens apprehended shortly
                after crossing the border unlawfully, and DHS has exercised that
                authority. INA 235(b)(1)(A)(iii), 8 U.S.C. 1225(b)(1)(A)(iii).\4\
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                 \3\ See Illegal Immigration Reform and Immigrant Responsibility
                Act of 1996, Public Law 104-208, div. C, 110 Stat. 3009, 3009-546
                (1996) (``IIRIRA'').
                 \4\ The former Immigration and Naturalization Service (``INS'')
                initially implemented expedited removal only against noncitizens
                arriving at ports of entry. In 2002, DHS expanded the application of
                expedited removal to noncitizens who (1) entered the United States
                by sea, either by boat or other means, (2) were not admitted or
                paroled into the United States, and (3) have not been continuously
                present in the United States for at least 2 years. Notice
                Designating Aliens Subject to Expedited Removal Under Section
                235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR
                68924 (Nov. 13, 2002). In 2004, DHS published an immediately
                effective notice in the Federal Register to expand the application
                of expedited removal to noncitizens encountered within 100 miles of
                the border and to noncitizens who entered the United States without
                inspection fewer than 14 days before they were encountered.
                Designating Aliens for Expedited Removal, 69 FR 48877 (Aug. 11,
                2004). In 2019, DHS expanded the process to the full extent
                authorized by statute to reach noncitizens who entered the country
                without inspection less than 2 years before being apprehended and
                who were encountered anywhere in the United States. Designating
                Aliens for Expedited Removal, 84 FR 35409 (July 23, 2019). President
                Biden has directed DHS to consider whether to modify, revoke, or
                rescind that 2019 expansion. E.O. 14010, Ensuring a Timely and Fair
                Expedited Removal Process, 86 FR 8267, 8270-71 (Feb. 2, 2021).
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                 A DHS immigration officer who encounters a noncitizen subject to
                expedited removal may order the noncitizen to be ``removed from the
                United States without further hearing or review'' unless the noncitizen
                indicates either ``an intention to apply for asylum'' or ``a fear of
                persecution.'' INA 235 (b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). If the
                noncitizen indicates such an intention or fear, the immigration officer
                must refer the noncitizen for an interview by an asylum officer to
                determine whether the noncitizen has a ``credible fear of
                persecution.'' INA 235(b)(1)(A)(ii), (B)(ii), 8 U.S.C.
                1225(b)(1)(A)(ii), (B)(ii). A credible fear is defined by statute as a
                ``significant possibility'' that the noncitizen could establish
                eligibility for asylum. INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
                Before various regulatory changes published between 2018 and 2020,
                explained in greater detail below, the ``significant possibility''
                standard also was applied to screening for eligibility for statutory
                withholding of removal and CAT protection.\5\ Because those recent
                regulatory changes have been vacated or enjoined, the ``significant
                possibility'' standard presently applies to all three forms of
                protection claims.\6\ If the asylum officer determines that the
                noncitizen lacks a credible fear, that determination is subject to
                expedited review by an IJ, but not by the BIA or an Article III court.
                INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); see INA
                [[Page 46908]]
                242(a)(2)(A)(iii), (e)(2), 8 U.S.C. 1252(a)(2)(A)(iii), (e)(2).
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                 \5\ See generally Convention Against Torture and Other Cruel,
                Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S.
                Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for
                United States Nov. 20, 1994).
                 \6\ See infra note 24.
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                 Noncitizens placed into expedited removal and determined to have a
                credible fear of persecution or torture by an asylum officer or an IJ
                must be referred for ``further consideration of the application for
                asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The INA is
                silent as to the procedures by which this ``further consideration''
                should occur. Under regulations in place before December 2020,\7\ such
                individuals are currently referred to IJs for removal proceedings under
                section 240 of the INA, 8 U.S.C. 1229a, (``section 240 removal
                proceedings'') and its implementing regulations, 8 CFR 208.30(f),
                235.6(a)(1)(ii)-(iii), 1208.30(g)(2)(iv)(B). In those proceedings, IJs
                conduct adversarial hearings to determine removability and adjudicate
                applications for asylum, withholding or deferral of removal, and any
                other forms of relief or protection.
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                 \7\ See infra note 24 discussing recent regulations and their
                current status. The final rule entitled Procedures for Asylum and
                Withholding of Removal; Credible Fear and Reasonable Fear Review, 85
                FR 80274, 80276 (Dec. 11, 2020) (``Global Asylum'' rule), revised
                the process used to hear the asylum claim, placing noncitizens into
                asylum/withholding-only proceedings instead of removal proceedings
                under section 240 of the INA.
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                 The process put into place in 1997, under which noncitizens who
                establish credible fear generally must have their asylum claims decided
                through an adversarial removal proceeding before an IJ, is no longer
                fit for its intended purpose. It does not adequately address the need
                to adjudicate in a timely manner the rapidly increasing number of
                asylum claims raised by individuals arriving in the United States.
                 This system was designed at a time when the vast majority of
                southwest border encounters involved single adults from Mexico and
                relatively few asylum claims were filed. This system has proven unable
                to manage the increasing numbers and changing demographics of
                noncitizens \8\ with asylum claims arriving in recent years at the
                southwest border. Since the mid-2010s, the demographic characteristics
                of noncitizens encountered at the border with Mexico have been utterly
                transformed from being dominated by Mexican nationals to consisting
                mainly of nationals from the Northern Triangle countries of Central
                America (El Salvador, Guatemala, and Honduras) along with other Western
                Hemisphere states; from consisting almost entirely of adults traveling
                without children to including large numbers of families and
                unaccompanied children; and from including very few asylum seekers to
                asylum seekers making up a large share of southwest border
                encounters.\9\ As a result, even as overall encounters at the southwest
                border have been lower in recent years than in the 1990s and 2000s, the
                demands on the U.S. asylum system have increased sharply.
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                 \8\ For purposes of this discussion, the Departments use the
                term ``noncitizen'' synonymously with the term ``alien'' in the INA.
                See INA 101(a)(3), 8 U.S.C. 1101(a)(3).
                 \9\ Office of Immigration Statistics, Fiscal Year 2020
                Enforcement Lifecycle Report 1, Dep't of Homeland Security (Dec.
                2020) (``OIS FY 2020 Lifecycle Report''), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/Special_Reports/Enforcement_Lifecycle/2020_enforcement_lifecycle_report.pdf.
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                 Recent demographic changes in southwest border encounters have been
                dramatic. As recently as 2009, Mexican nationals accounted for 92
                percent of southwest border apprehensions.\10\ Their share fell below
                50 percent for the first time ever in 2014, remained below 50 percent
                between 2016 and 2019, and fell to an all-time low of 20 percent in
                2019, the last full year before the COVID-19 pandemic disrupted ongoing
                migration trends.\11\ Single adults accounted for about 89 percent of
                southwest border encounters in 2013--a number that was likely near an
                all-time low at the time--and fell to just 38 percent in 2019.\12\ Over
                much of this period, U.S. Border Patrol (``USBP'') agents have
                apprehended an increasing number of families and children from Northern
                Triangle countries. Individuals from Northern Triangle countries
                accounted for 71 percent of USBP apprehensions in 2019, a record high,
                and families from all countries accounted for 56 percent of the total,
                also an all-time high.\13\
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                 \10\ Dep't of Homeland Security, Fiscal Year 2019 Border
                Security Metrics Report 52 (Aug. 5, 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/BSMR/ndaa_border_security_metrics_report_fy_2019_0.pdf.pdf.
                 \11\ U.S. Customs and Border Protection, Southwest Land Border
                Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-
                border-encounters (last visited Aug. 4, 2021); see also OIS FY 2020
                Lifecycle Report, supra note 9, at 7. Mexico's share of southwest
                border encounters returned to 65 percent during the first year of
                the COVID-19 pandemic, but preliminary data indicate that Mexican
                nationals accounted for fewer than half of southwest border
                encounters during the first eight months of Fiscal Year 2021 and
                only about one-third of unique individuals when controlling for
                higher than usual repeat encounters due to border COVID-19
                protocols.
                 \12\ Id. The phenomenon of families being encountered at the
                border was sufficiently rare that U.S. Border Patrol only began
                recording data on family unit apprehensions in 2013, and the Office
                of Field Operations did so beginning in 2016.
                 \13\ Mike Guo, Immigration Enforcement Actions: 2019 at 4, Dep't
                of Homeland Security (Sept. 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/enforcement_actions_2019.pdf.
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                 These demographic changes have coincided with--and contributed to
                the reversal of--what had been a long-term trend in declining border
                encounters. Moreover, as the population of individuals encountered at
                or near the southwest border has changed, the number of people making
                fear claims after being placed in expedited removal has increased
                sharply. Southwest border apprehensions by the U.S. Border Patrol fell
                from over 1.6 million in 2000 to under 330,000 in 2011 before rising
                back to over 850,000 in 2019.\14\ During the same period, however,
                credible fear referrals to USCIS initially decreased from just over
                10,000 in 2000, to just under 5000 in 2008, before increasing back over
                11,000 in 2011, to over 105,000 in 2019.\15\ Thus, even as overall
                border encounters fell 48 percent between 2000 and 2019, the number of
                individuals making fear claims increased over 900 percent. These
                changing demographics have had an equally dramatic impact on the
                immigration courts responsible for determining removability. EOIR now
                faces a pending caseload of approximately 1.3 million cases,\16\ with
                approximately 610,000 pending asylum applications.\17\ While the corps
                of IJs has more than doubled since 2014, going from 249 at the end of
                FY 2014 to 539 as of April 2021,\18\ the number of pending cases has
                more than tripled in that same period, growing by nearly 500,000 cases
                since the end of Fiscal Year (``FY'') 2018.\19\ This surge in
                [[Page 46909]]
                pending and new cases, along with the temporary, partial closure of the
                immigration courts to in-person hearings in 2020 and 2021 because of
                the COVID-19 pandemic, has resulted in significantly increased
                adjudication times. While the median completion time for cases
                involving individuals who are detained through the 2nd quarter of FY
                2021 was 43 days, for non-detained individuals in removal proceedings,
                including arriving asylum seekers initially screened into expedited
                removal who establish a credible fear of persecution, the recent
                average case completion time in immigration court has been 3.75
                years.\20\ Most asylum seekers arriving at the southwest border in
                recent years must therefore often wait several years to have their
                claims adjudicated in removal proceedings under section 240 of the Act,
                8 U.S.C. 1229a. Absent changes to the current system, the continuing
                arrival of large numbers of noncitizens at the southwest border with
                protection claims is likely to lengthen adjudication times further.
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                 \14\ United States Border Patrol, Southwest Border Sectors,
                Total Illegal Alien Apprehensions by Fiscal Year, https://www.cbp.gov/sites/default/files/assets/documents/2020-Jan/U.S.%20Border%20Patrol%20Fiscal%20Year%20Southwest%20Border%20Sector%20Apprehensions%20%28FY%201960%20-%20FY%202019%29_0.pdf (last
                visited Aug. 4, 2021).
                 \15\ Bruno, Andorra, Immigration: U.S. Asylum Policy (CRS Report
                No. R45539), at 37 (Feb. 19, 2019) (data through 2018), https://crsreports.congress.gov/product/pdf/R/R45539; see also U.S.
                Citizenship and Immigration Services, Credible Fear Workload Report
                Summary--FY2019 Total Caseload (2019 data), https://www.uscis.gov/sites/default/files/document/data/Credible_Fear_Stats_FY19.pdf (last
                visited Aug. 4, 2021).
                 \16\ EOIR, Executive Office for Immigration Review Adjudication
                Statistics: Pending Cases, New Cases, and Total Completions (Apr.
                19, 2021), https://www.justice.gov/eoir/page/file/1242166/download.
                 \17\ EOIR, Executive Office for Immigration Review Adjudication
                Statistics: Total Asylum Applications (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/1106366/download.
                 \18\ EOIR, Executive Office for Immigration Review Adjudication
                Statistics: Immigration Judge (IJ) Hiring (Apr. 2021), https://www.justice.gov/eoir/page/file/1242156/download.
                 \19\ EOIR, Executive Office for Immigration Review Adjudication
                Statistics: Pending Cases, New Cases, and Total Completions (Apr.
                19, 2021), https://www.justice.gov/eoir/page/file/1242166/download.
                 \20\ According to a review of data collected as part of the FY
                2020 Lifecycle Report by DHS OIS, 39% of cases of noncitizens
                encountered at the southwest border in 2013 through 2019 who made
                fear claims remain in EOIR proceedings as of this date. As those
                cases are eventually completed, the median and average completion
                time for cases could be further impacted.
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                 In 2020 and 2021, the situation at the southwest border was
                complicated further by the COVID-19 pandemic. Pursuant to sections 362
                and 365 of the Public Health Service Act, Public Law 78-410, 58 Stat.
                682 (1944), 42 U.S.C. 265 and 268 (``Title 42''), the Centers for
                Disease Control and Prevention (``CDC'') determined in March 2020 that
                it was necessary to prohibit the introduction of certain persons from
                Mexico and Canada to protect the public health by preventing the
                further introduction of the virus that causes COVID-19 into the United
                States.\21\ To mitigate the risks presented by COVID-19, the CDC Order
                requires returning all covered noncitizens as rapidly as possible--and
                with the least amount of time spent in congregate settings as is
                feasible--to the country from which they entered the United States, to
                their country of origin, or to another location as practicable and
                appropriate.\22\ Covered noncitizens are those persons traveling from
                Canada or Mexico (regardless of their country of origin) who otherwise
                would be introduced into a congregate setting in a land (and, as
                amended, coastal) port of entry or USBP station at or near the U.S.
                borders with Canada and Mexico. The CDC Order does not apply to, among
                others, U.S. citizens, lawful permanent residents, and those who arrive
                at a port of entry with valid travel documents.\23\
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                 \21\ See Order Suspending the Right to Introduce Certain Persons
                from Countries Where a Quarantinable Communicable Disease Exists, 85
                FR 65806, 65807 (Oct. 16, 2020) (``CDC Order'' or ``Title 42
                order'') (extending March 20, 2020 order, 85 FR 16559).
                 \22\ Id. at 65812.
                 \23\ Id. at 65808.
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                 Border encounters in FY 2021 remain high. To date, the data does
                suggest that single adults make up a greater percentage of
                apprehensions than in FY 2019 and, controlling for repeat encounters,
                the actual number of unique encounters (the number of unique
                individuals encountered irrespective of potential repeated attempts to
                enter) has been lower to date in FY 2021 than in FY 2019 (given the
                continuing use of Title 42 authority to expel many adults and families
                soon after they are apprehended). But total encounters at or near the
                southwest border through April for FY 2021 has surpassed the FY 2019
                highs over the same period. The high number of southwest border
                apprehensions is presenting serious challenges for an already
                overwhelmed U.S. asylum system at the border.
                A. Improving the Expedited Removal Process
                 The principal purpose of this proposed rule is to simultaneously
                increase both the efficiency and the procedural fairness of the
                expedited removal process for individuals who have been found to have a
                credible fear of persecution or torture. When individuals who have been
                placed into the expedited removal process make a fear claim, they are
                referred to a USCIS asylum officer, who interviews them to determine
                whether they have a credible fear of persecution or torture. See INA
                235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). Under current procedures,
                individuals who receive a positive credible fear determination are
                referred to an immigration court for removal proceedings, in the course
                of which they have the opportunity to apply for asylum and other forms
                of relief or protection from removal. See 8 CFR 208.30(f) (2018)
                (providing that if a noncitizen, other than a stowaway, ``is found to
                have a credible fear of persecution or torture, the asylum officer will
                so inform the [noncitizen] and issue a Form I-862, Notice to Appear,
                for full consideration of the asylum and withholding of removal claim
                in proceedings under section 240 of the Act''). As explained above, it
                may take years before the individual's protection claim is first
                adjudicated by an IJ. The ability to stay in the United States for
                years waiting for an initial decision may motivate unauthorized border
                crossings by individuals who otherwise would not have sought to enter
                the United States and who lack a meritorious protection claim. This
                delay creates additional stress for those ultimately determined to
                merit asylum and other forms of humanitarian protection, as they are
                left in limbo as to whether they might still be removed and unable to
                petition for qualified family members, some of whom may still be at
                risk of harm.
                 To respond to this problem, this rule proposes at 8 CFR
                208.2(a)(1)(ii) and 208.9 to provide USCIS asylum officers the
                authority to adjudicate in the first instance the protection claims of
                individuals who receive a positive credible fear determination, and
                that they do so in a nonadversarial hearing. The rule also proposes at
                8 CFR 208.3(a)(2) that the record of a credible fear interview may
                serve as an asylum application for those noncitizens whose cases are
                retained by or referred to USCIS for adjudication after a positive
                credible fear determination, thereby helping to ensure that asylum
                seekers meet the statutory requirement to apply for asylum within one
                year of arrival. These steps are meant to ensure greater efficiency in
                the system, which was initially designed for protection claims to be
                the exception, not the rule, among those encountered at or near the
                border. The proposed rule will also stem the rapid growth of the EOIR
                caseload, described in greater detail above.
                 As noted earlier, the current system for processing protection
                claims made by individuals encountered at or near the border and who
                establish credible fear was originally adopted in 1997. Within the last
                3 years, however, several attempts have been made to issue new rules to
                change the credible fear screening process. Many of these attempts have
                been vacated or enjoined, and the implementation of others has been
                delayed pending consideration of whether they should be revised or
                rescinded.\24\
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                 \24\ On November 9, 2018, the Departments issued an interim
                final rule (``IFR'') that barred noncitizens who entered the United
                States in contravention of a covered Presidential proclamation or
                order from eligibility for asylum, required that they receive a
                negative credible fear finding on their asylum claims, and required
                that their statutory withholding and CAT claims be considered under
                the higher reasonable fear screening standard. See Aliens Subject to
                a Bar on Entry Under Certain Presidential Proclamations; Procedures
                for Protection Claims, 83 FR 55934, 55939, 55943 (Nov. 9, 2018). A
                month later, the U.S. District Court for the Northern District of
                California preliminarily enjoined the Departments from implementing
                the rule, E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094,
                1121 (N.D. Cal. 2018), and the Ninth Circuit affirmed, E. Bay
                Sanctuary Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021).
                 On July 16, 2019, the Departments published another IFR,
                entitled Asylum Eligibility and Procedural Modifications, 84 FR
                33829 (July 16, 2019), which generally barred noncitizens from
                asylum eligibility if they entered or attempted to enter the United
                States across the southwest border after failing to apply for
                protection from persecution or torture while in any one of the third
                countries through which they transited, required a negative credible
                fear finding for such noncitizens' asylum claims, and required their
                withholding and CAT claims be considered under the higher reasonable
                fear screening standard. Id. at 33837-38. The U.S. District Court
                for the District of Columbia vacated that IFR after concluding that
                the Departments violated the Administrative Procedure Act by
                forgoing notice-and-comment rulemaking. Capital Area Immigrants'
                Rights Coal. v. Trump, 471 F. Supp. 3d 25, 45-57 (D.D.C. 2020). The
                Departments issued a final rule on December 17, 2020, entitled
                Asylum Eligibility and Procedural Modifications, 85 FR 82260 (Dec.
                17, 2020), which again attempted to bar from asylum eligibility
                those noncitizens who transited a third country before arriving at
                the border. The U.S. District Court for the Northern District of
                California subsequently issued a preliminary injunction against
                implementation of that rule, which remains in place as of this
                writing. E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST,
                2021 WL 607869, at *5 (N.D. Cal. Feb. 16, 2021).
                 Around the same time, the Departments also issued the final rule
                entitled Procedures for Asylum and Withholding of Removal; Credible
                Fear and Reasonable Fear Review, 85 FR 80274 (Dec. 11, 2020)
                (``Global Asylum'' rule). That rule revised the credible fear
                screening process to require that all the mandatory bars to asylum
                and withholding be considered during the credible fear screening
                process and established a new screening standard for withholding of
                removal and CAT protection. On January 8, 2021, the U.S. District
                Court for the Northern District of California preliminarily enjoined
                the Departments from implementing the rule. Pangea Legal Servs. v.
                DHS, No. 20-cv-09253 JD, 2021 WL 75756, at *7 (N.D. Cal. Jan. 8,
                2021). That preliminary injunction remains in place.
                 Finally, the Departments also published a final rule entitled
                Security Bars and Processing, 85 FR 84160 (Dec. 23, 2020)
                (``Security Bars'' rule), which added an additional bar to asylum
                and withholding that would be applied to the credible fear screening
                process. The Departments have delayed the rule's effective date to
                December 31, 2021, see Security Bars and Processing; Delay of
                Effective Date, 86 FR 15069 (Mar. 22, 2021), as the Departments
                consider possible action to rescind or revise the rule.
                ---------------------------------------------------------------------------
                [[Page 46910]]
                 This proposed rule offers another approach. It would establish a
                streamlined and simplified adjudication process for individuals
                encountered at or near the border, placed into expedited removal, and
                determined to have a credible fear of persecution or torture, with the
                aim of deciding protection claims in a more timely fashion while
                ensuring procedural protections against erroneous denials of
                relief.\25\ The proposed rule would authorize USCIS asylum officers to
                adjudicate in the first instance the protection claims of individuals
                who receive positive credible fear determinations under the expedited
                removal framework in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).
                The procedures that USCIS asylum officers would use to adjudicate these
                claims would be nonadversarial, and the decisions would be made within
                timeframes more in line with those established by Congress in section
                208(d)(5) of the INA.\26\
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                 \25\ Section 4(b)(i) of E.O. 14010 instructed the Secretary of
                Homeland Security to review the procedures for individuals placed
                into expedited removal at or near the border and issue a report with
                recommendations ``for creating a more efficient and orderly process
                that facilitates timely adjudications [of asylum/protection claims]
                and adherence to standards of fairness and due process.'' 86 FR at
                8270.
                 \26\ See INA 208(d)(5), 8 U.S.C. 1158(d)(5) (specifying that an
                initial hearing on an asylum application should generally occur
                within 45 days after the filing of the application and that an
                initial administrative decision should generally be made within 180
                days).
                ---------------------------------------------------------------------------
                 To ensure effective implementation of the expedited removal system,
                this rule also proposes to revise the parole considerations prior to a
                positive credible fear determination in 8 CFR 235.3. The current rule
                limits parole consideration before the credible fear determination to
                situations in which parole ``is required to meet a medical emergency or
                is necessary for a legitimate law enforcement objective.'' 8 CFR
                235.3(b)(2)(iii), (b)(4)(ii). Under this proposed rule, DHS also would
                be able to consider whether parole is required ``because detention is
                unavailable or impracticable.'' The current narrower parole standards
                effectively prevent DHS from placing into expedited removal many
                noncitizens who would otherwise be eligible for this process,
                especially families, given the requirements of the Flores Settlement
                Agreement (``FSA'').\27\ These restrictions on DHS's ability to detain
                families, coupled with capacity constraints imposed by the COVID-19
                pandemic, have effectively prevented the Government from using the
                third option to detain families subject to expedited removal for more
                than a very limited number of families and for more than a very limited
                period of time. This proposed rule would, when finalized, eliminate
                that barrier to placing families into expedited removal. The proposed
                parole provision would allow more noncitizens arriving at the U.S.
                border without proper documents for entry into the country to be placed
                into expedited removal and allow for them to have their fear claims
                heard and considered outside the detention setting when space is
                unavailable or impracticable to use.
                ---------------------------------------------------------------------------
                 \27\ In 1985, a class-action suit challenged the policies of the
                former INS relating to the detention, processing, and release of
                alien children; the case eventually reached the U.S. Supreme Court.
                The Court upheld the constitutionality of the challenged INS
                regulations on their face and remanded the case for further
                proceedings consistent with its opinion. See Reno v. Flores, 507
                U.S. 292, 315 (1993). In January 1997, the parties reached a
                comprehensive settlement agreement, referred to as the Flores
                Settlement Agreement. See Flores v. Rosen, 984 F.3d 720, 727 (9th
                Cir. 2020) (describing litigation history). The FSA was to terminate
                5 years after the date of final court approval; however, the
                termination provisions were modified in 2001, such that the FSA does
                not terminate until 45 days after publication of regulations
                implementing the agreement. Id. In August 2019, DHS and HHS jointly
                issued a final rule entitled Apprehension, Processing, Care, and
                Custody of Alien Minors and Unaccompanied Alien Children, 84 FR
                44392 (Aug. 23, 2019). In September 2019, about a month before the
                Final Rule was to take effect, a Federal district court granted the
                plaintiff class's motion to enforce the FSA and denied the
                government's motion to terminate it, because the final rule was
                inconsistent with the FSA and thus did not ``implement[ ]'' it as
                required by the FSA's termination provisions. See Flores v. Barr,
                407 F. Supp. 3d 909, 914 (C.D. Cal. 2019). The Ninth Circuit
                affirmed in part, and the provisions of the FSA that are relevant
                here thus generally remain in effect. See Flores v. Rosen, 984 F.3d
                at 737, 744. Under the requirements of the FSA, when DHS apprehends
                an alien parent or legal guardian with their child(ren) either
                illegally entering the United States between the ports of entry or
                found inadmissible at a port of entry, it has, following initiation
                of removal proceedings, three primary options for purposes of
                immigration custody: (1) Parole all family members into the United
                States; (2) detain the parent(s) or legal guardian(s) and either
                release the juvenile to another parent or legal guardian or transfer
                them to HHS to be treated as an unaccompanied child; or (3) detain
                family members together by placing them at an appropriate DHS Family
                Residential Center (``FRC'') during their immigration proceedings.
                See, e.g., id. at 737-38 (discussing ``transfer of unaccompanied
                minors from DHS to HHS,'' ``DHS custodial care immediately following
                apprehension,'' and parole).
                ---------------------------------------------------------------------------
                 This proposed rule would apply prospectively and only to adults and
                families who are placed into expedited removal.\28\ The proposed rule
                would not apply to unaccompanied children, see 6 U.S.C. 279(g)(2)
                (defining ``unaccompanied alien child''), as they are statutorily
                exempt from expedited removal proceedings. 8 U.S.C. 1232(a)(5)(D)(i)
                (providing that ``any unaccompanied alien child'' ``shall be--(i)
                placed in removal proceedings under section 240'' of the INA).\29\ The
                [[Page 46911]]
                proposed rule also would not apply to individuals already residing in
                the United States who are not designated by the Secretary as subject to
                expedited removal.\30\ Such individuals would continue to have their
                asylum claims heard in removal proceedings under section 240 of the
                INA, or through an affirmative asylum application under section 208 of
                the INA if they have not yet been placed into removal proceedings. The
                proposed rule also would not apply to (1) stowaways or (2) noncitizens
                who are present in or arriving in the Commonwealth of the Northern
                Mariana Islands who are determined to have a credible fear. Such
                individuals would continue to be referred to asylum/withholding-only
                proceedings before an IJ under 8 CFR 208.2(c).
                ---------------------------------------------------------------------------
                 \28\ According to EOIR data, as of April 2021, over 220,000 of
                EOIR's pending removal cases originated with a credible fear claim.
                EOIR, Executive Office for Immigration Review Adjudication
                Statistics: Pending I-862 Proceedings Originating With a Credible
                Fear Claim and All Pending I-862s (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/1112996/download. These cases are in
                various stages of the removal process, and hearings may have already
                been scheduled or held. Moving these cases to a new process at this
                stage would risk further delaying adjudication of their protection
                claims and create an immediate backlog of tens of thousands of cases
                for USCIS as it prepares to implement this proposed process for
                future border arrivals.
                 \29\ The statute provides that any unaccompanied child whom DHS
                seeks to remove shall be placed in removal proceedings under section
                240 of the INA. In lieu of being placed in removal proceedings,
                unaccompanied children from contiguous countries who meet special
                criteria may be permitted to withdraw their applications for
                admission and be voluntarily returned to their country of
                nationality or country of last habitual residence. Actual removal
                proceedings for unaccompanied children, whether from contiguous
                countries or not, however, must be under section 240 of the INA.
                 \30\ See supra note 4.
                ---------------------------------------------------------------------------
                 Finally, the Departments clarify that nothing in this proposed
                rule, if finalized, is intended to displace DHS's (and, in particular,
                USCIS's) prosecutorial discretion to place a covered noncitizen in, or
                to withdraw a covered noncitizen from, expedited removal proceedings
                and issue a Notice to Appear (``NTA'') to place the noncitizen in
                section 240 removal proceedings at any time after they are referred to
                USCIS for a credible fear determination. See Matter of E-R-M- & L-R-M-,
                25 I&N Dec. 520, 523 (BIA 2011).
                 The credible fear screening regulations proposed under this rule
                generally would recodify the current screening process, returning the
                regulatory language, in large part, to what was in place prior to the
                various regulatory changes made from the end of 2018 through the end of
                2020. Noncitizens encountered at or near the border or ports of entry
                can be placed into expedited removal and provided a credible fear
                screening if they indicate an intention to apply for asylum, a fear of
                persecution or torture, or a fear of return to their home countries.
                See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); 8 CFR
                235.3(b)(4), 1235.3(b)(4)(i). Individuals claiming a fear or an
                intention to apply for protection are referred to USCIS asylum officers
                for an interview and consideration of their fear claims under the
                credible fear screening standard, which applies to all relevant
                protection claims. If an asylum officer determines that an individual
                does not have a credible fear of persecution or torture, the individual
                can request that an IJ review the asylum officer's negative credible
                fear determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
                1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g). If the IJ concurs
                with the asylum officer's negative credible fear determination, no
                administrative appeal is available, 8 CFR 1208.30(g)(2)(iv)(A), and DHS
                can execute the individual's expedited removal order, promptly removing
                the individual from the United States.
                 If the noncitizen is found to have a credible fear, however, the
                proposed rule would change the procedures in place prior to this
                rulemaking that are described above. Under this proposed rule, rather
                than referring the individual to an IJ for an adversarial removal
                proceeding under section 240 of the INA, or, as provided for in a
                presently-enjoined regulation, an asylum/withholding-only hearing, the
                individual's asylum application instead could be retained by USCIS for
                a nonadversarial hearing before an asylum officer. See 8 CFR 208.30(f)
                (proposed). Similarly, if, upon review of an asylum officer's negative
                credible fear determination, an IJ finds that an individual does have a
                credible fear of persecution or torture, the individual also could be
                referred back to an asylum officer for proceedings on the individual's
                protection claims. Id. Sec. Sec. 1003.42, 1208.30(g). The Departments
                plan to implement these procedures by having asylum hearings conducted
                for those individuals who are referred to or retained by USCIS after
                the positive credible fear determination would be adjudicated in a
                separate queue, apart from adjudications made with respect to
                affirmative asylum applications filed directly with USCIS. The
                individual would have the right to representation during this
                proceeding. Id. Sec. 208.9(b). If, at the conclusion of an asylum
                hearing described in this proposed rule, the asylum officer grants
                asylum, the individual would be allowed to remain in the United States
                indefinitely with the status of ``asylee'' and eventually may apply for
                lawful permanent residence. Id.; see also INA 208(c)(1), 209(b), 8
                U.S.C. 1158(c)(1), 1159(b). If the asylum officer denies asylum and
                orders the individual removed based on the immigration officer's
                initial inadmissibility determination under section 235(b)(1)(A)(i) of
                the INA, 8 U.S.C. 1225(b)(1)(A)(i), the asylum officer will also issue
                a decision regarding withholding or deferral of removal. 8 CFR
                208.14(c)(5) (proposed). An individual who is denied asylum may request
                review by an IJ of the asylum decision, as well as any denial of
                withholding or deferral of removal. Id. Sec. Sec. 208.14(c)(5)(i),
                1003.48(a).
                 In cases in which a noncitizen seeks review of an asylum officer's
                adverse decision, the Departments propose that the IJ would make an
                independent de novo determination based on the record of the hearing
                before the Asylum Office plus any additional, non-duplicative evidence
                presented to the court that is necessary to reach a reasoned decision.
                Id. Sec. 1003.48(e) (proposed). The individual would also have the
                right, consistent with the INA, to representation during this review.
                See 8 CFR 1003.12 (proposed) (providing that the rules in this subpart
                apply to the proposed proceedings under 8 CFR 1003.48); 8 CFR
                1003.16(b) (providing that a noncitizen ``may be represented in
                proceedings before an Immigration Judge by an attorney or other
                representative''). The IJ also would be authorized to vacate
                proceedings when the judge finds the individual is prima facie eligible
                for other forms of relief from removal, so that DHS, in the exercise of
                DHS's discretion, could place the noncitizen into removal proceedings
                under section 240 of the INA, 8 U.S.C. 1229a. See 8 CFR 1003.48(d)
                (proposed).
                 Finally, the rule proposes that both parties would be able to
                appeal the IJ's decision to the BIA under procedures similar to those
                used in section 240 removal proceedings and asylum/withholding-only
                proceedings under 8 CFR 208.2(c), 1208.2(c). See 8 CFR 1003.1(b)(15)
                (proposed). In addition, the individual would be able to petition for
                review of the BIA decision with the Federal courts. See infra note 59.
                B. DOJ and DHS Authority To Propose This Rule
                 The Attorney General and the Secretary jointly propose this rule
                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
                HSA charged the Secretary ``with the administration and enforcement of
                this chapter and all other laws relating to the immigration and
                naturalization of aliens,'' INA 103(a)(1), 8 U.S.C. 1103(a)(1), and
                granted the power to take all actions ``necessary for carrying out''
                the Secretary's authority under the immigration laws, INA 103(a)(3), 8
                U.S.C. 1103(a)(3). The Secretary's authority also includes the
                authority to
                [[Page 46912]]
                publish regulatory amendments governing the apprehension, inspection
                and admission, detention and removal, withholding of removal, and
                release of noncitizens encountered in the interior of the United States
                or at or between the U.S. ports of entry. INA 235, 236, 241, 8 U.S.C.
                1225, 1226, 1231.
                 The HSA thus transferred to DHS authority to adjudicate asylum
                applications, as well as the authority to conduct credible fear
                interviews and make credible fear determinations in the context of
                expedited removal. INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also
                HSA 451(b), 6 U.S.C. 271(b) (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, now USCIS). By operation of the HSA, the
                reference to ``Attorney General'' in the INA is understood also to
                encompass the Secretary in matters with respect to immigration
                proceedings before DHS. That authority has been delegated within DHS to
                the Director of USCIS. See 8 CFR 208.2(a), 208.30.
                 In addition, under the HSA, the Attorney General retained authority
                over individual immigration adjudications (including section 240
                removal proceedings and certain adjudications related to asylum
                applications) conducted within EOIR. See HSA 1101(a), 6 U.S.C. 521(a);
                INA 103(g), 8 U.S.C. 1103(g). IJs within DOJ continue to adjudicate all
                asylum applications filed by noncitizens during the pendency of removal
                proceedings, 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).
                 Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii),
                provides that if a noncitizen in expedited removal proceedings is
                determined to have a credible fear of persecution by an asylum officer,
                the noncitizen is entitled to ``further consideration of the
                application for asylum.'' This proposed rule addresses how that further
                consideration will occur. Section 208(d)(1) of the INA, 8 U.S.C.
                1158(d)(1), provides the Attorney General with the authority to
                establish procedures for the consideration of asylum applications,
                including those filed in accordance with section 235(b) of the INA, 8
                U.S.C. 1225(b). See INA 208(a), 8 U.S.C. 1158(a).
                 Section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3),
                authorizes the Secretary to establish rules and regulations governing
                parole. Section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), vests in the
                Secretary the discretionary authority to grant parole to applicants for
                admission on a case-by-case basis.
                C. The Current Asylum and Expedited Removal Process
                1. Asylum
                 The Refugee Act of 1980, Public Law 96-212, 94 Stat. 102, was the
                first comprehensive legislation to establish the modern refugee and
                asylum system in the United States. Asylum is a discretionary benefit
                that can be granted by the Attorney General or the Secretary if a
                noncitizen establishes, among other things, that they have experienced
                past persecution or have a well-founded fear of future persecution on
                account of race, religion, nationality, membership in a particular
                social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1)
                (providing that the Attorney General ``may'' grant asylum to refugees);
                INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining ``refugee''). As
                long as they retain their asylee status, noncitizens who are granted
                asylum (1) cannot be removed or returned to their country of
                nationality or last habitual residence, (2) receive employment
                authorization incident to their status, and (3) may be permitted to
                apply for readmission after travel outside of the United States with
                prior consent from the Secretary. INA 208(c)(1), 8 U.S.C. 1158(c)(1);
                see Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2286 (2021) (``[A] grant
                of asylum permits an alien to remain in the United States and to apply
                for permanent residency after one year[.]'' (internal quotation marks
                and citation omitted) (emphases omitted)); 8 CFR 274a.12(a)(5)
                (employment authorization incident to asylum status); id. Sec.
                223.1(b) (readmission after travel for a ``person who holds . . .
                asylum status pursuant to section 208 of the Act'').
                 Asylum applications are presently classified based on the agency
                with jurisdiction over the noncitizen's case. If a noncitizen is
                physically present in the United States, not detained, and not in
                removal proceedings, the noncitizen may file an asylum application with
                USCIS. These applications are known as ``affirmative'' filings. If the
                noncitizen is in removal proceedings before an IJ, the noncitizen
                instead may file an application for asylum with the IJ as a defense to
                removal. Such ``defensive'' filings are currently the only route by
                which noncitizens referred to an IJ by a USCIS asylum officer after
                receiving a positive credible fear determination can obtain an
                adjudication of the merits of their asylum claims.
                 Noncitizens who are ineligible for a grant of asylum, or who are
                denied asylum based on the Attorney General's or the Secretary's
                discretion, nonetheless may qualify for other forms of protection. An
                application for asylum submitted by a noncitizen in removal proceedings
                is also considered an application for statutory withholding of removal
                under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). See 8 CFR
                1208.3(b), 1208.13(c)(1). An IJ also may consider a noncitizen's
                eligibility for withholding and deferral of removal under regulations
                issued pursuant to the implementing legislation regarding U.S.
                obligations under Article 3 of the CAT. Foreign Affairs Reform and
                Restructuring Act of 1998, Public Law 105-277, div. G, sec. 2242(b),
                112 Stat. 2681-761, 2681-822 (codified at 8 U.S.C. 1231 note (1999)); 8
                CFR 1208.3(b), 1208.13(c)(1); see also id. Sec. Sec. 1208.16(c),
                1208.17.
                 Withholding and deferral of removal bar a noncitizen's removal to
                any country where the noncitizen would ``more likely than not'' face
                persecution or torture, meaning that the noncitizen would face a clear
                probability that their life or freedom would be threatened because of a
                protected ground or a clear probability of torture. 8 CFR
                1208.16(b)(2), (c)(2). Thus, if a noncitizen proves that it is more
                likely than not that the noncitizen's life or freedom would be
                threatened on account of a protected ground, but is denied asylum for
                some other reason--for instance, because of a statutory exception, an
                eligibility bar adopted by regulation, or a discretionary denial of
                asylum--the noncitizen nonetheless may be entitled to statutory
                withholding of removal if not otherwise barred from that form of
                protection. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); 8 CFR 208.16,
                1208.16. Likewise, a noncitizen who establishes that he or she more
                likely than not will face torture in the country of removal will
                qualify for CAT protection. See 8 CFR 208.16(c), 208.17(a), 1208.16(c),
                1208.17(a). In contrast to the more generous benefits available through
                asylum, statutory withholding and CAT protection do not: (1) Prohibit
                the Government from removing the noncitizen to a third country where
                the noncitizen would not face the requisite likelihood of persecution
                or torture (even in the absence of an agreement with that third
                country); (2) create a path to lawful permanent resident status; or (3)
                afford the same ancillary benefits, such as derivative protection for
                family members. See, e.g., Guzman
                [[Page 46913]]
                Chavez, 141 S. Ct. at 2286 (``distinguish[ing] withholding-only relief
                from asylum'' on the ground that withholding does not preclude the
                Government from removing the noncitizen to a third country and does not
                provide the noncitizen any permanent right to remain in the United
                States); Matter of A-K-, 24 I&N Dec. 275, 279 (BIA 2007) (stating that
                ``the Act does not permit derivative withholding of removal under any
                circumstances''); INA 208(b)(3)(A), 8 U.S.C. 1158(b)(3)(A) (statutory
                provision allowing asylum status to be granted to accompanying or
                following-to-join spouse or children of a noncitizen granted asylum; no
                equivalent statutory or regulatory provision for individuals granted
                withholding or deferral of removal).
                2. Expedited Removal and Screenings in the Credible Fear Process
                 In the Illegal Immigration Reform and Immigrant Responsibility Act
                of 1996 (``IIRIRA''), Public Law 104-208, div. C, 110 Stat. 3009, 3009-
                546, Congress established the expedited removal process. The process is
                applicable to noncitizens arriving in the United States (and, in the
                discretion of the Secretary, certain other designated classes of
                noncitizens) who are found to be inadmissible under either section
                212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material
                misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C.
                1182(a)(7), regarding documentation requirements for admission. Under
                expedited removal, such noncitizens may be ``removed from the United
                States without further hearing or review unless the [noncitizen]
                indicates either an intention to apply for asylum under section 1158 of
                this title or a fear of persecution.'' INA 235(b)(1)(A)(i), 8 U.S.C.
                1225(b)(1)(A)(i).
                 The former INS and, later, DHS implemented a screening process,
                known as the ``credible fear'' screening, to identify potentially valid
                claims for asylum, statutory withholding of removal, and CAT
                protection, or, more specifically, to prevent noncitizens placed in
                expedited removal from being removed to a country in which they would
                face persecution or torture. Currently, with regulatory changes made
                from 2018 through 2020 either vacated, enjoined, or delayed, any
                noncitizen who expresses a fear of persecution or torture, a fear of
                return, or an intention to apply for asylum during the course of the
                expedited removal process is referred to a USCIS asylum officer for an
                interview to determine whether the noncitizen has a credible fear of
                persecution or torture in the country of return. INA 235(b)(1)(A)(ii),
                (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4),
                1235.3(b)(4)(i). If the asylum officer determines that the noncitizen
                does not have a credible fear of persecution or torture, the noncitizen
                may request that an IJ review that determination. See INA
                235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR
                208.30(g), 1208.30(g).
                 Under the regulatory framework prior to November 2018 and currently
                in effect,\31\ if the asylum officer determines that a noncitizen
                subject to expedited removal has a credible fear of persecution or
                torture, DHS refers the noncitizen to an immigration court for
                adjudication of the noncitizen's claims by initiating section 240
                removal proceedings through service of an NTA on the noncitizen and
                with the court. See 8 CFR 208.30(f), 235.6(a)(1)(ii), 1235.6(a)(1)(ii)
                (2018). Similarly, if an IJ, upon review of the asylum officer's
                negative credible fear determination, finds that the noncitizen
                possesses a credible fear of persecution or torture, the IJ vacates the
                expedited removal order and DHS initiates section 240 removal
                proceedings. See id. 1208.30(g)(2)(iv)(B). If the noncitizen
                subsequently decides to file for asylum, the asylum application is
                filed with the court during the section 240 removal proceedings, is
                considered a ``defensively filed'' application, and is subject to the
                one-year filing deadline. See INA 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B).
                There is no requirement that the noncitizen file an asylum application,
                however, once placed into section 240 removal proceedings.
                ---------------------------------------------------------------------------
                 \31\ See supra note 24 (discussing the status of more recent
                regulatory changes).
                ---------------------------------------------------------------------------
                III. Discussion of the Proposed Rule
                 As noted in the summary above, this proposed rule would make
                several changes to the adjudication process of protection claims
                presented by noncitizens in expedited removal who both make fear claims
                and are determined to have a credible fear of persecution or torture. A
                more detailed explanation of the proposed changes, the reasons for
                these changes, and their alignment with the relevant statutes, as well
                as a brief outline of certain other changes proposed by this rule,
                follows.
                A. Parole--Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii)
                 The expedited removal statute provides for detention throughout the
                expedited removal process, including during the credible fear screening
                process and during the process for further consideration of the
                protection claims on their merits. The statute does not, however, limit
                DHS's general parole authority under section 212(d)(5) of the INA, 8
                U.S.C. 1182(d)(5), and 8 CFR 212.5(b), and the Departments have not
                understood the language providing for detention in expedited removal to
                limit this parole authority. Instead, parole authority in the context
                of expedited removal has been specifically provided for in the relevant
                regulations covering expedited removal and the credible fear screening
                process since they were first implemented in 1997. See Inspection and
                Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
                of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10356 (Mar. 6,
                1997) (interim final rule). And the U.S. Supreme Court recently
                acknowledged in Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), that
                DHS may exercise its authority to temporarily parole persons subject to
                expedited removal, while also acknowledging that the relevant statutory
                language in section 235(b)(1) and (b)(2) of the INA, 8 U.S.C.
                1225(b)(1), (b)(2), ``unequivocally mandate that aliens falling within
                their scope `shall' be detained,'' id. at 844.
                 Since expedited removal's implementation regulations were first
                promulgated, parole consideration has been limited to a narrow category
                of circumstances for individuals awaiting a credible fear
                determination--when necessary ``to meet a medical emergency or . . .
                for a legitimate law enforcement objective.'' See 8 CFR
                235.3(b)(2)(iii), (b)(4)(ii) (current). This proposed rule change would
                add to those grounds, allowing parole when ``detention is unavailable
                or impracticable (including situations in which continued detention
                would unduly impact the health or safety of individuals with special
                vulnerabilities).'' 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (proposed). This
                change would allow DHS to prioritize use of its limited detention bed
                space to detain those noncitizens who pose the greatest threats to
                national security and public safety, while avoiding unnecessary
                operational limitations on DHS's authority to place noncitizens into
                expedited removal. Under the proposed rule, when detention space is
                unavailable or its use is otherwise impracticable, DHS would have the
                option of using parole rather than placing nearly all families arriving
                at the border directly into section 240 removal proceedings. The
                proposed rule also makes clear that a grant of parole only
                [[Page 46914]]
                authorizes release from custody and cannot serve as an independent
                basis for employment authorization under 8 CFR 274a.12(c)(11).\32\ See
                8 CFR 235.3(b)(4)(ii) (proposed). The Departments are seeking public
                comment on this change in the circumstances under which parole may be
                considered in the expedited removal context, as well as the use of
                (c)(11) employment authorization documents (``EADs'') for those in
                expedited removal who have been paroled from custody.
                ---------------------------------------------------------------------------
                 \32\ As noted elsewhere in this preamble, this proposed rule is
                not intended to rescind previously enjoined or vacated rules.
                Accordingly, the Departments are proposing that those in the
                credible fear process who have been paroled from custody would be
                ineligible for a (c)(11) employment authorization document
                (``EAD''), similar to what was implemented with the final rule
                entitled Asylum Application, Interview, and Employment Authorization
                for Applicants, 85 FR 38532, 38582 (June 26, 2020). A Federal
                district court preliminarily enjoined certain provisions of the rule
                but only as applied to the plaintiffs in that case, and the EAD-
                parole provision similar to the one proposed here was not challenged
                in that litigation. See Casa de Maryland, Inc. v. Wolf, 486 F. Supp.
                3d 928, 935 (D. Md. 2020) (``preliminarily enjoin[ing] Defendants
                from enforcing a subset of the rule changes as applied to the
                individual members of Plaintiffs Casa de Maryland, Inc. (`CASA') and
                Asylum Seeker Advocacy Project (`ASAP')''). The Departments are
                seeking public comment on the use of (c)(11) EADs for those in
                expedited removal who have been paroled from custody.
                ---------------------------------------------------------------------------
                B. Credible Fear Screening Process--Proposed 8 CFR 208.30
                 As noted earlier, there were several rules published by the
                Departments from the end of 2018 through the end of 2020 that attempted
                to change the credible fear screening process that had been in place
                for approximately 20 years, but these rules are not in effect.\33\ The
                Global Asylum rule, which, as explained above, has been enjoined,
                attempted to change the pre-2018 practice of not applying the mandatory
                bars to asylum and statutory withholding in the credible fear screening
                process, instead requiring a final determination on the applicability
                of a significantly expanded list of mandatory bars during credible fear
                screenings and mandating a negative credible fear finding should any of
                the bars be determined to apply to the noncitizen at that initial
                stage. 85 FR at 80278. In addition, the Global Asylum rule attempted to
                alter the longstanding practice for screening claims for statutory
                withholding of removal and CAT protection. Prior to the rule, the
                statutory standard for screening asylum claims (i.e., a ``significant
                possibility'' of establishing eligibility for asylum) was also used to
                screen withholding of removal and CAT claims. The Global Asylum rule
                attempted to create a more complicated two-step, two-standard screening
                by requiring a higher screening standard for such claims (i.e., a
                ``reasonable possibility'' of persecution or torture). Id. The Security
                Bars rule, issued less than 2 weeks after the Global Asylum rule,
                further expanded the list of mandatory bars to asylum that would apply
                in the credible fear screening process, 85 FR at 84160, but its
                implementation has been delayed until the end of 2021, 86 FR at 15069.
                ---------------------------------------------------------------------------
                 \33\ See supra note 24.
                ---------------------------------------------------------------------------
                 With this proposed rule, the Departments generally seek to return
                the credible fear screening process regulations to the simpler
                screening process that was in place for expedited removal's first two
                decades of implementation. Given the injunctions, delays, and vacaturs
                referenced above, this rule proposes to recodify in the Code of Federal
                Regulations the standard of ``significant possibility'' that has
                remained in effect since the rule changing that standard has been
                enjoined. Pangea Legal Servs. v. DHS, No. 20-cv-09253, 2021 WL 75756,
                at *7 (N.D. Cal. Jan. 8, 2021) (preliminarily enjoining the Global
                Asylum rule). The Departments believe that this change will make for a
                more efficient and effective credible fear screening process and is
                also necessary to make that screening process consistent with
                congressional intent.
                 The 104th Congress chose a screening standard ``intended to be a
                low screening standard for admission into the usual full asylum
                process.'' \34\ Originally, the Senate bill had proposed a
                ``determination of whether the asylum claim was `manifestly unfounded,'
                while the House bill applied a `significant possibility' standard
                coupled with an inquiry into whether there was a substantial likelihood
                that the alien's statements were true.'' \35\ In IIRIRA, Congress then
                ``struck a compromise by rejecting the higher standard of credibility
                included in the House bill.'' \36\ This proposed regulation would now
                return the screening standard to the ``low screening standard''
                intended by the compromise reflected in the text that Congress
                ultimately passed. Rather than creating a complicated screening process
                that requires full evidence gathering and determinations to be made on
                possible bars to eligibility, this proposed rule aims to return to
                allowing protection claims with a ``significant possibility'' of
                success to be fully heard and adjudicated, but in a process that more
                quickly reaches a final decision on the merits than the current
                process.
                ---------------------------------------------------------------------------
                 \34\ 142 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement
                of Senate Judiciary Committee Chairman Orrin Hatch).
                 \35\ Id. The chairman of the conference committee assigned to
                reconcile the two bills, Rep. Henry Hyde, stated that ``[t]he
                credible fear standard is redrafted in the conference document to
                address fully concerns that the `more probable than not' language in
                the original House version was too restrictive.'' 142 Cong. Rec.
                H11081 (daily ed. Sept. 25, 1996) (statement of House Judiciary
                Committee Chairman Henry Hyde). The exact language in section 302 of
                the House bill, H.R. 2202, 104th Cong. (1995), was as follows: ``the
                term `credible fear of persecution' means (I) that it is more
                probable than not that the statements made by the alien in support
                of the alien's claim are true, and (II) that there is a significant
                possibility, in light of such statements and of such other facts as
                are known to the officer, that the alien could establish eligibility
                for asylum under section 208.'' The conference committee compromise
                stuck subsection (I) from the definition of credible fear.
                 \36\ 142 Cong. Rec. S11491 (statement of Sen. Hatch).
                ---------------------------------------------------------------------------
                 To accomplish this, the proposed rule would replace all the
                references throughout 8 CFR 208.30 to a ``credible fear of persecution,
                reasonable possibility of persecution, or a reasonable possibility of
                torture'' with ``credible fear,'' acknowledging that the statutory
                ``significant possibility'' standard, INA 235(b)(1)(B)(v), 8 U.S.C.
                1225(b)(1)(B)(v), would be applied in considering all three types of
                protection claims--asylum, statutory withholding, and protection under
                the CAT.\37\ Consistent with that change, the proposed rule would
                revise 8 CFR 208.30 to return the definition of the ``credible fear''
                standard to the ``significant possibility'' definition provided in the
                statute (paragraph (e)(2)), replace the ``reasonable possibility''
                standard with the same ``significant possibility'' screening standard
                for statutory withholding of removal and CAT withholding or deferral of
                removal (paragraphs (e)(2) and (3)), return the language in the
                regulation to reflect the existing and two-decade long practice of not
                applying the mandatory bars to the credible fear screening
                determination (paragraph (e)(5)),\38\ maintain the
                [[Page 46915]]
                threshold screening under the safe third country agreement with Canada
                (paragraph (e)(6)), and continue to require supervisory review of all
                credible fear determinations before they can become final (paragraph
                (e)(8)). The Departments seek comment on these changes and also request
                comment on whether any additional changes to the provisions of the
                Global Asylum and Security Bar rules are necessary or appropriate to
                accomplish the objectives outlined in this section.
                ---------------------------------------------------------------------------
                 \37\ These proposed changes would not alter reasonable fear of
                persecution or torture determinations involving noncitizens ordered
                removed under section 238(b) of the INA, 8 U.S.C. 1228(b), and
                noncitizens whose removal is reinstated under section 241(a)(5) of
                the INA, 8 U.S.C. 1251(a)(5), pursuant to 8 CFR 208.31.
                 \38\ This proposed rule does not, and is not intended to,
                rescind prior rulemakings, including Implementing Bilateral and
                Multilateral Asylum Cooperative Agreements Under the Immigration and
                Nationality Act, 84 FR 63994 (Nov. 19, 2019); Aliens Subject to a
                Bar on Entry Under Certain Presidential Proclamations; Procedures
                for Protection Claims, 83 FR 55934 (Nov. 9, 2018); and Asylum
                Eligibility and Procedural Modifications, 85 FR 82260 (Dec. 17,
                2020). To that end, the Departments have proposed to change 8 CFR
                208.30 only to the extent necessary to implement the changes
                proposed in this rule and left the remaining provisions of the
                aforementioned rules to be modified or rescinded by the Departments
                at a later date. See, e.g., OMB, Agenda Rule List--Spring 2021:
                Department of Homeland Security, https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1600. The Departments,
                however, do seek comment on whether the changes proposed in this
                rule would require any other rescissions or modifications of the
                provisions adopted in recent prior rulemakings.
                ---------------------------------------------------------------------------
                 As part of the proposed restructuring of the credible fear
                determination framework, the proposed rule would also remove the
                current language at 8 CFR 208.30(g)(2)(i) providing that DHS may
                reconsider a negative credible fear finding that has been reviewed and
                upheld by an IJ.\39\ Section 208.30(g)(1)(i) would be revised to
                provide that once the asylum officer has made a negative credible fear
                determination, the individual either requests IJ review or declines to
                request review and that declination is treated as a request for review
                and the individual is served with a Form I-863. At that point, under
                the proposed rule, the IJ has sole jurisdiction to review whether the
                individual has established a credible fear of persecution or torture,
                and an asylum officer may not reconsider or reopen the determination.
                ---------------------------------------------------------------------------
                 \39\ The proposed versions of the Global Asylum rule and the
                Security Bars rule both dropped the regulatory provision previously
                in 8 CFR 1208.30(g)(2) that acknowledged USCIS's ability to
                reconsider a negative credible fear finding that had already
                received IJ concurrence, but the Departments responded to comments
                received about this change by reinserting the provision into 8 CFR
                208.30(g) in the final rules, stating that the provision had been
                omitted from the proposed rule inadvertently. 85 FR at 80275, 84181.
                This proposed rule again proposes this change but does so for the
                reasons provided herein.
                ---------------------------------------------------------------------------
                 These proposed changes reflect an intention to return to the
                statutory scheme of INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B), under
                which it is the IJ review of the credible fear determination that
                serves as the check to ensure that individuals who have a credible fear
                are not returned based on an erroneous screening determination by
                USCIS. Section 208.30(g)(1)(i) is amended to provide that, when DHS
                inquires whether an individual wishes to have an IJ review a negative
                credible fear determination, DHS will inform the individual that the IJ
                review will include an opportunity for the individual to be heard and
                questioned by the IJ. See 8 CFR 208.30(g)(1) (proposed). This
                opportunity will allow such individuals to present any additional
                evidence or arguments they may wish to make to the IJ, who will
                consider them in making a de novo determination about whether the
                individual has a credible fear of persecution or torture.
                 The clarification that the IJ has sole jurisdiction to review the
                individual's negative credible fear determination and that asylum
                officers may not reconsider or reopen a determination that already has
                passed to the jurisdiction of the IJ is necessary to ensure that
                requests for reconsideration to USCIS do not obstruct the streamlined
                process that Congress intended in creating expedited removal. Further,
                this clarification ensures that the necessary efficiencies implemented
                in this proposed rule are not undermined.
                 The expedited removal statute and its implementing regulations
                generally prohibit any further administrative review or appeal of an
                IJ's decision made after review of a negative credible fear
                determination. See INA 235(b)(1)(B)(iii)(III), (C), 8 U.S.C.
                1225(b)(1)(B)(iii)(III), (C); 8 CFR 1003.42(f)(2),
                1208.30(g)(2)(iv)(A). Congress similarly has made clear its intent that
                expedited removal should remain a streamlined, efficient process by
                limiting judicial review of many determinations in expedited removal.
                See INA 242(a)(2)(A), (e), 8 U.S.C. 1252(a)(2)(A), (e). These
                provisions limiting administrative and judicial review and directing
                expeditious determinations reflect clear congressional intent that
                expedited removal be a truly expedited process. Removal of the current
                language at 8 CFR 208.30(g)(2)(i) allowing DHS to reconsider negative
                credible fear determinations after the IJ concurs is consistent with
                that congressional intent and with the purpose of the current
                regulation.
                 In recent years, USCIS has received growing numbers of meritless
                reconsideration requests, which have strained agency resources and
                resulted in significant delays to the expedited removal process. The
                total time to review a reconsideration request varies widely, but if an
                office recommends a follow-up interview, then the complete review
                process could take more than 5 hours per request. The Departments
                believe that these resources could be far better spent, including in
                training and supervisory efforts, to ensure the high quality of USCIS
                initial screening determinations. In many cases, reconsideration
                requests that previously were considered are resubmitted numerous times
                without additional information, resulting in additional delays in
                removal processes that Congress explicitly intended to be conducted
                through streamlined, efficient procedures.
                 These developments have highlighted the need to ensure that the IJ
                review process, rather than reconsideration by USCIS, serves as the
                safeguard against erroneous negative screening determinations by an
                asylum officer. These changes will ensure that DOJ and DHS
                implementation of the expedited removal provisions is consistent with
                statutory intent. The Departments believe these changes will help
                accomplish the purpose of the present rule to make the framework of the
                screening process, including the process following USCIS's fear
                determination, more efficient and streamlined, while ensuring due
                process is accorded to all individuals in expedited removal. The
                Departments seek comments on these proposed changes, including on other
                options short of eliminating reconsideration entirely--such as imposing
                restrictions on, or modifications to, reconsideration requests made to
                USCIS--to address the problems outlined above, while also ensuring
                efficiency and the opportunity to have one's protection claim properly
                screened.
                C. Applications for Asylum--Proposed 8 CFR 208.3(a) and 208.9(a)
                 The expedited removal statute specifically provides for an
                exception to the mandate that a noncitizen be ``removed from the United
                States without further hearing or review'' when the noncitizen
                expresses an intention to apply for asylum, a fear of persecution or
                torture, or a fear of return to the country of removal. Such a person
                instead is referred to USCIS for a credible fear screening. INA
                235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). If the noncitizen is
                found to have a credible fear of removal, the noncitizen's claim is
                referred for ``further consideration of the application for asylum.''
                INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). This statutory
                language, however, does not specify the nature of such ``further
                consideration.''
                 Under current regulations, an individual who establishes a credible
                fear is placed into removal proceedings under section 240 of the INA, 8
                U.S.C. 1229a. Under this process, the individual is not required to
                officially request asylum or file the Form I-589,
                [[Page 46916]]
                Application for Asylum and for Withholding of Removal (``Form I-589''),
                until after being placed into removal proceedings. In many cases, the
                application may be filed many months after removal proceedings are
                initiated, thus potentially delaying adjudication. In many other cases,
                an application is never filed. EOIR has reported that, for individuals
                who were referred to USCIS for the credible fear screening process and
                then placed into proceedings before EOIR between FY 2008 and the third
                quarter of FY 2020, only 62 percent have filed an asylum application
                with EOIR as of July 2020.\40\
                ---------------------------------------------------------------------------
                 \40\ EOIR, Executive Office for Immigration Review Adjudication
                Statistics: Rates of Asylum Filings in Cases Originating with a
                Credible Fear Claim (July 2020), https://www.justice.gov/eoir/page/file/1062971/download.
                ---------------------------------------------------------------------------
                 Under this proposed rule, an individual who passes the initial
                credible fear screening would have his claim reviewed by an asylum
                officer in USCIS in the first instance, rather than by an IJ in a
                removal hearing under section 240 of the INA. As part of this new
                procedure for ``further consideration,'' and to eliminate delays
                between a positive credible fear determination and the filing of an
                application for asylum, the Departments propose that the written record
                of the credible fear determination created by USCIS during the credible
                fear process, and subsequently served on the individual together with
                the service of the credible fear decision itself, would be treated as
                an ``application for asylum,'' with the date of service on the
                individual considered the date of filing. 8 CFR 208.3(a)(2) (proposed).
                Every individual who receives a positive credible fear determination
                would be considered to have filed an application for asylum at the time
                the determination is served on him or her. The application would be
                considered filed or received as of the service date for purposes of the
                1-year filing deadline for asylum, see INA 208(a)(2)(B), 8 U.S.C.
                1158(a)(2)(B), and for starting the clock for eligibility to file for
                work authorization on the basis of a pending asylum application, 8 CFR
                208.3(c)(3) (current). The Departments propose that this application
                for asylum would not be subject to the completeness requirement of 8
                CFR 208.3(c) and 208.9(a) in order to qualify for hearing and
                adjudication, but it would be subject to the other conditions and
                consequences provided for in 8 CFR 208.3(c) once the noncitizen signs
                the documentation under penalty of perjury and with notice of the
                consequences of the filing of a frivolous asylum application at the
                time of the asylum officer hearing.\41\
                ---------------------------------------------------------------------------
                 \41\ In addition, the Departments are proposing to amend 8 CFR
                1208.3 and 1208.4 to account for changes made by this proposed rule,
                including the proposed provisions that would treat the credible fear
                interviews as an application for asylum in the circumstances
                addressed by the proposed rule. The amendment at 8 CFR 1208.3(c)(3)
                affects language that was enacted by DOJ in 2020. See Procedures for
                Asylum and Withholding of Removal, 85 FR 81698 (Dec. 16, 2020). The
                December 16, 2020 rulemaking made various changes to DOJ
                regulations, including 8 CFR 1208.3(c)(3). Id. Those changes remain
                enjoined. See National Immigrant Justice Center, et. al., v. Exec.
                Office for Immigration Review, et. al., No. 21-CV-00056 (D.D.C.). As
                noted above, the proposed rule would make changes to the regulations
                only as necessary to effectuate its goals. The Departments
                anticipate that additional changes to the relevant regulations,
                including rescission of or revision to the language added by the
                enjoined regulation, will be made through later rulemakings.
                ---------------------------------------------------------------------------
                 The Departments plan to implement these changes to the credible
                fear process by having the trained USCIS asylum officer conducting the
                credible fear interview advise the noncitizen of the consequences of
                filing a frivolous asylum application and capture the noncitizen's
                relevant information through testimony provided under oath. During this
                process, the asylum officer would ``elicit all relevant and useful
                information'' for the credible fear determination, id. Sec. 208.30(d),
                create a summary of the material facts presented by the noncitizen
                during the interview, read the summary back to the noncitizen, and
                allow the noncitizen to correct any errors, id. Sec. 208.30(d)(6). The
                record created would contain the necessary biographical information and
                sufficient information related to the noncitizen's fear claim to be
                considered an application. The information captured by the asylum
                officer during the credible fear interview will contain information
                about the noncitizen's spouse and children, including those who were
                not part of the credible fear determination--but under this proposed
                rule only a spouse or children who were included in the credible fear
                determination issued pursuant to proposed 8 CFR 208.30(c) or have a
                pending asylum application with USCIS pursuant to Sec. 208.2(a)(1)(ii)
                can be included on the request for asylum.\42\ See id. Sec.
                208.3(a)(2). A copy of this application for asylum, including the
                officer's notes from the interview and basis for the determination,
                would be provided to the noncitizen at the time that the credible fear
                determination is served. See id. Sec. 208.30(f), (g)(1). As proposed
                in this rule, the noncitizen would be allowed to supplement or request
                modifications or corrections to this application up until 7 days prior
                to the scheduled asylum hearing before a USCIS asylum officer, or for
                documents submitted by mail, postmarked no later than 10 days before
                the scheduled asylum hearing. Id. Sec. 208.3(a)(2).
                ---------------------------------------------------------------------------
                 \42\ While only a spouse or dependent included on the credible
                fear determination or who presently has an asylum application
                pending with USCIS after a positive credible fear determination can
                be included on the subsequent asylum application under this proposed
                process, the noncitizen granted asylum remains eligible to apply for
                accompanying or follow-to-join benefits for any qualified spouse or
                child not included on the asylum application, as provided for in 8
                CFR 208.21. The Departments believe that it is procedurally
                impractical to attempt to include a spouse or child on the
                application when the spouse or child has not previously been placed
                into expedited removal and subsequently referred to USCIS after a
                positive credible fear determination. This is similar to the
                inability to include a spouse or child not in removal proceedings
                under section 240 of the INA on the asylum application of a
                principal asylum application who is in such removal proceedings.
                Under such circumstances, there is no clear basis for issuing a
                final order of removal against such an individual spouse or child
                should the asylum application be denied. The Departments seek
                comments on this proposed approach.
                ---------------------------------------------------------------------------
                 The information required to be gathered during the credible fear
                screening process is based on the noncitizen's own testimony under oath
                in response to questions from a trained USCIS asylum officer. Thus, the
                Departments believe that the screening would provide sufficient
                information upon which to conduct a full asylum interview. Under this
                proposed rule, all noncitizens who receive a positive credible fear
                determination would have an asylum application on file with the
                Government within days of their credible fear screenings, thereby
                meeting the one-year asylum filing deadline, avoiding the risk of
                filing delays, and immediately beginning the waiting period for work
                authorization eligibility. Understanding that noncitizens may want to
                modify, correct, or supplement the initial presentation of their
                protection claims, this proposed rule would allow the noncitizen to do
                so in advance of the hearing before the asylum officer. The Departments
                seek comments on all aspects of this proposed change.
                D. Proceedings for Further Consideration of the Application for Asylum
                by USCIS Asylum Officer in Asylum and Withholding Merits Hearing for
                Noncitizens With Credible Fear--Proposed 8 CFR 208.2(a) and (c);
                208.9(a), (f), and (g); 208.14(c)(5); 208.30(e) and (f); 235.6(a)(1);
                1003.42; and 1208.30(g)
                 As noted earlier in the preamble, under the current regulatory
                framework, if an asylum officer determines that a noncitizen subject to
                expedited removal has a credible fear of persecution or
                [[Page 46917]]
                torture, DHS places the noncitizen before an immigration court for
                adjudication of the noncitizen's claims by initiating section 240
                removal proceedings.\43\ Similarly, if an IJ, upon review of the asylum
                officer's negative credible fear determination, finds that the
                noncitizen possesses a credible fear of persecution or torture, the IJ
                vacates the expedited removal order, and DHS initiates section 240
                removal proceedings. 8 CFR 1208.30(g)(2)(iv)(B). Section 240 removal
                proceedings, which are used to determine removability as well as
                eligibility for any relief or protection from removal, currently
                provide additional procedural protections, including greater
                administrative and judicial review, than expedited removal proceedings
                under section 235 of the Act. Compare INA 235(b)(1), 8 U.S.C.
                1225(b)(1), with INA 240, 8 U.S.C. 1229a.
                ---------------------------------------------------------------------------
                 \43\ See 8 CFR 208.30(f) (2018); supra note 24 (explaining that
                various changes to these procedures have been enjoined).
                ---------------------------------------------------------------------------
                 As noted previously, however, the expedited removal statute
                provides only that a noncitizen who is found to have a credible fear
                ``shall be detained for further consideration of the application for
                asylum.'' INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii). The statute
                mandates neither that the noncitizen be placed in removal proceedings
                generally nor placed in section 240 removal proceedings specifically.
                Id.
                 The regulations regarding the credible fear process, and the
                interplay between expedited removal and section 240 removal
                proceedings, were first adopted in 1997.\44\ At the time, the former
                INS explicitly recognized that ``the statute is silent as to the
                procedures for those who do demonstrate a credible fear of
                persecution.'' \45\ Faced with this ambiguity, the INS opted at the
                time to have the further consideration take place in pre-existing
                section 240 removal proceedings rather than create new proceedings for
                this purpose.\46\ But the INS's contemporaneous analysis was very
                limited.
                ---------------------------------------------------------------------------
                 \44\ Inspection and Expedited Removal of Aliens; Detention and
                Removal of Aliens; Conduct of Removal Proceedings; Asylum
                Procedures, 62 FR 10312 (Mar. 6, 1997) (interim final rule).
                 \45\ Id. at 10320; see Inspection and Expedited Removal of
                Aliens; Detention and Removal of Aliens; Conduct of Removal
                Proceedings; Asylum Procedures, 62 FR 444, 447 (Jan. 3, 1997)
                (proposed rule) (noting that although the statute calls for further
                consideration of the noncitizen's asylum application, it ``does not
                specify how or by whom this further consideration should be
                conducted'').
                 \46\ 62 FR at 10320.
                ---------------------------------------------------------------------------
                 The Departments believe that section 235(b)(1) of the INA, 8 U.S.C.
                1225(b)(1), authorizes a procedure for ``further consideration of [an]
                application for asylum'' that is separate from section 240 removal
                proceedings. By its terms, the phrase ``further consideration'' is
                open-ended and does not mandate any particular procedure. It is thus
                naturally read as giving DHS flexibility to determine the appropriate
                procedure for consideration of noncitizens' asylum claims after
                establishing a credible fear in the expedited removal process.
                Moreover, while section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1),
                mandates that a noncitizen with a positive credible fear determination
                receive ``further consideration of [the noncitizen's] application for
                asylum,'' section 235(b)(2) of the INA, 8 U.S.C. 1225(b)(2), mandates
                that other classes of noncitizens receive ``a proceeding under section
                1229a of this title,'' i.e., section 240 of the INA. Compare INA
                235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with INA 235(b)(2)(A), 8
                U.S.C. 1225(b)(2)(A). The difference in language suggests that section
                235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), does not require use of
                section 240 removal proceedings, in contrast to section 235(b)(2), 8
                U.S.C. 1225(b)(2), which does. The Supreme Court has observed that
                ``[w]here Congress includes particular language in one section of a
                statute but omits it in another section of the same act, it is
                generally presumed that Congress acts intentionally and purposely in
                the disparate inclusion or exclusion.'' Russello v. United States, 464
                U.S. 16, 23 (1983) (internal quotation marks and citation omitted).
                More recently, the D.C. Circuit stated that it has ``consistently
                recognized that a congressional mandate in one section and silence in
                another often suggests not a prohibition but simply a decision not to
                mandate any solution in the second context, i.e., to leave the question
                to agency discretion.'' Catawba Cty., N.C. v. EPA, 571 F.3d 20, 36
                (D.C. Cir. 2009) (emphasis in original) (internal quotation marks and
                citation omitted).\47\ The inference that Congress's silence
                intentionally permits agency discretion is reinforced by the fact that
                the noncitizens whom DHS has elected to process into the United States
                using the expedited removal procedure are expressly excluded from the
                class of noncitizens who are statutorily guaranteed section 240 removal
                proceedings under section 235(b)(2)(A) of the INA, 8 U.S.C.
                1225(b)(2)(A). See INA 235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).
                ---------------------------------------------------------------------------
                 \47\ See also Henson v. Santander Consumer USA, Inc., 137 S. Ct.
                1718, 1723 (2017) (``[U]sually at least, . . . we presume
                differences in language . . . convey differences in meaning.'').
                ---------------------------------------------------------------------------
                 Second, a noncitizen with a positive credible fear determination is
                entitled only to a further proceeding related to their ``application
                for asylum,'' or for withholding of removal under section 241(b)(3) of
                the INA, 8 U.S.C. 1251(b)(3), or withholding or deferral of removal
                under the regulations implementing U.S. obligations under Article 3 of
                the CAT. INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii); 8 CFR
                208.30(e). An asylum application's purpose is to determine whether the
                noncitizen is entitled to relief or protection from removal, not
                whether the noncitizen should be admitted or granted other immigration
                benefits. See Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021) (``[A]
                foreign national can be in lawful status but not admitted--think of
                someone who entered the country unlawfully, but then received
                asylum.''); Matter of V-X-, 26 I&N Dec. 147, 150 (BIA 2013) (holding
                that, ``although [a noncitizen's] grant of asylum confer[s] a lawful
                status upon him, it [does] not entail an `admission' ''). By contrast,
                the purpose of a section 240 removal proceeding is to ``determin[e]
                whether [a noncitizen] may be admitted to the United States.'' INA
                240(a)(3), 8 U.S.C. 1229a(a)(3). In section 240 removal proceedings,
                both removability and entitlement to various forms of relief or
                protection are determined. Compare INA 235(b)(1)(B)(ii), 8 U.S.C.
                1225(b)(1)(B)(ii), with INA 240(c)(2)-(4), 8 U.S.C. 1229a(c)(2)-
                (4).\48\ Moreover, the Departments believe that it is better policy to
                place noncitizens with a positive credible fear determination initially
                in nonadversarial proceedings in which their asylum claims can be
                adjudicated by asylum officers.
                ---------------------------------------------------------------------------
                 \48\ The Departments acknowledge that there is some legislative
                history suggesting that some Members of Congress believed that
                individuals found to have a credible fear would be referred to
                section 240 removal proceedings. See, e.g., H.R. Rep. No. 104-828,
                at 209 (1996) (suggesting that noncitizens who received positive
                credible fear determinations would be placed in ``normal non-
                expedited removal proceedings''). But the Departments are not
                convinced that the legislative history is sufficiently clear to
                foreclose an option the text itself does not ``unambiguously
                forbid.'' Barnhart v. Walton, 535 U.S. 212, 218 (2002). Indeed,
                other Members of Congress took a different view. See Letter for
                Richard A. Sloan, Director, Policy Directives and Instructions
                Branch, Immigration and Naturalization Service, from Lamar Smith,
                Chairman, Subcommittee on Immigration and Claims, Re: INS 1788-96,
                RIN 1115-AE47 (Feb. 3, 1997), in Implementation to Title III of the
                Illegal Immigration Reform and Immigrant Responsibility Act of 1996:
                Hearing Before the Subcomm. on Immigration and Claims of the H.
                Comm. on the Judiciary, 105th Cong. 21-22 (1997) (``Section
                235(b)(1)(B)(ii) [was] drafted deliberately to leave flexibility
                regarding how the asylum adjudication would take place.'').
                ---------------------------------------------------------------------------
                 The idea of allowing USCIS asylum officers to fully adjudicate the
                [[Page 46918]]
                protection claims made by noncitizens who receive a positive credible
                fear determination is not new. In its congressionally mandated 2005
                report on the expedited removal process, the U.S. Commission on
                International Religious Freedom (``USCIRF'') recommended that asylum
                officers be allowed to grant asylum to ease ``the burden on the
                detention system, the immigration courts, and bona fide asylum seekers
                in Expedited Removal.'' \49\ The USCIRF repeated this recommendation
                when it conducted a follow-up study and issued an updated report in
                2016, stating as follows:
                ---------------------------------------------------------------------------
                 \49\ USCIRF, Report on Asylum Seekers in Expedited Removal,
                Volume I: Findings & Recommendations 66 (Feb. 2005), https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/Volume_I.pdf.
                 One solution to reduce the immigration courts' caseload and
                backlog is to allow asylum officers to adjudicate defensive asylum
                claims, as USCIRF recommended in the 2005 Study. Asylum officers
                have the legal background and training to adjudicate asylum claims,
                and do so for affirmative asylum cases. Further, having an asylum
                officer review a credible fear claim and then having an immigration
                judge review an asylum claim creates significant redundancy without
                necessarily adding value.\50\
                ---------------------------------------------------------------------------
                 \50\ USCIRF, Barriers to Protection: The Treatment of Asylum
                Seekers in Expedited Removal 54 (Aug. 2016), https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf.
                 In 2012, the Administrative Conference of the United States studied
                the removal process and also issued recommendations that regulations be
                changed to allow for asylum officers to adjudicate protection claims
                for noncitizens determined to have a credible fear as part of a package
                of proposals to improve the operations of the immigration courts.\51\
                More recently, experts from the Migration Policy Institute (``MPI'')
                reached a similar conclusion in a 2018 report on the state of the U.S.
                asylum system. MPI concluded as follows:
                ---------------------------------------------------------------------------
                 \51\ Administrative Conference of the United States,
                Administrative Conference Recommendation 2012-3: Immigration Removal
                Adjudication 15 (June 15, 2012), https://www.acus.gov/sites/default/files/documents/2012-3.pdf.
                 Allowing cases with positive credible-fear findings to instead
                remain with the Asylum Division for the full asylum merits
                adjudication would capitalize on the investment of time and
                expertise the division has already made. It would also enable
                meritorious cases to be resolved more quickly, reducing the overall
                asylum system backlogs and using limited asylum officer and IJ
                resources more efficiently.\52\
                ---------------------------------------------------------------------------
                 \52\ Doris Meissner, Faye Hipsman, & T. Alexander Aleinikoff,
                The U.S. Asylum System in Crisis: Charting a Way Forward 3,
                Migration Policy Institute (Sept. 2018), https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf.
                In reaching this conclusion, these experts noted that moving the cases
                to the USCIS Asylum Division for adjudication plays to its strengths,
                including its experience in handling asylum and asylum-related
                adjudications; its regular trainings on asylum-related country
                conditions and legal issues, as well as nonadversarial interviewing
                techniques; and its ready access to country conditions experts.
                Additionally, the MPI experts concluded that nonadversarial proceedings
                are well suited for this process because they are ``considerably less
                resource-intensive than immigration court proceedings'' and ``lend
                themselves to a fuller understanding of the strengths and weaknesses of
                an applicant's case.'' \53\ The DHS Homeland Security Advisory
                Council's (``HSAC'') bipartisan CBP Families and Children Care Panel
                also included this recommendation in its final report to the
                Secretary.\54\ This panel of the HSAC was created at the request of the
                Secretary in October 2018 to study ``the burgeoning humanitarian crisis
                resulting from a surge in migration of families, primarily from
                Guatemala and Honduras, overwhelming the DHS resources at the border to
                address the crisis.'' \55\
                ---------------------------------------------------------------------------
                 \53\ Id. at 26.
                 \54\ HSAC, CBP Families and Children Care Panel Final Report 24
                (Nov. 14, 2019), https://www.dhs.gov/sites/default/files/publications/fccp_final_report_1.pdf.
                 \55\ Id. at 4.
                ---------------------------------------------------------------------------
                 The Departments acknowledge that the above recommendations assumed
                that individuals denied asylum by a USCIS asylum officer would be
                issued an NTA and placed into section 240 removal proceedings before an
                IJ, where the noncitizen would have a second, full evidentiary hearing
                on the asylum application with a different decision-maker. This
                proposed rule would not adopt that approach, as the Departments
                determined it was unnecessary, duplicative, and inefficient. Instead,
                as noted in the previous section, this proposed rule would establish a
                new process that would require the IJ to conduct a de novo review of a
                denied application for protection when such review is requested, but it
                would not provide the noncitizen with a second full evidentiary hearing
                to present the claim. The Departments believe that an approach
                requiring a full evidentiary hearing before an IJ after an asylum
                officer's denial would lead to inefficiencies without adding additional
                value or procedural protections. Under this proposal, the asylum
                officer will have developed and considered the noncitizen's claim
                fully, including by taking testimony and accepting evidence, during the
                nonadversarial proceeding. If a noncitizen seeks review of an asylum
                officer's denial, the IJ would have a complete record for review
                developed by the asylum officer (including a transcript of the hearing
                and any evidence offered by the applicant or otherwise considered by
                the officer) and the written decision of the asylum officer. The
                noncitizen would have a full opportunity to challenge the asylum
                officer's denial during this review process and would not need to
                present their claim at a second full hearing. Instead, to the extent
                that a noncitizen seeks to introduce additional non-duplicative
                testimony or evidence, a provision of the proposed rule would allow
                them to do so if certain requirements are met. See 8 CFR 1003.48(e)
                (proposed). Accordingly, the Departments believe that a second full
                evidentiary hearing before an IJ is unnecessary and inefficient. A
                further description of the proposed review process follows in the next
                section.
                 This proposed rule would change current procedures to allow a
                noncitizen who is found to have a credible fear to have a full
                adjudication of the noncitizen's protection claims by an asylum
                officer. 8 CFR 208.2(a) (proposed) (revising jurisdiction over asylum
                applications in order to provide USCIS jurisdiction to hear asylum
                claims after a positive credible fear determination), id. Sec.
                208.30(f) (retention of a positive credible fear determination with
                USCIS for an asylum hearing); id. Sec. Sec. 1003.42, 1208.30(g)
                (referral of negative credible fear determinations vacated by an IJ to
                USCIS for an asylum hearing). This would supplant the process in place
                prior to this proposed rule whereby DHS referred such an individual
                directly to an IJ for an adversarial hearing in a section 240 removal
                proceeding. Proposed 8 CFR 1003.42 and 1208.30(g) of the EOIR
                regulations reflect similar changes, enabling an IJ who vacates an
                asylum officer's negative credible fear determination to refer the case
                back to USCIS for an asylum hearing.
                 The Departments propose to make corresponding amendments to 8 CFR
                208.2(c), 8 CFR 208.30(e)(5) and (f), and 8 CFR 235.6(a)(1) to provide
                that the cases of individuals who receive a positive credible fear
                determination may be retained by USCIS for a nonadversarial hearing
                before a USCIS asylum officer under the jurisdiction of 8 CFR
                208.2(a)(1)(ii) to determine eligibility for asylum, statutory
                withholding of removal, and
                [[Page 46919]]
                withholding of deferral or removal under CAT. The Departments also
                propose to amend 8 CFR 1003.1, 8 CFR 1003.12, 8 CFR 1208.2, and 8 CFR
                1208.30 of the EOIR regulations, and to add a new section 8 CFR
                1003.48, to make corresponding changes regarding how and when cases
                involving individuals found to have a credible fear would be referred
                by DHS to EOIR.
                 The proposed nonadversarial proceedings for further consideration
                of asylum applications by asylum officers would provide protections
                similar to those provided in section 240 removal proceedings. The
                asylum officer's consideration under this proposal, however, would be
                limited solely to claims for asylum, statutory withholding of removal,
                and withholding or deferral of removal under the CAT regulations. 8 CFR
                208.2(a)(2) (proposed). Under this proposed rule, if the asylum officer
                denies the noncitizen asylum, statutory withholding of removal, and
                protection under the CAT regulations, the noncitizen would be ordered
                removed based upon the immigration officer's earlier inadmissibility
                determination under section 235(b)(1)(A)(i) of the INA, 8 U.S.C.
                1225(b)(1)(A)(i). The noncitizen, may, however appeal an adverse
                decision to an IJ, and if necessary, to the BIA. 8 CFR 208.14(c)(5),
                1003.1(b)(15), 1208.2(b).
                 To allow asylum officers to carry out this new responsibility
                fully, additional changes to the regulations have been proposed. First,
                the Departments propose that under 8 CFR 208.9(f), asylum officers
                would be required to record the asylum hearing and that a transcript of
                that recording would be made part of the record whenever a noncitizen
                denied protection seeks review of a denial. USCIS would transcribe the
                asylum hearing recording and a copy of the transcript and the record
                developed at the hearing would be served on the applicant and filed
                with the immigration court. The hearing would be transcribed prior to
                the record being referred for review. Second, the Departments propose
                that USCIS be required to provide an interpreter for any hearing, just
                as EOIR is required to do for a removal hearing. 8 CFR 208.9(g)
                (proposed). Third, as in section 240 removal proceedings, the
                Departments propose that the noncitizen would be entitled to be
                represented, at no expense to the Government, by counsel of the
                noncitizen's choosing who is authorized to practice in such
                proceedings. See id. Sec. 1003.12 (proposed), 1003.16 (current); cf. 8
                U.S.C. 1229a(b)(4).
                 The Departments propose that the ``failure to appear'' rule at 8
                CFR 208.10 be revised to allow for an order of removal to be issued
                when the noncitizen fails to appear for the scheduled hearing with the
                asylum officer. Changes to 8 CFR 208.16 through 208.19 also are
                proposed in order to provide asylum officers authority to adjudicate
                claims for withholding of removal under section 241(b)(3) of the INA, 8
                U.S.C. 1231(b)(3), and withholding and deferral of removal under the
                regulations implementing the CAT. Existing 8 CFR 208.14(b) already
                provides USCIS the authority to grant an asylum application properly
                within USCIS's jurisdiction, including the jurisdiction given USCIS by
                this proposed rule over asylum applications from noncitizens determined
                to have a credible fear. Similar authority is provided for immigration
                judges in existing 8 CFR 1208.14. Finally, the Departments propose that
                8 CFR 208.14(c)(5) be added to provide the process for USCIS to deny an
                application for asylum, including the issuance of a decision on
                withholding and deferral of removal if asylum is denied; the issuance
                of an order of removal by the asylum officer after the merits hearing;
                and the process for the applicant to seek review of an asylum denial
                before an IJ. Review of these decisions would be governed by proposed 8
                CFR 1003.48. The Departments also propose technical edits to 8 CFR
                208.22 to include references to corresponding sections of both 8 CFR
                part 208 and 8 CFR part 1208. The Departments seek comments on all
                aspects of these proposed changes, including whether different or
                additional decision and review procedures should apply to applications
                considered under this proposed process.
                 The authority of asylum officers to enter an order of removal after
                denying a noncitizen's asylum claim follows from the relevant
                provisions of the INA. By definition, noncitizens who are placed into
                expedited removal already have been determined to be inadmissible and
                are protected from immediate removal only because their credible fear
                of persecution entitled them to further consideration of their asylum
                claim. See INA 235(b)(1), 8 U.S.C. 1225(b)(1). If, after that further
                consideration, an asylum officer concludes that a noncitizen is not
                entitled to asylum, that determination removes the only remaining legal
                barrier to removal. That determination qualifies as an order of removal
                under the relevant statutory definition, which provides that an ``order
                of deportation'' includes not only an order ``ordering deportation,''
                but also an order ``concluding that [a noncitizen] is deportable.'' INA
                101(a)(47)(A), 8 U.S.C. 1101(47)(A). The Seventh Circuit reached the
                same conclusion in addressing another class of noncitizens whose only
                defense to removal is a potential asylum claim: Those who entered under
                the visa-waiver program, INA 217(b)(2), 8 U.S.C. 1187(b)(2). The court
                explained that an order denying such a noncitizen's asylum claim is an
                order of removal because ``an order that is proper only if the
                [noncitizen] is removable implies an order of removal.'' Mitondo v.
                Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). This proposed rule
                therefore would provide that if the noncitizen is not granted asylum at
                the conclusion of the asylum hearing, the asylum officer is authorized
                to issue an order of removal.
                E. Application Review Proceedings Before the Immigration Judge--
                Proposed 8 CFR 1208.2(c), 1003.48
                 The Departments propose to amend 8 CFR 1208.2(c) and add 8 CFR
                1003.48 to establish new IJ review proceedings for those noncitizens
                who establish a credible fear of persecution or torture but (1) were
                found by USCIS not to merit asylum, statutory withholding of removal,
                or protection under the CAT and its implementing regulations; and (2)
                affirmatively request further review of their applications by an IJ.
                The Departments propose that upon a referral of the case from USCIS,
                the IJ would conduct a de novo review of USCIS's denial of the claims.
                 Under these proposed limited review proceedings, unlike under
                section 240 of the INA, 8 U.S.C. 1229a, the IJ would not have authority
                to consider issues related to a noncitizen's removability or a
                noncitizen's eligibility for any other relief from removal. Moreover,
                an IJ ordinarily would not conduct an evidentiary hearing on the
                noncitizen's asylum application. Rather, the IJ would determine, after
                de novo review of the full record of proceedings created during asylum
                officer hearings and consideration of any additional testimony or
                evidence permitted under the proposed process described below, whether
                a noncitizen is eligible for asylum or withholding of removal under the
                Act or withholding or deferral of removal under the CAT. Although the
                Departments intend these proceedings to be more streamlined than
                section 240 removal proceedings, asylum officer and IJ review,
                together, would provide significant protections to ensure that these
                noncitizens continue to receive full and fair adjudication of their
                applications.
                [[Page 46920]]
                 For noncitizens who affirmatively request further review by an IJ,
                the Departments propose that DHS would initiate the review proceedings
                through the service of a Form I-863, Notice of Referral to Immigration
                Judge, on the noncitizen. As proposed in 8 CFR 1003.48(b), DHS would
                file the following items with the immigration court: (1) A copy of the
                Notice of Referral; (2) a copy of the record of proceedings before the
                asylum officer, as outlined in 8 CFR 208.9(f); (3) the asylum officer's
                written decision, including the removal order issued under 8 CFR
                208.14(c)(5) by the asylum officer; and (4) proof that DHS served the
                Notice of Referral, the record of proceedings, and the asylum officer's
                written decision, including the removal order, on the noncitizen.
                Unlike in credible fear determination reviews, where the IJ is provided
                only asylum officers' notes from the interview, the summary of the
                material facts, and other limited records, see, e.g., 8 CFR
                208.30(e)(4), the proposed requirements in 8 CFR 1003.48(b) would
                ensure that cases would only be referred to the immigration courts
                following asylum officers' full nonadversarial adjudication of the
                noncitizens' applications, and that IJs and noncitizens would have
                asylum officers' decisions and complete records of the hearings in
                advance of the IJ review. This would allow the noncitizen to have
                notice of the reasons for the asylum officer's denial in advance of the
                immigration court review process, and it would allow the IJ to conduct
                a thorough review of the asylum officer's decision based on the
                application and complete record developed before the asylum officer.
                Accordingly, because the IJ would be provided the complete record of
                proceedings from the asylum officer hearing, the Departments expect
                that the IJ generally would be able to complete the de novo review
                solely on the basis of the record before the asylum officer, taking
                into consideration any arguments raised by the noncitizen, or the
                noncitizen's counsel, and DHS.
                 That said, the proposed rule recognizes that the factual record as
                elicited by the asylum officer sometimes will need to be further
                developed before the IJ. The rule proposes at 8 CFR 1003.48(e) that an
                IJ does not have the authority to remand a case to an asylum officer
                because the Departments believe that this would be unnecessary and
                inefficient. Instead, the rule proposes that a party may seek to
                introduce additional testimony or documentation so long as the party
                demonstrates to the IJ that the testimony or documentation is not
                duplicative of the testimony or documentation considered by the asylum
                officer and that it is necessary to develop the factual record to allow
                the IJ to issue a reasoned decision in the case. The Departments expect
                that an IJ may, in appropriate cases, require parties to submit
                prehearing statements or briefs concerning whether they will seek to
                introduce additional testimony or documentation and, if so, explaining
                why this testimony or documentation meets the standard at 8 CFR
                1003.48(e). The Departments further expect that, where necessary, for
                example in cases involving pro se applicants, IJs will, before
                proceeding with the case, explain in court the standards for submitting
                additional testimony and documentation. This proposed provision would
                ensure a full and fair evaluation of the applicant's application for
                asylum, withholding of removal under the Act, or withholding or
                deferral of removal under the CAT.
                 The Departments believe that this proposed regulatory scheme--under
                which IJs typically would rely on the record created at the asylum
                officer hearing but could allow additional testimony and evidence if a
                party establishes that doing so is necessary--is the best way to
                balance efficiency and fairness considerations appropriately.\56\ The
                Departments believe that these proceedings, as proposed, will be more
                streamlined than removal proceedings but will still provide the parties
                with a fair opportunity to present their cases. Nevertheless, the
                Departments understand that there are alternative threshold standards
                for the introduction of evidence or the reopening of proceedings.\57\
                Accordingly, the Departments request the public's comments on the
                proposed evidentiary threshold requirements, including any suggestions
                for alternatives that balance efficiency and fairness considerations,
                particularly taking into account challenges pro se applicants for
                asylum and related protection sometimes face in developing their
                claims.
                ---------------------------------------------------------------------------
                 \56\ See, e.g., INS v. Abudu, 485 U.S. 94, 107 (1988) (``There
                is a strong public interest in bringing litigation to a close as
                promptly as is consistent with the interest in giving the
                adversaries a fair opportunity to develop and present their
                respective cases.'').
                 \57\ See, e.g., Matter of Coelho, 20 I&N Dec. 464, 473 (BIA
                1992) (providing that the moving party generally must demonstrate
                that ``new evidence offered would likely change the result in the
                case'' in order for the BIA to consider granting a discretionary
                motion to remand).
                ---------------------------------------------------------------------------
                 To ensure that noncitizens have a full and fair opportunity to
                prepare for and receive review of their claims, the Departments propose
                that many of the procedural safeguards that apply in section 240
                removal proceedings would apply to the IJ review proceedings as well.
                Unless specifically indicated in 8 CFR 1003.48 of the EOIR proposed
                rules, the general rules of procedure that apply in removal proceedings
                before the immigration courts also would apply to these proceedings.
                This would include a noncitizen's rights (1) to obtain representation
                by an attorney or other representative authorized to appear before the
                immigration court, at no cost to the Government, see 8 CFR 1003.16(b);
                (2) to seek a change of venue, see id. Sec. 1003.20(b); and (3) to
                seek a continuance for good cause shown, see id. Sec. 1003.29.
                Moreover, the provisions of 8 CFR 1003.2 and 1003.23 governing motions
                to reopen and reconsider generally would be applicable to decisions
                rendered by IJs or the BIA in these proceedings. The Departments also
                propose to add a cross-reference in 8 CFR 1003.12 to the new
                proceedings under 8 CFR 1003.48 to codify these procedural protections.
                 The rule further proposes at 8 CFR 1003.48(d) that the IJ would
                have the discretion, pursuant to a motion filed by an applicant, to
                vacate the asylum officer's order of removal. For the motion to be
                granted, the applicant would have to show that he or she is prima facie
                eligible for a form of relief that cannot be granted in proceedings
                under 8 CFR 1003.48. With the motion granted, DHS would have the
                discretion to place the applicant in removal proceedings. An applicant
                would be permitted to file only one such motion, the motion would have
                to be filed before the IJ issues a decision on the applications for
                asylum and related protection, and motions to apply for voluntary
                departure would not be granted. The Departments believe these
                limitations are appropriate given the goal of meaningfully streamlining
                these proceedings as compared with removal proceedings. That said, the
                Departments seek the public's comments on whether the provisions
                relating to motions to vacate removal orders appropriately balance
                fairness and efficiency considerations.
                 In these proposed proceedings, the IJ would have the authority to
                review all decisions issued by the asylum officer, upon request by the
                applicant. See 8 CFR 1003.48(a) (proposed). For example, if the asylum
                officer denies an applicant's application for asylum but grants the
                applicant's application for withholding of removal under the Act, and
                the applicant requests review by an IJ, the IJ would have the authority
                to review not only the denial of asylum but also the grant of
                withholding of removal as well. In these mixed cases, the
                [[Page 46921]]
                Departments believe it is appropriate, where the applicant has
                requested review of an asylum officer's decision, to permit IJs to
                review not only the denial but also the grant, because DHS could
                present documentation or testimony before the IJ that is admissible
                under 8 CFR 1003.48(e) and that indicates that the applicant does not
                qualify for any of the relief or protection at issue. The Departments
                seek comment on whether the IJ should have the authority to review all
                decisions of the asylum officer in this manner.
                 As proposed at 8 CFR 1003.48(e), if the IJ determines that the
                noncitizen is eligible for and merits asylum as a matter of discretion,
                the IJ would issue a decision vacating the order of removal issued by
                the asylum officer based upon the immigration officer's initial
                inadmissibility determination under section 235(b)(1)(A)(i) of the Act,
                8 U.S.C. 1225(b)(1)(A)(i), and granting the noncitizen asylum. If the
                IJ determines that the noncitizen is eligible for withholding of
                removal under the Act or withholding or deferral of removal under the
                CAT, the IJ would issue a decision granting the appropriate protection,
                but the IJ would not vacate the removal order issued by the asylum
                officer.\58\
                ---------------------------------------------------------------------------
                 \58\ A grant of withholding of removal ``does not afford [a
                noncitizen] any permanent right to remain in the United States'' and
                ``does not prevent the DHS from removing [a noncitizen] to a country
                other than the one to which removal has been withheld.'' Guzman
                Chavez, 141 S. Ct. at 2286 (quoting Matter of I-S- & C-S-, 24 I&N
                Dec. 432, 434 (BIA 2008)). That presupposes the issuance of a
                removal order to preserve DHS's discretion to remove the noncitizen
                to a third country. See id. at 2287-88 (noting that ``it is
                axiomatic that in order to withhold removal there must first be an
                order of removal that can be withheld'' (internal quotation marks
                and citation omitted)).
                ---------------------------------------------------------------------------
                 The Departments propose that either party may appeal the IJ's
                decision rendered in the new proceedings under 8 CFR 1003.48 to the BIA
                in accordance with the standard EOIR appeal procedures that currently
                apply to removal proceedings, including the submission of a Form EOIR-
                26, Notice of Appeal from a Decision of an Immigration Judge. See
                generally 8 CFR 1003.3, 1003.38. The Departments also propose to amend
                8 CFR 1003.1(b) to make clear that a noncitizen may appeal the IJ's
                decision to the BIA and that the review of these decisions is within
                the BIA's jurisdiction. And, as with BIA decisions in removal
                proceedings, the noncitizen may seek judicial review before the
                appropriate circuit court of appeals. See INA 242, 8 U.S.C.
                1252(a)(1).\59\ Accordingly, noncitizens under the proposed regulations
                would have opportunities at four levels to have their claims for
                asylum, withholding of removal, or deferral of removal considered:
                First during a nonadversarial hearing before an asylum officer and
                then, if necessary, on review by an IJ, the BIA, and the appropriate
                circuit court of appeals.
                ---------------------------------------------------------------------------
                 \59\ The courts of appeals have jurisdiction to review ``a final
                order of removal.'' INA 242(a)(1), 8 U.S.C. 1252(a)(1). As several
                courts of appeals have held, that grant of jurisdiction includes the
                authority to review a conclusion that an otherwise-removable
                noncitizen is ineligible for asylum, even where--unlike under the
                present rule--``no formal order of removal has been entered.''
                Mitondo, 523 F.3d at 787; see Shehu v. Att'y Gen., 482 F.3d 652, 656
                (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134-35 (2d Cir.
                2006); Nreka v. Att'y Gen., 408 F.3d 1361, 1366-67 (11th Cir. 2005).
                The courts of appeals do not have jurisdiction to review ``an order
                of removal without a hearing pursuant to [8 U.S.C.] 1225(b)(1).''
                INA 242(a)(1), 8 U.S.C. 1252(a)(1); see INA 242(a)(2)(A), 8 U.S.C.
                1252(a)(2)(A) (additional limits on review of matters related to
                removal orders issued pursuant to INA 235(b)(1), 8 U.S.C.
                1225(b)(1)). That limitation does not apply here. An order of
                removal entered after an asylum officer conducts a full hearing on a
                noncitizen's asylum application is not ``an order or removal without
                a hearing.'' And, in the context of INA 242's limits on judicial
                review, the references to an order of removal issued ``pursuant to''
                INA 242(b)(1), 8 U.S.C. 1225(b)(1), most naturally is read to
                encompass only the orders expressly described in that provision: An
                order issued when a noncitizen subject to expedited removal does not
                indicate an intention to apply for asylum or a fear of persecution,
                INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), or an order issued
                when a noncitizen is found not to have a credible fear of
                persecution, INA 235(b)(1)(B)(iii)(I),8 U.S.C.
                1225(b)(1)(B)(iii)(I). Cf. Guerrero-Lasprilla v. Barr, 140 S. Ct.
                1062, 1069 (2020) (applying ``the presumption favoring judicial
                review of administrative action'' in construing another limit on
                judicial review in INA 242, 8 U.S.C. 1252).
                ---------------------------------------------------------------------------
                F. Severability
                 Upon the completion of the notice and comment period provided for
                herein and subsequent issuance of a final rule, to the extent that any
                portion of the resulting final rule is stayed, enjoined, not
                implemented, or otherwise held invalid by a court, the Departments
                intend for all other parts of the final rule that are capable of
                operating in the absence of the specific portion that has been
                invalidated to remain in effect. Thus, even if a judicial decision
                invalidating a portion of the final rule results in a partial reversion
                to the current regulations or to the statutory language itself, the
                Departments intend that the rest of the final rule continue to operate
                in tandem with the reverted provisions, if at all possible. The
                Departments seek comment on whether (and which of) the regulatory
                provisions proposed herein should be severable from one another.
                G. Discretion/Phased Implementation
                 The Departments believe that the proposed changes in this rule are
                necessary to establish a more streamlined and timely adjudication
                process for individuals who establish a credible fear of persecution or
                torture, while simultaneously ensuring fundamental fairness. The
                Departments emphasize, however, that this proposed rule would provide
                DHS the discretion to continue placing such individuals directly into
                section 240 removal proceedings before an IJ. This discretion may be
                exercised, for example, when a noncitizen with a positive credible fear
                determination may have committed significant criminal activity, have
                engaged in past acts of harm to others, or pose a public safety or
                national security threat. In some cases, DHS may determine that it is
                more appropriate for such noncitizens' protection claims to be heard
                and considered in the adversarial process before an IJ.
                 Additionally, if the Departments decide to issue a final rule
                implementing this new process during FY 2022, DHS would also need to
                continue to place many noncitizens receiving a positive credible fear
                determination into section 240 removal proceedings, while USCIS takes
                the steps needed to allow it to fully implement this new process for
                all cases. As discussed below in greater detail in the costs and
                benefits analysis of this proposal and its impacts on USCIS, as
                required under Executive Orders 12866 and 13563, USCIS has estimated
                that it will need to hire approximately 800 new employees and spend
                approximately $180 million to fully implement the proposed asylum
                officer hearing and adjudication process to handle approximately 75,000
                cases annually. If the number of noncitizens placed into expedited
                removal and making successful fear claims increases significantly above
                that estimate, the cost to implement this proposed rule with staffing
                levels sufficient to handle the additional cases in a timely fashion
                would be substantially higher.\60\ Until USCIS is able to support full
                implementation, USCIS would need to continue to place a large
                percentage of individuals receiving a positive credible fear
                determination into section 240 removal proceedings. This exercise of
                discretion is similar to and in line with DHS's recognized
                prosecutorial discretion to issue an NTA to a covered
                [[Page 46922]]
                noncitizen in expedited removal proceedings at any time after the
                covered citizen is referred to USCIS for a credible fear determination.
                See Matter of E-R-M- & L-R-M-, 25 I&N Dec. at 523.
                ---------------------------------------------------------------------------
                 \60\ USCIS presently has over 400,000 pending affirmative asylum
                applications awaiting interview or adjudication. In proposing this
                rule, the Departments seek to avoid simply shifting work from a
                resource-challenged EOIR to a similarly resource-challenged USCIS
                Asylum Division. DHS seeks to fully resource the USCIS Asylum
                Division to handle their present workloads and this new workload
                prior to the USCIS full takeover of the adjudication of protection
                claims that follow a positive credible fear determination.
                ---------------------------------------------------------------------------
                 USCIS is primarily funded by immigration and naturalization benefit
                request fees charged to applicants and petitioners. Fees collected from
                individuals and entities filing immigration benefit requests are
                deposited into the Immigration Examinations Fee Account (``IEFA'').
                These fee collections fund the costs of adjudicating immigration
                benefit requests, including those provided without charge to refugee,
                asylum, and certain other applicants. The authority for establishing
                fees is found in section 286(m) of the INA, 8 U.S.C. 1356(m), which
                authorizes DHS to charge fees for adjudication and naturalization
                services at a level to ``ensure recovery of the full costs of providing
                all such services, including the costs of similar services provided
                without charge to asylum applicants or other immigrants.''
                 The Chief Financial Officers Act of 1990 (``CFO Act''), 31 U.S.C.
                901-03, requires each agency's chief financial officer to ``review, on
                a biennial basis, the fees, royalties, rents, and other charges imposed
                by the agency for services and things of value it provides, and make
                recommendations on revising those charges to reflect costs incurred by
                it in providing those services and things of value.'' 31 U.S.C.
                902(a)(8). USCIS conducted a FY 2019 and 2020 IEFA fee review, as
                required under the CFO Act, and, as a result of that review, DHS
                published an updated final fee rule on August 3, 2020, with an
                effective date of October 2, 2020. See U.S. Citizenship and Immigration
                Services Fee Schedule and Changes to Certain Other Immigration Benefit
                Request Requirements, 85 FR 46788 (Aug. 3, 2020). Implementation of
                that new fee rule was enjoined before its effective date, and USCIS has
                notified the public that it intends to continue to comply with the
                court injunctions.\61\ DHS intends to rescind and replace the changes
                made by the August 3, 2020 fee rule and establish new USCIS fees to
                recover USCIS operating costs.\62\
                ---------------------------------------------------------------------------
                 \61\ See Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520,
                526 (N.D. Cal. 2020) (enjoining the rule); Nw. Immigrant Rts.
                Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 41
                (D.D.C. 2020) (same). On January 29, 2021, USCIS published a Federal
                Register notice indicating that the agency was continuing to comply
                with these court orders. U.S. Citizenship and Immigration Services
                Fee Schedule and Changes to Certain Other Immigration Benefit
                Request Requirements, 86 FR 7493, 7493 (Jan. 29, 2021).
                 \62\ DHS lists a notice of proposed rulemaking for new fees on
                the Spring 2021 Unified Regulatory Agenda with a proposed
                publication date of November 2021. Office of Management and Budget,
                Spring 2021 Unified Regulatory Agenda (June 11, 2021), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC68.
                ---------------------------------------------------------------------------
                 Current resource constraints would prevent the Departments from
                immediately achieving their ultimate goal of having the protection
                claims of nearly all individuals who receive a positive credible fear
                determination adjudicated by an asylum officer. The Departments believe
                that to fully implement the proposed rule, additional resources would
                be required. The Departments therefore propose that the new process be
                implemented in phases, as the necessary staffing and resources are put
                into place.
                 A phased implementation would allow the Departments to begin
                employing the proposed process in an orderly and controlled manner and
                for a limited number of cases, giving USCIS the opportunity to work
                through operational challenges and ensure that each noncitizen placed
                into the process is given a full and fair opportunity to have any
                protection claim presented, heard, and properly adjudicated in full
                conformance with the law. Phased implementation would also have an
                immediately positive impact in reducing the number of individuals
                arriving at the southwest border who are placed into backlogged
                immigration court dockets, thus allowing the Departments to more
                quickly adjudicate some cases.
                 Given limited agency resources, the Departments anticipate first
                implementing this new process for certain non-detained family units.
                The Departments believe this is necessary as USCIS capacity is
                currently insufficient to handle all family unit referrals under this
                new proposed process. The Departments also anticipate limiting
                referrals under the initial implementation of this proposed rule to
                families apprehended in certain southwest border sectors or stations,
                as well as based on the family unit's final intended destination (e.g.,
                if the family unit is within a predetermined distance from the
                potential interview location). As the USCIS Asylum Division gains
                resources and builds capacity, the Departments anticipate that
                additional family unit cases and then single adult cases could be
                considered for processing pursuant to this phased implementation. Under
                this approach, it is likely that single adult cases would not be
                handled under the new process until a later phase of implementation.
                The Departments are seeking comments on what might be the appropriate
                factors for DHS to consider when determining which individuals to place
                into the new process during this period prior to full implementation.
                Statutory and Regulatory Requirements
                H. Executive Order 12866 (Regulatory Planning and Review) and Executive
                Order 13563 (Improving Regulation and Regulatory Review)
                 Executive Orders 12866 and 13563 direct agencies to assess the
                costs and benefits of available regulatory alternatives. If a
                regulation is necessary, these Executive orders direct that, to the
                extent permitted by law, agencies ensure that the benefits of a
                regulation justify its costs and select the regulatory approach that
                maximizes net benefits (including potential economic, environmental,
                public health and safety effects, distributive impacts, and equity).
                Executive Order 13563 emphasizes the importance of quantifying both
                costs and benefits, of reducing costs, of harmonizing rules, and of
                promoting flexibility. It explicitly draws attention to ``equity, human
                dignity, fairness, and distributive impacts,'' values that are
                difficult or impossible to quantify. All of these considerations are
                relevant here. This proposed rule has been designated as a
                ``significant regulatory action,'' and it is economically significant
                since it meets the $100 million threshold under section 3(f)(1) of
                Executive Order 12866. Accordingly, the Office of Management and Budget
                (``OMB'') has reviewed this regulation.
                1. Summary
                 This proposed rule would change and streamline the overall
                adjudicatory process for asylum applications arising out of the
                expedited removal process. By reducing undue delays in the system, and
                by providing a variety of procedural safeguards, the rule protects
                equity, human dignity, and fairness.
                 A central feature of the regulation changes the respective roles of
                an IJ and an asylum officer during proceedings for consideration of
                asylum applications after a positive credible fear determination.
                Notably, IJs will retain their existing authority to review de novo the
                negative determinations made by asylum officers in a credible fear
                proceeding. In making credible fear determinations, asylum officers
                will return to evaluating whether there is a significant possibility
                that the noncitizen could establish eligibility for asylum, withholding
                of removal, or CAT
                [[Page 46923]]
                protection for possible referral to a full hearing of the claim and the
                noncitizen will still be able to seek review of that negative credible
                fear determination before the IJ.
                 Asylum officers will take on a new role of fully adjudicating all
                protection claims made by some noncitizens who have received a positive
                credible fear determination, a role previously carried out only by IJs
                as part of a proceeding under section 240 of the INA. Under the rule,
                IJs will take on a new authority to review de novo an asylum officer's
                denial of these claims.
                 The population of individuals likely to be affected by this
                proposed rule's provisions are individuals for whom USCIS completes a
                credible fear screening. The average annual number of credible fear
                screenings for FY 2016 through 2020 completed by USCIS is broken out as
                59,280 positive credible fear determinations and 12,083 negative
                credible fear determinations, for a total of 71,363 individuals with
                credible fear determinations. DHS expects that this population will be
                affected by the rule in a number of ways, which may vary from person to
                person depending on (1) whether the individual receives a positive
                credible fear determination, and (2) whether the individual's asylum
                claim is granted or denied by the asylum officer. In addition, because
                of data constraints and conceptual and empirical challenges, we can
                provide only a partial monetization of the impacts to individuals. For
                example, asylum seekers who establish credible fear may benefit from
                having their asylum claims adjudicated potentially much sooner than
                they otherwise would. Those who are granted asylum sooner may have a
                possible path to citizenship in the United States. This is obviously a
                benefit in terms of human dignity and equity, but it is a benefit that
                is not readily monetized. Asylum seekers who establish credible fear
                may also benefit from filing cost savings and earlier labor force
                entry. DHS has estimated this impact on a per-person workday basis.
                 As it relates to the Government and USCIS costs, the planned human
                resource and information-related expenditures required to implement
                this proposed rule are monetized as real resource costs. These
                estimates are developed along three population bounds, ranging from
                75,000 to 300,000 credible fear screenings to account for possible
                variations in future years. Furthermore, the possibility of parole for
                more individuals--applied on a case-by-case basis--could lower the cost
                to the Government per person processed. DHS has also estimated
                potential employment tax impacts germane to earlier labor force entry,
                likewise on a per-person workday basis. Such estimates made on a per-
                person basis reflect a range of wages that the impacted individuals
                could earn. The per-person, per-work day estimates are not extended to
                broader monetized impacts due to data constraints.
                 An important caveat to the possible benefits to asylum applicants
                who establish a credible fear introduced above and discussed more
                thoroughly in the analysis is that it is expected to take time to
                implement this rule. Foremost, DHS expects the resourcing of this
                proposed rule to be implemented in a phased approach. Further, while
                up-front expenditures to support the changes from this proposed rule
                based on planning models are high, the logistical and operational
                requirements of this proposed rule may take time to fully implement.
                For instance, once USCIS meets its staffing requirements, time will be
                required for the new asylum staff to be trained for their positions,
                which may occur over several months. As a result, the benefits to
                applicants and the Government may not be realized immediately.
                 To develop the monetized costs of the proposed rule, DHS relied on
                a low, midrange, and high population bound to reflect future
                uncertainty in the population. In addition, resources are partially
                phased in over FYs 2022 and 2023, as a full phasing in of resources,
                potentially up to 2026, is not possible at this time. The average
                annualized cost of this proposed rule ranges from $180.4 million to
                $1.0 billion, at a 3 percent discount rate, and from $179.5 million to
                $995.8 million, at a 7 percent discount rate. At a 3 percent discount
                rate the total 10-year costs could range from $1.5 billion to $8.6
                billion, with a midpoint of $3.9 billion. At a 7 percent discount rate,
                the total 10-year costs could range from $1.3 billion to $7.0 billion,
                with a midpoint of $3.2 billion.
                 A summary of the potential impacts of this proposed rule are
                presented in Table 1 and are detailed more in the ensuing analysis.
                Where quantitative estimates are provided, they apply to the midpoint
                figure (applicable to the wage range or the population range).
                 Table 1--Summary of the Potential Impacts of This Proposed Rule
                ----------------------------------------------------------------------------------------------------------------
                 Entities impacted Annual population estimate Potential impacts
                ----------------------------------------------------------------------------------------------------------------
                Individuals who receive a positive USCIS provides a range from Maximum potential cost-savings
                 credible fear determination. 75,000 to 300,000 total to applicants of Form I-589 of $364.86
                 individuals who receive per person.
                 credible fear
                 determinations. In recent
                 years (see Table 3),
                 approximately 83.1% of
                 individuals screened have
                 received a positive
                 credible fear
                 determination.
                 Potential cost-savings to
                 applicants of Form I-765 of $370.28 per
                 person.
                 Potential early labor earnings
                 to asylum applicants who obtain an
                 employment authorization document
                 (``EAD'') of $225.44 per person per
                 workday; this impact could potentially
                 constitute a transfer from workers in
                 the U.S. labor force to certain asylum
                 applicants. We identified three factors
                 that could drive this impact of early
                 entry to the labor force: (i) More
                 expeditious grants of asylum, thereby
                 authorizing work incident to status; and
                 (ii) a change in timing apropos to the
                 ``start'' time for filing for work
                 authorization--the ``EAD-clock''
                 duration is not impacted, but it
                 ``shifts'' to an earlier starting point.
                 On the other hand, some individuals who
                 would have reached the ``EAD-clock''
                 duration for a pending asylum
                 application and obtained work
                 authorization under the current
                 regulations may not obtain work
                 authorization if their asylum claim is
                 promptly denied.
                 Individuals could not have to
                 wait lengthy times for a decision on
                 their protection claims. This is a
                 benefit in terms of equity, human
                 dignity, and fairness.
                 Some individuals could benefit
                 from de novo review by an IJ of the
                 asylum officer's denial of their asylum
                 claim.
                [[Page 46924]]
                
                Individuals who receive a negative USCIS provides a range from Beneficiaries of the new process
                 credible fear determination. 75,000 to 300,000 total may benefit in terms of human dignity if
                 individuals who receive paroled from detention while awaiting
                 credible fear their credible fear interview and
                 determinations. In recent determination.
                 years (see Table 3),
                 approximately 16.9% of
                 individuals screened have
                 received a negative
                 credible fear
                 determination.
                 Parole may result in more
                 individuals failing to appear for
                 hearings.
                DHS-USCIS............................... N/A........................ At a 7 percent discount rate,
                 the resource costs could be $451.2
                 million annually, based on up-front and
                 continuing expenditures.
                 It is reasonable to assume that
                 there could be a reduction in Form I-765
                 filings due to more expeditious
                 adjudication of asylum claims, but there
                 could also be countervailing influences;
                 hence, the volume of Form I-765 filings
                 (writ large or for specific classes
                 related to asylum) could decrease,
                 remain the same, or increase--these
                 reasons are elucidated in the analysis.
                 A net change in Form I-765
                 volumes overall could impact the
                 incumbent volume of biometrics and
                 biometrics services fees collected;
                 however, based on the structure of the
                 USCIS Application Support Center
                 (``ASC'') biometrics processing
                 contract, it would take a significant
                 change in such volumes for a particular
                 service district to generate marginal
                 cost increases or savings per biometrics
                 submission.
                EOIR.................................... 555 current IJs as well as EOIR only reviews on appeal and
                 support staff and other will no longer adjudicate asylum claims
                 personnel. raised in expedited removal in the first
                 instance.
                 Allows EOIR to focus efforts on
                 other priority work and reduce its
                 substantial current backlog.
                 There could be non-budget
                 related cost-savings if the actual time
                 worked on a credible fear case decreases
                 in the transfer of credible fear cases
                 to USCIS.
                Support networks for asylum applicants Unknown.................... To the extent that some
                 who receive a positive credible fear applicants may be able to earn income
                 determination. earlier than they otherwise could
                 currently, burdens to the support
                 network of the applicant may be
                 lessened. This network could include
                 public and private entities and family
                 and personal friends, legal services
                 providers and advisors, religious and
                 charity organizations, State and local
                 public institutions, educational
                 providers, and non-governmental
                 organizations (``NGOs'').
                Other................................... Unknown.................... There could be familiarization
                 costs associated with this proposed
                 rule; for example, if attorneys
                 representing the asylum client reviewed
                 the rule, the cost would be about $69.05
                 per hour.
                 There may be some labor market
                 impacts as some asylum seekers that
                 currently enter the labor market with a
                 pending asylum application would no
                 longer be entering the labor market
                 under this proposed rule if they get a
                 negative decision on their asylum claim
                 sooner. Applicants with a positive
                 credible fear determination may enter
                 the labor market sooner under this
                 proposed rule than they would currently.
                 Tax impacts could accrue to the
                 earlier entry of some individuals into
                 the labor market; we estimate employment
                 tax impacts could be $34.49 per person
                 on a workday basis.
                ----------------------------------------------------------------------------------------------------------------
                 In addition to the impacts summarized above, and as required by OMB
                Circular A-4, Table 2 presents the prepared accounting statement
                showing the costs and benefits associated with this regulation.\63\
                ---------------------------------------------------------------------------
                 \63\ OMB, Circular A-4 (2003), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (last viewed June 1,
                2021).
                 Table 2--OMB A-4 Accounting Statement
                 [$ millions, 2020]
                ----------------------------------------------------------------------------------------------------------------
                 Time Period: 2022-2031
                -----------------------------------------------------------------------------------------------------------------
                 Category Primary estimate Minimum estimate Maximum estimate Source citation
                ----------------------------------------------------------------------------------------------------------------
                 Benefits
                ----------------------------------------------------------------------------------------------------------------
                Monetized benefits............... Not estimated Not estimated Not estimated
                ----------------------------------------------------------------------------------------------------------------
                Annualized quantified, but un- N/A N/A N/A
                 monetized, benefits.
                ----------------------------------------------------------------------------------------------------------------
                Unquantified benefits............ Some individuals may benefit from filing cost-savings Regulatory Impact
                 related to Forms I-589 and I-765. Early labor market Analysis (``RIA'').
                 entry would be beneficial in terms of labor earnings to
                 the applicant, but also because it could reduce burdens
                 on the applicants' support networks.
                 Benefits driven by increased efficiency would enable
                 some asylum-seeking individuals to move through the
                 asylum process more expeditiously than through the
                 current process, with timelines potentially decreasing
                 significantly, thus promoting both human dignity and
                 equity. Adjudicative efficiency gains and expanded
                 parole could lead to individuals spending less time in
                 detention, which would benefit the Government and the
                 affected individuals.
                [[Page 46925]]
                
                 Another benefit is that EOIR would not see the cases in
                 which USCIS grants asylum, which we estimate as at
                 least a 15 percent reduction in their overall credible
                 fear workload. This stands to mitigate the backlog of
                 cases pending in immigration courts. Additionally, this
                 benefit would extend to individuals granted or denied
                 asylum faster than if they were to go through the
                 current process with EOIR.
                 Depending on the individual case circumstances, this
                 proposed rule would mean that such noncitizens would
                 likely not remain in the United States--for years,
                 potentially--pending resolution of their claims, and
                 those who qualify for asylum would be granted asylum
                 several years earlier than they are under the present
                 process.
                 The anticipated operational efficiencies from this
                 proposed rule may provide for prompt grant of relief or
                 protection to qualifying noncitizens and ensure that
                 those who do not qualify for relief or protection are
                 removed more efficiently than they are under current
                 rules.
                ----------------------------------------------------------------------------------------------------------------
                 Costs
                ----------------------------------------------------------------------------------------------------------------
                Annualized monetized costs for 10- (3%) ................. ................. RIA.
                 year period between 2021 and $453.8 $180.4 $1,002.4
                 2030 (discount rate in
                 parenthesis).
                 ------------------------------------------------------------------------------
                 (7%) ................. ................. RIA.
                 $451.2 179.5 995.8
                ----------------------------------------------------------------------------------------------------------------
                Annualized quantified, but un- Potential cost-savings applicable to Form I- RIA.
                 monetized, costs. 589 of $338.86 per person.
                 Potential cost-savings applicable to Form I-
                 765 of $377.32 per person.
                 Potential early labor earnings of $225.44 per
                 person per workday.
                 The transfer of cases from EOIR to USCIS would
                 allow resources at EOIR to be directed to other work,
                 and there is a potential for cost-savings to be
                 realized as it relates to credible fear processing
                 specifically, if the average cost of work-time spent on
                 cases by USCIS asylum officers would be lower than at
                 EOIR currently. These would not be budgetary cost-
                 savings, and USCIS has not made a one-to-one time- and
                 cost-specific comparison between worktime actually
                 spent on a case at EOIR and USCIS.
                ----------------------------------------------------------------------------------------------------------------
                Qualitative (unquantified) costs. N/A
                ----------------------------------------------------------------------------------------------------------------
                 Transfers
                ----------------------------------------------------------------------------------------------------------------
                Annualized transfers:............ Potential labor earnings that would accrue to credible
                 fear asylum applicants that enter the labor market
                 earlier than they would currently.
                ----------------------------------------------------------------------------------------------------------------
                From whom to whom?............... Potentially a distributional economic impact in the
                 form of a transfer to asylum applicants who enter
                 earlier than they would currently from others in the
                 U.S. workforce.
                ----------------------------------------------------------------------------------------------------------------
                Miscellaneous analyses/category.. N/A RIA.
                ----------------------------------------------------------------------------------------------------------------
                Effects on State, local, or N/A
                 Tribal governments.
                ----------------------------------------------------------------------------------------------------------------
                Effects on small businesses...... This proposed rule does not directly regulate small RFA.
                 entities, but rather individuals.
                ----------------------------------------------------------------------------------------------------------------
                Effects on wages................. None
                ----------------------------------------------------------------------------------------------------------------
                Effects on growth................ None
                ----------------------------------------------------------------------------------------------------------------
                2. Background and Purpose of the Rule
                 The purpose of this proposed rule is to address the rising number
                of apprehensions at or near the southwest border and the ability of the
                U.S. asylum system to fairly and efficiently handle protection claims
                made by those encountered. The proposed rule streamlines and simplifies
                the adjudication process for certain individuals who are encountered at
                or near the border, placed into expedited
                [[Page 46926]]
                removal, and determined to have a credible fear of persecution or
                torture, with the aim of adjudicating applications for asylum,
                statutory withholding of removal, and CAT protection in a timelier
                fashion and in conformity with procedural protections against erroneous
                denial of relief or protection. The principal facet of the rule is to
                transfer the initial responsibility for adjudicating asylum, statutory
                withholding of removal, and CAT protection applications from IJs to
                USCIS asylum officers for individuals within expedited removal
                proceedings who receive a positive credible fear determination.
                 The proposed rule also would broaden the circumstances in which
                individuals making a fear claim during the expedited removal process
                could be considered for parole on a case-by-case basis prior to a
                positive credible fear determination being made. For such individuals,
                parole could be granted as an exercise of discretion not only where
                required to meet a medical emergency or for a legitimate law
                enforcement objective, but also where detention is unavailable or
                impracticable.
                 DHS intends to apply this proposed rule only to recently-arrived
                individuals who are subject to expedited removal--i.e., adults and
                families. The proposed rule does not apply to unaccompanied children,
                as they are statutorily exempt from being placed into expedited
                removal. It also does not apply to individuals already residing in the
                United States and whose presence in the United States is outside the
                coverage of noncitizens designated by the Secretary as subject to
                expedited removal. The proposed rule also does not apply to (1)
                stowaways or (2) noncitizens who are present in or arriving in the
                Commonwealth of the Northern Mariana Islands who are determined to have
                a credible fear. They will continue to be referred to asylum/
                withholding-only hearings before an IJ under 8 CFR 208.2(c). Finally,
                it is not legally required that a noncitizen amenable to expedited
                removal after the effective date of the rule be placed in the non-
                adversarial review process described in this proposed rule. Rather, DHS
                generally, and USCIS in particular, retains discretion to issue an NTA
                to a covered noncitizen in expedited removal proceedings to instead
                place them in section 240 removal proceedings at any time after they
                are referred to USCIS for a credible fear determination. See Matter of
                E-R-M- & L-R-M-, 25 I&N Dec. at 523; see also 8 CFR 1208.2(c).
                 In this section we provide some data and information relevant to
                the ensuing discussion and analysis of the potential impacts of the
                rule. We first present USCIS data followed by EOIR data. Table 3 shows
                USCIS data for the Form I-589 and credible fear cases for the five-year
                span from FY 2016 through FY 2020.
                 Table 3--USCIS Form I-589, Application for Asylum and for Withholding of Removal, and Credible Fear Data
                 [FY 2016-2020] \64\
                ----------------------------------------------------------------------------------------------------------------
                 Form I-589 receipts Credible fear completions
                 ------------------------------------------------------------------ Total credible
                 FY Initial Pending Positive Negative All fear cases \65\
                 receipts receipts screen screen completions
                ----------------------------------------------------------------------------------------------------------------
                2016......................... 115,888 194,986 73,081 9,697 82,778 94,048
                2017......................... 142,760 289,835 60,566 8,245 68,811 79,842
                2018......................... 106,041 319,202 74,677 9,659 84,336 99,035
                2019......................... 96,861 349,158 75,252 16,679 91,931 102,204
                2020......................... 93,134 386,014 12,824 16,134 28,958 30,839
                 ----------------------------------------------------------------------------------
                 Total.................... 554,684 N/A 296,400 60,414 356,814 405,968
                 ----------------------------------------------------------------------------------
                 5-year Average....... 110,937 307,839 59,280 12,083 71,363 81,194
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS Office of Performance and Quality (OPQ), and USCIS Refugee, Asylum, and International Operations
                 (RAIO) Directorate, CLAIMS 3 database, Global received May 11, 2021.
                \64\ In FY 2020, the credible fear filings are captured in the Form I-870, ``Record of Determination/Credible
                 Fear Worksheet.'' As part of the credible fear screening adjudication, USCIS Asylum Officers prepare Form I-
                 870, Record of Determination/Credible Fear Worksheet. This worksheet includes biographical information about
                 the applicant, including the applicant's name, date of birth, gender, country of birth, nationality,
                 ethnicity, religion, language, and information about the applicant's entry into the United States and place of
                 detention. Additionally, Form I-870 collects sufficient information about the applicant's marital status,
                 spouse, and children to determine whether they may be included in the determination. Form I-870 also documents
                 the interpreter identification number of the interpreter used during the credible fear interview and collects
                 information about a relative or sponsor in the United States, including their relationship to the applicant
                 and contact information. In previous years credible fear filings included the Form I-867, ``Credible Fear
                 Referral.'' Prior to FY 2020, the USCIS Asylum Division electronically received information about credible
                 fear determinations through referral documentation provided by U.S. Customs and Border Protection. The
                 referral documentation includes a form containing information about the applicant: Form I-867, Credible Fear
                 Referral.
                \65\ The credible fear total receipts are larger than the sum of positive and negative determinations because
                 the latter apply to ``completions,'' referring to cases forwarded to EOIR, and thus exclude cases that were
                 administratively closed.
                 As can be seen from Table 3, the Form I-589 pending case number has
                grown steadily since 2016, and as of May 11, 2021, was 400,200, which
                is well above the five-year average of 307,839. Over that same period,
                the majority, 83.1 percent, of completed credible fear screenings were
                positive, while 16.9 percent were negative.\66\
                ---------------------------------------------------------------------------
                 \66\ Calculation: Positive completions total 296,400/total
                completions (296,400 + 60,414) = 296,400/356,814 = 0.831 x 100 =
                83.1 percent (rounded); negative completions total 60,414/total
                completions (356,814) = 0.169 x 100 = 16.9 percent (rounded).
                ---------------------------------------------------------------------------
                 In addition to the credible fear case data presented in Table 3,
                USCIS data and analysis can provide some insight concerning how long it
                has taken for the credible fear screening process to be completed. As
                detailed in this preamble, while this proposed rule's primary concern
                is the length of time before incoming asylum claims are expected to be
                adjudicated by EOIR, changes to USCIS processes enabled by this
                proposed rule (including, for example, improved systems for conducting
                credible fear interviews for individuals who are not in detention
                facilities) are also expected to reduce processing times for credible
                fear cases. Table 4
                [[Page 46927]]
                provides credible fear processing durations at USCIS.
                 Table 4--Credible Fear Time Durations for Detained and Non-Detained Cases
                 [In average and median days, FY 2016-2021]
                ----------------------------------------------------------------------------------------------------------------
                 Detained Non-detained
                 FY Screen ---------------------------------------------------------------
                 Average Median Average Median
                ----------------------------------------------------------------------------------------------------------------
                2016.......................... Positive........ 23.3 13 290.6 163.0
                 Negative........ 34 26 197.1 80.5
                2017.......................... Positive........ 23.3 13 570.1 407.0
                 Negative........ 34.2 25 496.1 354.0
                2018.......................... Positive........ 22.6 16 816.2 671.0
                 Negative........ 32.3 25 811.7 668.0
                2019.......................... Positive........ 35.6 24 1230.9 1082.0
                 Negative........ 44.7 33 1067.3 959.0
                2020.......................... Positive........ 37.2 20 1252.7 1065.0
                 Negative........ 30.3 16 1311.2 1247.0
                2021.......................... Positive........ 25.6 15 955.3 919.0
                 Negative........ 29.8 17 1174.0 1109.0
                ----------------------------------------------------------------------------------------------------------------
                Source: Data and analysis provided by USCIS, RAIO Directorate, SAS PME and data-bricks databases, received May
                 11, 2021.
                * FY 2021 includes partial fiscal year data as of May 2021.
                 Table 4 reports the ``durations,'' defined as the elapsed days from
                date of apprehension to forwarding of the credible fear screening
                process at USCIS, in both averages and medians. USCIS has included the
                most recent figure, which is applicable to May 11, 2021. The total time
                for cases from apprehension to adjudication by EOIR can be found by
                summing the times in Table 4 with the times in Table 6, below.
                 The data in Table 4 are not utilized to develop quantitative
                impacts, but rather are intended to build context and situational
                awareness. There are several key observations from the information
                presented. Foremost, there is a substantial difference between
                durations for the detained and the non-detained populations. The
                existence of a gap is expected because USCIS can interface with
                detained individuals rapidly. However, the gap has grown over time; in
                2016 the duration for positive-screened processing was 12.5 times
                greater, but by 2021 it had grown to a factor of nearly 40.\67\ Second,
                and relatedly, there was a substantial duration rise through 2019 for
                both detained and non-detained screenings, although there has been a
                recent pullback. Furthermore, the duration for negative screenings is
                lower across the board than for positive screenings--as of the most
                recent data point the duration was about 19 percent lower for negative
                screened cases.\68\ It is also seen that the 2021 average durations for
                detained cases are relatively close to 2016-2018 levels, with this
                series witnessing a spike in 2019.
                ---------------------------------------------------------------------------
                 \67\ Calculations: For 2016, 290.6 average days/23.3 average
                days = 12.5; for 2021, 1174.0 average days/25.6 average days = 39.4.
                 \68\ Calculation: [1-(955.3 days/1174.0 days)] = .186, rounded
                to .19.
                ---------------------------------------------------------------------------
                 Since some of the EOIR data are presented in medians, we note that
                the median durations are lower than the means for both screened types.
                This indicates that a small number of cases take an exceptionally long
                time to resolve, resulting in large outlier data points that skew the
                mean upwards. It is noted that for non-detained cases, the gap between
                median and mean duration is relatively consistent up to 2021, but the
                mean and median converge toward the end of the period; this feature of
                the data could indicate that fewer outlier durations were represented
                in the data.
                 It is possible that the proposed rule may impact employment
                authorization applications and approvals in terms of volume and timing.
                While we cannot predict the net change in filings for the Form I-765
                categories, we present data on initial filings and approvals for three
                asylum-related categories (Table 5). As a result of the rule, there
                could be substitutions in Form I-765 categories from the (c)(8),
                Applicant for Asylum/Pending Asylum, into the (a)(5), Granted Asylum
                Under Section 208, and (a)(10) Granted Withholding of Removal/243 (H)
                categories, in Table 5.
                 Table 5--USCIS Form I-765 Application for Employment Authorization Initial Receipts and Approvals Related to
                 Asylee Categories
                 [FY 2016-2020]
                ----------------------------------------------------------------------------------------------------------------
                 EAD category (a)(5) EAD category (c)(8) EAD category (a)(10)
                 Granted Asylum Under Applicant for Asylum/ Granted Withholding of
                 Section 208 Pending Asylum Removal/243 (H)
                 FY -----------------------------------------------------------------------------
                 Initial Initial Initial
                 receipts Approvals receipts Approvals receipts Approvals
                ----------------------------------------------------------------------------------------------------------------
                2016.............................. 29,887 27,139 169,970 152,269 2,008 1,621
                2017.............................. 32,673 29,648 261,782 234,053 1,936 1,076
                2018.............................. 38,743 39,598 262,965 246,525 1,733 1,556
                2019.............................. 47,761 41,288 216,038 177,520 2,402 2,101
                [[Page 46928]]
                
                2020.............................. 31,931 36,334 233,864 183,820 3,318 2,554
                 -----------------------------------------------------------------------------
                 5-year total.................. 180,995 174,007 1,144,619 994,187 11,397 8,908
                 -----------------------------------------------------------------------------
                 Average................... 36,199 34,801 228,924 198,837 2,279 1,782
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS, Office of Performance and Quality (OPQ), CLAIMS 3, data obtained May 11, 2021, https://www.uscis.gov/sites/default/files/document/reports/I-765_Application_for_Employment_FY03-20.pdf (last visited
                 August 9, 2021).
                 Across the three relevant employment authorization categories, the
                total of the averages is 267,402 initial EADs, with a total of 235,420
                approved EADs.
                 Having presented information and data applicable to USCIS
                specifically, we now turn to EOIR data and information. Table 6
                presents average and median processing times for EOIR to complete
                credible fear cases originating from the credible fear screening
                process, positive and negative, and detained and non-detained (the
                processing time represents that time between when a case is lodged in
                EOIR systems and a final decision). Note that the ``initial case
                completions'' are not directly comparable to USCIS completions (Table
                3) in terms of annual volumes for two primary reasons. First, there can
                be timing differences in terms of when a credible fear case is sent to
                EOIR and when it is lodged in their processing systems. Second, not all
                individuals determined to have a credible fear follow up with their
                case with EOIR, and some cases filed are administratively closed.
                Therefore, as a general rule, case completions by EOIR would be
                necessarily lower than ``completions'' at USCIS.
                 Table 6--EOIR Time Duration Metrics, Days, and Completions for Cases With a Credible Fear Origin
                ----------------------------------------------------------------------------------------------------------------
                 Average Median Initial case
                 FY processing time processing time completions
                ----------------------------------------------------------------------------------------------------------------
                 6A. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions With a Credible Fear
                 Origin
                ----------------------------------------------------------------------------------------------------------------
                2016........................................................ 413 214 16,794
                2017........................................................ 447 252 26,531
                2018........................................................ 648 512 33,634
                2019........................................................ 669 455 55,404
                2020........................................................ 712 502 33,517
                2021-March 31, 2021 (years) *............................... 1,078 (2.95) 857 (2.35) 6,646
                ----------------------------------------------------------------------------------------------------------------
                 6B. Average and Median Processing Times (in Days) for Form I-862 Initial Case Completions With a Credible Fear
                 Origin and Only an Application for Asylum, Statutory Withholding of Removal, and Withholding and Deferral of
                 Removal Under the CAT
                ----------------------------------------------------------------------------------------------------------------
                2016........................................................ 514 300 7,519
                2017........................................................ 551 378 13,463
                2018........................................................ 787 690 19,293
                2019........................................................ 822 792 30,052
                2020........................................................ 828 678 21,058
                2021-March 31, 2021 (years) *............................... 1,283 (3.52) 1,316 (3.61) 3,730
                ----------------------------------------------------------------------------------------------------------------
                Source: EOIR, Planning, Analysis, and Statistics Division (``PASD''), data obtained April 19, 2021.
                * Current through March 31, 2021.
                 The FY 2021 data point reflects data through the start of FY 2021
                to March 31, 2021, and we have included the current processing times in
                years for situational awareness. As Table 6 shows, there was an across-
                the-board jump in processing times in 2018, followed by a leveling off
                until 2021, when the processing times surged again.
                3. Population
                 The population expected to be affected by this rule is the total
                number of credible fear completions processed annually by USCIS
                (71,363, see Table 3), split between an average of 59,280 positive-
                screen cases and 12,083 negative-screen cases. This can be considered
                the maximum, ``encompassing,'' population that could be impacted.
                However, we take into consideration larger populations to account for
                variations and uncertainty in the future population.
                4. Impacts of the Rule
                 This section is divided into three modules. The first (A) focuses
                on impacts to asylum seekers, presented on a per-person basis. The
                second (B) discusses costs to the Federal Government, and the third (C)
                discusses other, possible impacts, including benefits.
                [[Page 46929]]
                i. Impacts to the Credible Fear Asylum Population
                 Under the change in procedures of this proposed rule, asylum
                applicants who have established a credible fear of persecution or
                torture would not be required to file Form I-589 with USCIS.
                Individuals in this population could accrue cost-savings relevant to
                this change. There is no filing fee for Form I-589, and the time burden
                is currently estimated at 12.0 hours per response, including the time
                for reviewing instructions, and completing and submitting the form.\69\
                With regard to cost-savings, DHS believes the minimum wage is
                appropriate to rely on as a lower bound, as the applicants would be new
                to the U.S. labor market. The Federal minimum wage is $7.25 per hour;
                however, in this proposed rule, we rely on the ``effective'' minimum
                wage of $11.80. As The New York Times reported, ``[t]wenty-nine states
                and the District of Columbia have state-level minimum hourly wages
                higher than the federal [minimum wage],'' as do many city and county
                governments. This New York Times report estimates that ``the effective
                minimum wage in the United States [was] $11.80 an hour in 2019.'' \70\
                Therefore, USCIS uses the ``effective'' minimum hourly wage rate of
                $11.80 to estimate a lower bound. USCIS uses a national average wage
                rate across occupations of $27.07 \71\ to take into consideration the
                variance in average wages across States as an upper bound.
                ---------------------------------------------------------------------------
                 \69\ See Instructions for Form I-589, Application for Asylum and
                for Withholding of Removal, OMB No.1615-0067 (expires July 31,
                2022), https://www.uscis.gov/sites/default/files/document/forms/i-589instr.pdf (last visited May 12, 2021).
                 \70\ Ernie Tedeschi, Americans Are Seeing Highest Minimum Wage
                in History (Without Federal Help), The New York Times (Apr. 24,
                2019), https://www.nytimes.com/2019/04/24/upshot/why-america-may-already-have-its-highest-minimum-wage.html. We note that with the
                wage level dated to 2019, we do not make an inflationary adjustment
                because the Federal minimum wage has not changed since then.
                 \71\ For the average wage for all occupations, the Departments
                rely on statistics of the U.S. Department of Labor. See U.S. Dep't
                of Labor, Bureau of Labor Statistics (``BLS''), May 2020 National
                Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 (last visited May 13, 2021).
                ---------------------------------------------------------------------------
                 DHS accounts for worker benefits by calculating a benefits-to-wage
                multiplier using the most recent Bureau of Labor Statistics (``BLS'')
                report detailing the average employer costs for employee compensation
                for all civilian workers in major occupational groups and industries.
                DHS relies on a benefits-to-wage multiplier of 1.45 and, therefore, is
                able to estimate the full opportunity cost per applicant, including
                employee wages and salaries and the full cost of benefits such as paid
                leave, insurance, retirement, and other benefits.\72\ The total rate of
                compensation for the effective minimum hourly wage is $17.11 ($11.80 x
                benefits burden of 1.45), which is 62.8 percent higher than the Federal
                minimum wage.\73\ The total rate of compensation for the average wage
                is $39.25 ($27.07 x benefits burden of 1.45).
                ---------------------------------------------------------------------------
                 \72\ The benefits-to-wage multiplier is calculated as follows:
                (Total Employee Compensation per hour)/(Wages and Salaries per hour)
                ($38.60 Total Employee Compensation per hour)/($26.53 Wages and
                Salaries per hour) = 1.454957 = 1.45 (rounded). See U.S. Department
                of Labor, BLS, Economic News Release, Employer Cost for Employee
                Compensation (December 2020), Table 1. Employer Costs for Employee
                Compensation by Ownership (Dec. 2020), https://www.bls.gov/news.release/archives/ecec_03182021.pdf. (last visited Mar. 31,
                2021).
                 \73\ The Federal minimum wage is $7.25 hourly, which burdened at
                1.45 yields $10.51. It follows that: (($17.11 wage-$10.51 wage)/
                $10.51)) wage = 0.628, which rounded and multiplied by 100 = 62.8
                percent.
                ---------------------------------------------------------------------------
                 For applicants who have established a credible fear, the
                opportunity cost of 12 hours to file Form I-589 at the lower and upper
                bound wage rates is $205.32 (12 hours x $17.11) and $471.00 (12 hours x
                $39.25), respectively, with a midrange average of $338.16. In addition,
                form instructions require a passport-style photograph for each family
                member associated with the Form I-589 filing. The Departments obtain an
                estimate of the number of additional family members applicable via data
                on biometrics collections for the Form I-589. Biometrics information is
                collected on every individual associated with a Form I-589 filing, and
                the tracking of collections is captured in the USCIS Customer Profile
                Management System (``CPMS'') database. A query of this system reveals
                that for the five-year period of FY 2016 through FY 2020, an average of
                296,072 biometrics collections accrued for the Form I-589 annually.
                Dividing this figure by the same five-year period average of 110,937
                initial filings (Table 3) yields a multiplier of 2.67 (rounded).\74\
                Under the supposition that each photo incurs costs to applicants of
                $10,\75\ there could be $26.70 in additional cost-savings at either
                wage bound.\76\ The resulting cost savings per applicant from no longer
                having to file Form I-589 could range from $232.02 to $497.70, with a
                midrange of $364.86.\77\
                ---------------------------------------------------------------------------
                 \74\ Calculation: Average I-589 biometrics collections 296,072/
                110,937 average initial I-589 filings = 2.67 (rounded). Data were
                obtained from the USCIS Immigration Records and Identity Services
                (``IRIS'') Directorate, via the CPMS database (data obtained May 7,
                2021).
                 \75\ The U.S. Department of State estimates an average cost of
                $10 per passport photo in their supporting statement for their
                Paperwork Reduction Act (PRA) submission for the Application for a
                U.S. Passport, OMB #1405-0004 (DS-11) (Feb. 8, 2011), http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201102-1405-001
                (see question #13 of the Supporting Statement).
                 \76\ Calculation: $10 per photo cost x 2.67 photos per I-589
                application = $26.70.
                 \77\ Calculation: $205.32 + $26.70 = $232.02; $338.16 + $26.70 =
                $364.86; $471.00 + $26.70 = $497.70.
                ---------------------------------------------------------------------------
                 Though these applicants would no longer be required to file Form I-
                589, DHS recognizes that applicants would likely expend some time and
                effort to prepare for their asylum interviews and provide documentation
                for their asylum claim under this rule as well. DHS does not know
                exactly how long, on average, an individual may spend preparing for
                their credible fear interviews under the proposed rule, and how that
                amount of time and effort would compare to the time individuals
                currently spend preparing for the credible fear interview. If the
                increased time were substantial--i.e., above and beyond that currently
                earmarked for the asylum application process--lower cost-savings could
                result.
                 Additionally, asylum applicants with a positive credible fear
                determination would still submit biometrics to USCIS. Hence, for
                applicants that file a Form I-589, photos would be collected via this
                biometrics process for the credible fear determination as well as for
                the Form I-589 application. Under this proposed rule, there would be a
                change in process such that applicants would submit biometrics at an
                asylum office as opposed to an USCIS Application Support Center
                (``ASC''). As a result, there could be time- and travel-associated
                impacts driven by this change, but because the requirements remain
                largely the same, we do not attempt to quantify them. Specifically, the
                average distance and travel time is likely to differ between asylum
                offices and ASCs, thereby possibly impacting the direct travel
                (mileage) cost as well as the travel-time related opportunity costs.
                However, the Departments assume these differences would be negligible,
                and therefore we do not quantify them.
                 Under the proposed rule, asylum applicants who established a
                credible fear would be able to file for work authorization via the Form
                I-765, Application for Employment Authorization (``EAD''), while their
                asylum application is being adjudicated. We cannot say, however,
                whether the volume of Form I-765 EADs filed would increase or decrease
                in upcoming years due to this proposed rule. Currently, asylum
                applicants can file for an EAD under the asylum (c)(8) category while
                [[Page 46930]]
                their asylum application is pending. Such applications are subject to a
                365-day waiting period that commences when their completed Form I-589
                is filed. Asylum applicants who establish a credible fear would still
                be subject to the 365-day waiting period.\78\ Applicants would still be
                able to file for their EADs under the (c)(8) category. We analyze the
                impacts regarding the EAD filing in two steps, explaining first why
                filing volumes might decline and related impacts, and then why
                countervailing factors might mitigate such a decline.
                ---------------------------------------------------------------------------
                 \78\ A preliminary injunction in Casa de Maryland, Inc. v. Wolf,
                486 F. Supp. 3d 928, 935 (D. Md. 2020), currently exempts members of
                certain organizations from this 365-day waiting period. Such members
                are subject to the 180-day Asylum EAD Clock.
                ---------------------------------------------------------------------------
                 A result of this proposed rule is that asylum applications for some
                individuals pursuant to this proposed rule could be granted asylum
                earlier than they would be under current conditions. Since an asylum
                approval grants work authorization incident to status and USCIS
                automatically provides an asylum-granted EAD ((a)(5)) after a grant of
                asylum by USCIS, some applicants may choose not to file for an EAD
                based on the pending asylum application under the expectation that
                asylum would be granted earlier than the EAD approval. This could
                result in cost savings to some applicants.
                 There is currently no filing fee for the initial (c)(8) EAD Form I-
                765 application, and the time burden is currently estimated at 4.75
                hours, which includes the time associated with submitting two passport-
                style photos along with the application.\79\ As stated earlier, the
                Department of State estimates that each passport photo costs about $10
                each. Submitting two passport photos resulting in an estimated cost of
                $20 per Form I-765 application.
                ---------------------------------------------------------------------------
                 \79\ See Instructions for Form I-765, Application for Employment
                Authorization, OMB No. 1615-0040 (expires July 31, 2022), https://www.uscis.gov/i-765 (last visited May 12, 2021).
                ---------------------------------------------------------------------------
                 Because the (c)(8) EAD does not include or require, at the initial
                or renewal stage, any data on employment, and since it does not involve
                an associated labor condition application, we have no information on
                wages, occupations, industries, or businesses that may employ such
                workers. Hence, we continue to rely on the wage bounds (effective
                minimum and national average) developed earlier. At the wage bounds
                relied upon, the opportunity cost-savings are $81.27 (4.75 hours x
                $17.11 per hour), and $186.44 (4.75 hours x $39.25). When the $20 photo
                cost is included, the cost-savings would be $101.27 and $206.44 per
                applicant, respectively. However, some might choose to file for an EAD
                after being granted asylum, or even if they expect asylum to be granted
                earlier than the EAD approval, they may want to have documentation that
                reflects that they are employment authorized.
                 In the discussion of the possible file volume decline for the Form
                I-589, above, we noted that applicants and family members would
                continue to submit biometrics as part of their asylum claim, and that,
                as a result, there would not be costs or cost-savings changes germane
                to biometrics. For the Form I-765(c)(8) category, USCIS started
                collecting biometrics, and the associated $85 biometrics service fee,
                in October 2020.\80\
                ---------------------------------------------------------------------------
                 \80\ USCIS collects biometrics for Form I-765 (c)(8)
                submissions, but a preliminary injunction in Casa de Maryland, Inc.
                v. Wolf, 486 F. Supp. 3d 928, 935 (D. Md. 2020), currently exempts
                members of certain organizations from this biometrics collection.
                ---------------------------------------------------------------------------
                 The submission of biometrics involves travel to an ASC for the
                biometric services appointment. In past rulemakings, DHS estimated that
                the average round-trip distance to an ASC is 50 miles, and that the
                average travel time for the trip is 2.5 hours.\81\ The cost of travel
                also includes a mileage charge based on the estimated 50-mile round
                trip at the 2021 General Services Administration (``GSA'') rate of
                $0.56 per mile.\82\ Because an individual would spend an average of 1
                hour and 10 minutes (1.17 hours) at an ASC to submit biometrics,\83\
                summing the ASC time and travel time yields 3.67 hours. At the low- and
                high-wage bounds, the opportunity costs of time are $62.79 and
                $144.05.\84\ The travel cost is $28, which is the per mileage
                reimbursement rate of 0.56 multiplied by 50-mile travel distance.
                Summing the time-related and travel costs generates a per-person
                biometrics submission cost of $90.79, at the low-wage bound and $172.05
                at the high-wage bound.\85\ While the biometrics collection includes
                the $85 service fee, fee waivers and exemptions are granted on a case-
                by-case basis (across all forms) that are immaterial to this proposed
                rule. Accordingly, not all individuals pay the fee. When the
                opportunity costs of time for filing Form I-765 ($101.27 and $206.44,
                respectively) are added to the opportunity costs of time and travel for
                biometrics submissions ($90.79 and 172.05), the total opportunity cost
                of time to file Form I-765 and submitting biometrics are $192.07 and
                $378.49, respectively. For those who pay the biometrics service fee,
                the total costs are $277.07 and $463.49, respectively, with a midpoint
                of $370.28.\86\ These figures represent the maximum per-person cost
                savings for those who choose not to file for an EAD.\87\
                ---------------------------------------------------------------------------
                 \81\ See Provisional Unlawful Presence Waivers of
                Inadmissibility for Certain Immediate Relatives, 78 FR 535 (Jan. 3,
                2013).
                 \82\ GSA mileage rate of $0.56. See GSA, Privately Owned Vehicle
                Mileage Reimbursement Rates (effective January 1, 2021), https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (last
                visited Aug. 4, 2021).
                 \83\ See Instructions for Form I-765, Application for Employment
                Authorization, OMB No. 1615-0040 (expires July 31, 2022), https://www.uscis.gov/i-765 (last visited May 12, 2021).
                 \84\ Calculations: Total time burden 3.67 hours x total rate of
                compensation for the effective wage $17.11 = $62.79; total time
                burden 3.67 hours x total rate of compensation for the average wage
                $39.25 = $144.05.
                 \85\ Calculations: Opportunity cost of time, effective wage
                $62.79 + travel cost $28 = $90.79; Opportunity cost of time, average
                wage $144.05 + travel cost $28 = $172.05.
                 \86\ Calculations: $192.07 + biometrics services fee $85 =
                $277.07; $378.49 + biometrics services fee $85 = $463.49. While we
                have the overall count for biometrics for the period from October 1,
                2020 through May 1, 2021, we do not know how many biometrics service
                fees were collected with these biometrics submissions; the fee data
                are retained by the USCIS Office of the Chief Financial Officer
                (``OCFO''), but the Form I-765 fee payments are not captured by
                eligibility class.
                 \87\ There is a scenario that the Departments account for,
                though it is not likely to occur often. Currently, an asylum
                applicant might file for an EAD and have the EAD approved prior to
                the grant of asylum. It is possible that, under this proposed rule,
                asylum may be approved more expeditiously. At the time of the asylum
                grant, the individual will automatically receive a category (a)(5)
                EAD based on the grant of asylum; if they did file for an EAD,
                technically the filing costs associated with the EAD would be
                accounted for as sunk costs, since the (c)(8) EAD does not actually
                provide any benefit over the (a)(5) EAD. This would only apply if
                the proposed rule itself was responsible for the more expeditious
                asylum grant, and again, we only account for this possibility since
                it cannot be ruled out.
                ---------------------------------------------------------------------------
                 Having developed the cost-savings for applicants who do not file
                for an EAD, we now turn to countervailing factors against the potential
                decline in Form I-765 volumes. First, applicants will benefit from a
                timing change relevant to the EAD waiting period as it relates to the
                ``filing date'' of their asylum application that will allow an EAD to
                be filed earlier than it could be currently. USCIS allows for an EAD to
                be filed under 8 CFR 208.7 when an asylum application is pending and
                certain other conditions are met. Here, an asylum application would be
                pending when the credible fear determination is served on the
                individual as opposed to current practice under which the asylum
                application is lodged in immigration court. This change in timing could
                allow some EADs to be approved earlier for those who file for an EAD
                with a pending asylum application. In this
                [[Page 46931]]
                sense, the EAD remains the same in duration, but the starting point
                shifts to an earlier position for asylum applicants who will file for
                an initial EAD under the (c)(8) category.
                 DHS would begin to consider for parole on a case-by-case basis all
                noncitizens who have been referred to USCIS for a credible fear
                screening under the slightly expanded set of factors provided for in
                the proposed rule during the relatively short period between being
                referred to USCIS for a credible fear screening interview and the
                issuance of a credible fear determination. A parole grant does not
                constitute work authorization, however, and currently there are two
                Form I-765 classes, (a)(5), ``Granted Asylum Sec. 208,'' and (a)(10),
                ``Granted Withholding of Removal/243 (H),'' that could apply to
                applicants filing for asylum pursuant to the parole process under this
                proposed rule. In the past, some parolees under these categories have
                been able to obtain EADs sooner than they would if they were explicitly
                subject to the filing clock that applies to a pending Form I-589
                application.
                 Given the two changes discussed above related to the EAD filings--
                (i) the change in timing under when an EAD can be filed; and (ii) the
                somewhat expanded set of circumstances under which certain credible
                fear cases may be considered for parole--some applicants may file for
                an EAD, even under the expectation that their asylum could be granted
                earlier, if they expect to receive an (a)(5) asylum granted EAD even
                sooner. In this sense, the potential for more rapid approvals of an EAD
                claim may be expected to provide a net pecuniary benefit even in light
                of a more expeditious asylum claim. Coupled with the expectation that
                some individuals may seek an EAD for the non-pecuniary benefit
                associated with its documentary value, we cannot determine if these
                countervailing influences might limit, or even completely absorb, any
                reductions in EAD filing for credible fear asylum applicants.
                 Regardless of whether, under the proposed rule, it is the more
                expeditious asylum or EAD approval that is binding for purposes of work
                authorization, individuals who enter the labor force earlier are able
                to earn income earlier. The assessments of possible impacts rely on the
                implicit assumption that credible fear asylum seekers who receive
                employment authorization will enter and be embedded in the U.S. labor
                force at the time of the proposed rule being effective. This assumption
                is justifiable for those whose labor force entry was effectuated by the
                EAD approval, as opposed to the grant of asylum. We believe this
                assumption is justifiable because applicants would generally not have
                expended the direct and opportunity costs of applying for an EAD if
                they did not expect to recoup an economic benefit. We also take the
                extra step of assuming these entrants to the labor force are employed.
                It is possible that some applicants who are eventually denied asylum
                are currently able to obtain work authorizations--approved while their
                asylum application was pending. We do not know what the annual or
                current scale of this population is, but it is an expected consequence
                of this proposed rule that such individuals would not obtain work
                authorizations in the future.
                 The impact is attributable to the difference in days between when
                asylum would be granted under the proposed rule and the current
                baseline. USCIS describes this distributional impact in more detail.
                Since a typical workweek is 5 days, the total day difference (``D'')
                can be scaled by 0.714 (5 days/7 days) and then multiplied by the
                average wage (``W'') and the number of hours in a typical work day (8)
                to obtain the impact, as in the formula: D x 0.714 x W x 8. In terms of
                each actual workday, the daily distributional impact at the wage bounds
                are $136.88 ($17.11 x 8 hours) and $314.00 ($39.25 x 8 hours),
                respectively, on a per-person basis, with a midrange average of
                $225.44.
                 USCIS cannot expand the per-person per-day quantified impacts to a
                broader monetized estimate. Foremost, while Table 5 provides filing
                volumes for the asylum relevant EADs, we cannot determine how many
                individuals within this population would be affected. In addition, we
                cannot determine what the average day difference would be for any
                individual that could be impacted. To quantify the day difference, the
                Departments would need to simultaneously analyze the current and future
                interaction between the asylum grant and EAD approvals. Doing so for
                the current system is conceptually possible with a significant devotion
                of time and resources, but it is not possible to conduct a similar
                analysis for future cases without relying on a number of assumptions
                that may not be tractable. As a result, we cannot extend the per-person
                cost (in terms of earnings) basis to an aggregate monetized cost, even
                if USCIS knew either the population impacted or the day-difference
                average because an estimate of the costs would require both data
                points. The impact accruing to labor earnings developed above has the
                potential to include both distributional effects (which are transfers)
                and indirect benefits to employers.\88\ The distributional impacts
                would accrue to asylum applicants who enter the U.S. labor force
                earlier than under current regulations, in the form of increased
                compensation (wages and benefits). A portion of this compensation gain
                might be transferred to asylum applicants from others that are
                currently in the U.S. labor force or eligible to work lawfully.
                Alternatively, employers that need workers in the U.S. labor market may
                benefit from those asylum applicants that receive their employment
                authorization earlier as a result of the proposed rule, gaining
                productivity and potential profits that the asylum applicant's earlier
                start would provide. Companies may also benefit by not incurring
                opportunity costs associated with the next-best alternative to the
                immediate labor the asylum applicant would provide, such as having to
                pay existing workers to work overtime hours, if in fact it was
                necessary or they were requested to work overtime.
                ---------------------------------------------------------------------------
                 \88\ Transfer payments are monetary payments from one group to
                another that do not affect total resources available to society. See
                OMB, Circular A-4 at 14, 38 (Sept. 17, 2003), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf (further discussion of transfer payments and distributional
                effects).
                ---------------------------------------------------------------------------
                 We do not know what this next-best alternative may be for those
                companies. As a result, the Departments do not know the portion of
                overall impacts of this proposed rule that are transfers or benefits,
                but the Departments estimate the maximum monetized impact of this
                proposed rule in terms of a daily, per-person basis compensation. The
                extent to which the portion of impacts would accrue to benefits or
                transfers is difficult to discern and would depend on multiple labor
                market factors. However, we think it is reasonable to posit that the
                portion of impacts attributable to transfers would mainly be benefits,
                for the following reason: If there are both workers who obtain
                employment authorization under this rule and other workers who are
                available for a specific position, an employer would be expected to
                consider any two candidates to be substitutable to a high degree. There
                is an important caveat, however. There could be costs involved in
                hiring asylum seekers that are not captured in this discussion. As the
                U.S. economy recovers from the effects of the COVID-19 pandemic, there
                may be structural changes to the general labor market and to specific
                job positions that could impact the next-best alternatives that
                employers face. The Departments cannot speculate on how such changes in
                relation to the earlier labor market entry of some asylum applicants
                could
                [[Page 46932]]
                mitigate the beneficial impacts to employers.
                 The early possible entry into the labor force of some positive-
                screened credible fear asylum applicants is not expected to change the
                composition of the labor market, as it would affect only the timing,
                not the scale of the labor force. However, there may be some labor
                market impacts from asylum seekers who currently enter the labor market
                with a pending asylum application and who may no longer be entering the
                labor market under this proposed rule if they get a decision sooner on
                their asylum claim. As we cannot predict how many people would be
                impacted in such a way, we are not able to quantify this impact.
                 Furthermore, there may be tax impacts for the Government. It is
                difficult to quantify income tax impacts of earlier employment in the
                tight labor market scenario because individual tax situations vary
                widely, but the Departments estimate the potential contributory effects
                on employment taxes, namely Medicare and Social Security, which have a
                combined tax rate of 7.65 percent (6.2 percent and 1.45 percent,
                respectively).\89\ With both the employee and employer paying their
                respective portion of Medicare and Social Security taxes, the total
                estimated accretion in tax transfer payments from employees and
                employers to Medicare and Social Security is 15.3 percent.\90\ The
                Departments will rely on this total tax rate where applicable. The
                Departments are unable to quantify other tax transfer payments, such as
                for Federal income taxes and State and local taxes. As noted above, the
                Departments do not know how many individuals with a positive credible
                fear determination will be affected, and what the average day-
                difference would be, and therefore the Departments cannot make an
                informed monetized estimate of the potential impact. It therefore
                follows that the Departments cannot monetize the potential tax impacts
                of the proposed rule. However, the Departments can provide partial
                quantitative information by focusing on the workday earnings presented
                earlier. At the wage bounds, the workday earnings, at $136.88 and
                $314.00, are multiplied by 0.153 to obtain $20.94 and $48.04,
                respectively, with a midpoint of $34.49, which are the daily employment
                tax impacts per individual. The tax impacts per person would accrue to
                the total day-difference in earnings scaled by 0.714, to reflect a
                five-day workweek.
                ---------------------------------------------------------------------------
                 \89\ See Internal Revenue Service Publication 15, Circular E,
                Employer's Tax Guide for Specific Information on Employment Tax
                Rates (Feb. 4, 2021), https://www.irs.gov/pub/irs-pdf/p15.pdf; see
                also Market Watch, More Than 44 Percent of Americans Pay No Federal
                Income Tax (Sept. 16, 2018), https://www.marketwatch.com/story/81-million-americans-wont-pay-any-federal-income-taxes-this-year-heres-why-2018-04-16.
                 \90\ Calculation: (6.2 percent Social Security + 1.45 percent
                Medicare) x 2 employee and employer losses = 15.3 percent total
                estimated tax loss to Government.
                ---------------------------------------------------------------------------
                 Having developed partial (based on an individual basis) monetized
                impacts of this proposed rule, there are two important caveats
                applicable to the population of asylum applicants who have received a
                positive credible fear determination. Foremost, as we detail
                extensively in the following module, there will be resource
                requirements and associated costs needed to make this proposed rule
                operational and effective. These changes will not occur instantaneously
                and may require months or even a year or more to fully implement. While
                existing USCIS resources will be able to effectuate changes for some
                individuals rather quickly, others (and thus the entire population from
                an average perspective) will face a time horizon in realizing the
                impacts--generally the impacts are beneficial as they include earlier
                asylum determinations, income gains, and possible filing cost-savings.
                While the time horizon would not be accounted as a cost to applicants,
                some may face a delay in realizing such benefits. Second, despite the
                possibility that some baseline EAD filers may choose not to file in the
                future, there could be mitigating effects to concomitant volume
                declines for Form I-765(c)(8) submissions.
                 In closing, we have noted that the impacts developed in this
                section apply to the population that receives a positive credible fear
                determination. Additionally, for the subset of this population that
                receives a negative asylum determination from USCIS, the possibility of
                de novo review of their claim by an IJ may benefit some applicants by
                affording another opportunity for review and approval of their asylum
                claims.
                ii. Impacts to USCIS
                a. Total Quantified Estimated Costs of Regulatory Changes
                 In this section, DHS discusses impacts to the Federal Government.
                Where possible, cost estimates have been quantified, otherwise they are
                discussed qualitatively. The total annual costs are provided only for
                those quantified costs that can be applied to a population.
                Costs of Staffing to USCIS
                 USCIS will need additional staffing to implement the provisions
                presented in this proposed rule. The staffing requirement will largely
                depend on the anticipated volume of credible fear referrals. In
                addition to asylum officers, USCIS will require additional supervisory
                staff, operational personnel, and organizational structures
                commensurate with the number of asylum officers needed. USCIS
                anticipates an increased need for higher-graded field adjudicators and
                supervisors to implement the provisions of this proposed rule.
                Approximately 92 percent of the field asylum officers are currently
                employed at the GS-12 pay level or lower.\91\ Under this model, USCIS
                will be assuming work normally performed by an IJ. EOIR data indicate
                the weighted average salary of $155,089 in FY 2021 for IJs, $71,925 for
                Judicial Law Clerks (``JLC''s), $58,394 for Legal Assistants, $132,132
                for DHS Attorneys, and $98.51 per hour for interpreters.\92\ Notably,
                entry-level IJs are required to adjudicate a wider array of immigration
                applications than asylum officers, and their decisions are not subject
                to 100 percent supervisory review, unlike current USCIS asylum
                officers. As such, under this proposed rule, USCIS asylum officers
                making final decisions on statutory withholding of removal and CAT
                protection cases would be at a GS-13 minimum, considering they will be
                conducting adjudications traditionally performed only by IJs.\93\ In
                addition, first-line Supervisory Asylum Officers (``SAO''s) reviewing
                these decisions would be graded at a GS-14.\94\ Currently, not all SAOs
                are at a grade GS-14. However, aligning all first-line SAOs to a GS-14
                ensures operational flexibility and makes this position consistent with
                the similar work processes and functions performed by the first-line
                Supervisory Refugee Officer position.
                ---------------------------------------------------------------------------
                 \91\ In 2021, the base salary for a GS-12 ranges from $66,829,
                at step 1, up to $86,881, at step 10. See Office of Personnel Mgmt.,
                Salary Table 2021-GS Incorporating the 1% General Schedule Increase
                Effective January 2021, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/GS.pdf (last visited
                May 17, 2021).
                 \92\ Weighted average base salaries across position, FY, and
                location are drawn from DOJ EOIR PASD analysis. Interpreter wages
                are presented hourly here, as these positions are paid differently
                and not always on an annual basis. In 2021, the base salary for a
                GS-15 step 3 is $117,824 and step 4 is $121,506. See id.
                 \93\ In 2021, the base salary for a GS-13 step 1 is $79,468. See
                id.
                 \94\ In 2021, the base salary for a GS-14 step 1 is $93,907. See
                id.
                ---------------------------------------------------------------------------
                 Currently, USCIS refers all credible fear determinations to IJs at
                EOIR. This
                [[Page 46933]]
                proposed rule continues to provide for the possibility that individuals
                who receive a negative credible fear determination may request review
                of the negative determination by an IJ at EOIR. Reviewing historical
                EOIR data on the amount of time required to complete a typical hearing
                with a credible fear origin and only an application for asylum, the
                median duration for credible fear merit plus master hearings from FY
                2016 through FY 2020 is about 97 minutes, or 1.6 hours. Factoring in
                the EOIR weighted average salaries for the IJs, JLCs, DHS Attorneys,
                and interpreters required for EOIR to complete these hearings, we
                estimate the median cost to be $470.62 \95\ per hearing over the same
                time period.
                ---------------------------------------------------------------------------
                 \95\ Estimate based on analysis provided by EOIR on May 19,
                2021, of median digital audio recording (``DAR'') length data from
                all merit and master asylum hearings between FY 2016 and FY 2020.
                The five-year average estimated cost of hearings is based on 2,087
                assumed hours per year for the IJ, JLC, and DHS attorneys' at the
                annual salaries shown, plus the hourly cost per interpreter. These
                annual values were multiplied by the respective sums of the annual
                median lengths of master and merit hearings for corresponding years
                to produce the five-year average cost per hearing of $470.62.
                ---------------------------------------------------------------------------
                 USCIS analyzes a range of credible fear cases to estimate staffing
                requirement costs. At a lower bound volume of 75,000 credible fear
                cases, USCIS assumes it would receive fewer credible fear cases
                compared to prior years (with the exception of FY 2020, which had a
                lower number of credible fear cases due to the COVID-19 pandemic and
                resulting border closures). A volume of 300,000 credible fear cases is
                an upper bound, based on the assumption that nearly all individuals
                apprehended will be placed into expedited removal for USCIS to process.
                As shown in Table 3, the lowest number of credible fear cases received
                within the last five years was 79,842 in FY 2017, while the highest was
                102,204 in FY 2019. DHS recognizes that the estimated volume of 300,000
                is nearly three times the highest annual number of credible fear cases
                received, but DHS presents this as an upper bound estimate to reflect
                the uncertainty concerning an operational limit to how many credible
                fear cases could be handled by the agency in the future. Inclusion of
                this unlikely upper bound scenario is intended only to present
                information concerning the potential costs should the agency consider
                an intervention at the highest end of the range. USCIS expects volumes
                to fall within the lower and upper bounds and therefore we also provide
                a primary estimate of 150,000 credible fear cases.\96\
                ---------------------------------------------------------------------------
                 \96\ Note that the primary estimate of 150,000 is not equal to
                the average of the lower volume of 75,000 credible fear cases and
                the upper volume of 300,000 credible fear cases. Rather, this
                primary estimate, based on OCFO modeling, represents the number of
                cases that the agency may reasonably expect. The OCFO volume levels
                were developed as a guide for several possible ranges that could be
                realized in the future, taking into account variations in the
                populations. The actual volume levels could be above or below these
                levels.
                ---------------------------------------------------------------------------
                 USCIS has estimated the staffing resources it will need to
                implement this proposed rule. At the three volume levels of credible
                fear cases, USCIS plans to hire between 794 and 4,647 total new
                positions, with a primary estimate of 2,035 total new positions.\97\
                The estimated costs associated with payroll, non-payroll, and other
                general expenses including interpreter services, transcription
                services, facilities, physical security, information technology
                (``IT'') case management, and other contract, supplies, and equipment
                are anticipated to begin in FY 2022.
                ---------------------------------------------------------------------------
                 \97\ Note that the primary estimate of 2,035 total new positions
                is not equal to the average of the lower 794 and upper bound 4,647
                estimates. Rather, this primary estimate, based on a staffing
                allocation model, represents the number of staff in a mix of
                occupations at a mix of grade levels that the agency may need to
                hire to handle the volume of credible fear cases. The staffing is
                commensurate with OCFO model volume levels, which were developed as
                a guide for several possible ranges that could be realized in the
                future, taking into account variations in the populations. The
                actual volume levels and hence staffing could be above or below
                these levels.
                ---------------------------------------------------------------------------
                 In developing the quantified costs of this proposed rule, there are
                likely to be initial costs associated with the hiring and training of
                staff, and those payroll and other costs associated with the additional
                personnel would continue in future years. Additionally, as was
                explained in Section G of this preamble, DHS expects a phased approach
                to implementation due to budgetary and logistical factors. The cost
                estimates developed below focus on three volume bands and are based on
                initial data and staffing models that captured initial implementation
                costs accruing to FY 2022 and FY 2023. It therefore partially captures
                the likely phasing of resourcing and costs, but not the full phasing
                that could extend into further years. As of the final drafting of this
                proposed rule, DHS does not have the appropriate data to integrate a
                full phasing of the implementation in terms of quantified resource
                costs. However, we do not believe a partial implementation
                significantly skews the expected costs of this proposed rule. We offer
                some additional comments concerning this phasing of implementation as
                it relates to costs at the conclusion of this analysis.
                 The Departments recognize that initial costs are likely to spill
                into future years depending on the pace of hiring, employee retention,
                obtaining and signing contracts (for interpreters, transcription,
                facilities), training, etc. For the remainder of FY 2021, DHS will
                finalize job descriptions, post new positions, and begin the hiring
                process to onboard some new Federal employees, and DHS will work to
                procure new contracts for interpreters, transcription, facilities, and
                security staff as its current fiscal situation allows. In FY 2022, the
                implementation costs are expected to range between $179.8 million and
                $952.4 million with a primary cost estimate of $438.2 million, assuming
                all staff is hired and corresponding equipment needs are purchased in
                the fiscal year. DHS recognizes that, operationally, it may take more
                time to attain the staffing postures described. However, we are not
                able to reliably predict those timelines due to the uncertain nature of
                the recruitment and onboarding processes. Any delay in hiring would
                reduce the first-year costs of implementation, as explained further
                below. The itemized planned resources are presented in Table 7.
                 Table 7--Estimated USCIS FY 2022 Funding Requirements by Volume of Credible Fear Referrals
                 [$ in thousands]
                ----------------------------------------------------------------------------------------------------------------
                 75k cases 150k cases 300k cases
                ----------------------------------------------------------------------------------------------------------------
                (A) Staffing.................................................... $140,507 $355,175 $806,697
                 Payroll..................................................... 113,602 285,983 648,257
                 Non-Payroll................................................. 26,905 69,192 158,440
                (B) General Expenses............................................ 39,313 83,025 145,682
                 Interpreter Services........................................ 6,615 19,136 44,179
                 Transcription Services...................................... 9,366 26,697 37,362
                [[Page 46934]]
                
                 Facilities.................................................. 6,635 17,606 40,865
                 Physical Security........................................... 623 1,654 3,839
                 IT Case Management.......................................... 12,500 12,500 12,500
                 Other Contract/Supplies/Equipment........................... 3,574 5,432 6,937
                 -----------------------------------------------
                 Total................................................... 179,820 438,200 952,379
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS Analysis from RAIO and OCFO, May 19, 2021.
                 In FY 2023, USCIS estimates costs between $164.7 million and $907.4
                million, with a primary estimate of $413.6 million, as shown in Table
                8. The reductions are mostly attributable to non-recurring, one-time
                costs for new staff and upgrades to IT case management systems,
                although a decline in costs pertaining to other contracts/supplies/
                equipment is also expected. The largest expected cost decrease is for
                IT case management, which is estimated to decline from $12.5 million in
                FY 2022 down to $4.375 million in FY 2023. Meanwhile, costs for
                interpreter and transcription services, facilities, and physical
                security are expected to rise in FY 2023 to factor in resource cost
                increases. For FY 2024 through FY 2031 of implementation, DHS expects
                resource costs to stabilize.
                 Table 8--Estimated USCIS FY 2023 Funding Requirements by Volume of Credible Fear Referrals
                 [$ in thousands]
                ----------------------------------------------------------------------------------------------------------------
                 75k cases 150k cases 300k cases
                ----------------------------------------------------------------------------------------------------------------
                (A) Staffing.................................................... $133,427 $337,047 $766,159
                 Payroll..................................................... 122,753 309,758 703,852
                 Non-Payroll................................................. 10,674 27,289 62,307
                (B) General Expenses............................................ 31,267 76,554 141,249
                 Interpreter Services........................................ 6,813 19,710 45,504
                 Transcription Services...................................... 9,647 27,498 38,483
                 Facilities.................................................. 6,834 18,134 42,091
                 Physical Security........................................... 642 1,704 3,954
                 IT Case Management.......................................... 4,375 4,375 4,375
                 Other Contract/Supplies/Equipment........................... 2,956 5,133 6,842
                 -----------------------------------------------
                 Total................................................... 164,694 413,601 907,408
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS Analysis from RAIO and OCFO, May 19, 2021.
                 To estimate the costs for each category itemized in Tables 7 and 8,
                USCIS considered the inputs for each. On average, USCIS expects to hire
                the majority of new staff at the GS-13, step 1 level, and most of those
                hired will serve as asylum officers. As stated, these officers will be
                adjudicating statutory withholding of removal and withholding and
                deferral of removal under the CAT, so their pay will be higher than the
                current asylum officer pay, which is at a GS-12 level. Additionally,
                USCIS assumes step 1 because these employees are expected to be new to
                the position. Payroll costs also include Government contributions to
                non-pay benefits, such as healthcare and retirement. While payroll is
                the greatest estimated cost to hiring staff, non-payroll costs include
                training, equipping, and setting staff up with resources such as
                laptops, cell phones, office supplies, etc. For example, asylum
                officers are required to attend and successfully complete a multi-week
                residential training at a Federal Law Enforcement Training Center
                (``FLETC'') as a condition of their continued employment. The estimated
                cost per student (including FLETC enrollment costs, travel, etc.) is
                approximately $7,000. The cost of training would apply to any new
                asylum staff with ``officer'' in their title. To fully furnish and
                equip new employees, USCIS estimates a cost of $3,319 per asylum
                employee. Costs for new equipment would be largely commensurate with
                the increase in staffing levels.
                 In addition to costs associated with hiring new staff, DHS
                anticipates that it will need to both increase funding on existing
                contracts and procure new ones. As a result of this proposed rule, the
                need for interpretation services will increase as the number of asylum
                interviews USCIS performs rises. Current interpreter contracts cannot
                absorb this expected increase. Using current contracts, USCIS applied
                the current cost model to the estimated increase in case volumes in
                order to estimate costs. The facilities and physical security estimates
                were similarly based on current cost models that were expanded to
                account for additional employees. Additional contract support will also
                be needed for transcription services to create a written record of the
                asylum hearing, which staff are not currently employed by USCIS. To
                create transcription service estimates, USCIS applied EOIR's current
                cost model to the estimated increase in case volumes. DHS also
                anticipates costs associated with general expenses associated with
                miscellaneous contract, supplies, equipment, etc. commensurate with the
                increase in staff.
                 The timing of these costs will depend on the hiring timeline but
                are expected to commence in the first year. DHS recognizes that if it
                takes more than one year to hire and equip asylum employees, costs may
                instead be experienced in later years.
                [[Page 46935]]
                Costs to Information Technology Typology to USCIS
                 DHS is planning upgrades to internal management systems and
                databases as a requirement to implement this proposed rule. The
                estimated cost of these upgrades in FY 2022 is a one-time cost of $12.5
                million that will impact virtually all processing and record-keeping
                systems at USCIS. The cost embodies funds for enhancements and
                refurbishment to the USCIS Global case management system that would
                support features such as: Ensuring transition of positive credible fear
                screening cases to the hearing process currently provided for
                affirmative asylum cases, support for withholding of removal and CAT
                adjudication features, non-detained scheduling enhancements, and
                capabilities to accept and provide review for electronic documents. The
                one-time cost also includes funds earmarked for teams that support
                integrations with other internal and external-facing systems, such as
                record-keeping, identity management and matching, reporting and
                analytics, applicant-facing interfaces, and other key USCIS systems, as
                well as external systems at Immigration and Customs Enforcement
                (``ICE''), CBP, or DOJ.\98\
                ---------------------------------------------------------------------------
                 \98\ While this plan tracks the FY 2022 time frame, variations
                in the pace of Federal and contractor hiring and retention during
                the performance period, unforeseen legal or other policy challenges
                to any electronic process, and the ability of relevant offices to
                truly operationalize minimal functionality give their own staffing
                constraints to handle manually any additional process automations,
                could delay some implementation into FY 2023.
                ---------------------------------------------------------------------------
                 Included in these $12.5 million costs are the costs to pay staff to
                make these upgrades. DHS estimates between 30 and 40 individuals, with
                a little over half contract personnel and the rest being Federal
                employees, would be involved (either part- or full-time) in the
                implementation of these enhancements through FY 2022. The Federal
                personnel would mainly comprise GS-14 and GS-15 level personnel and
                supervisory and management staff.
                 IT costs are expected to decline in FY 2023 and remain flat into
                the future at $4.375 million, which accounts for ongoing operations and
                maintenance costs. New features or upgrades are not expected at this
                time, but if they were to be needed in the future, those enhancements
                would result in additional costs not included here.
                 At present, DHS does not envision new facilities or additional
                structures being required from an IT perspective to implement this
                rule.
                 Importantly, this effort is expected to coincide with the first
                electronic processing of the Form I-589. Since this will be a
                significant change for processing asylum applications, unexpected
                errors or system changes could have impacts on this project as well.
                Additional dependencies rely on the availability of ICE, CBP, and DOJ
                systems to integrate with USCIS systems to provide for streamlined
                implementation. However, since this trajectory was enabled outside the
                scope of this rule, we do not attribute costs to it.
                 As described earlier in this analysis, we expect no net change
                regarding biometrics collection germane to asylum applications for
                individuals with a positive credible fear determination. We also
                detailed how factors concomitant to more expeditious EAD approvals make
                it impossible to estimate the magnitude or even direction in the net
                change in Form I-765 filing volumes (related to asylum or withholding
                of removal), and hence, commensurate biometrics collections (and fee
                payments).
                 However, given the parameters of this proposed rule, any net change
                in biometrics would not impose new costs to the Federal Government. The
                maximum monthly volume of biometrics submissions allowed by the current
                ASC contract is 1,633,968 and the maximum annual volume is
                19,607,616.\99\ The average number of individuals that submitted
                biometrics annually across all USCIS forms for the period FY 2016
                through FY 2020 was 3,911,857.\100\ Given that the average positive-
                screened credible fear population is 59,280 (Table 3), which is 1.52
                percent of the biometrics volume, a volume change would not encroach on
                these bounds.
                ---------------------------------------------------------------------------
                 \99\ Data and information provided by the USCIS IRIS
                Directorate. The average annual biometrics volumes were obtained
                through the CPMS database. The cost contract reflects the most
                recent contract update, dated June 18, 2020.
                 \100\ Data and information provided by USCIS IRIS Directorate,
                utilizing the CPMS database.
                ---------------------------------------------------------------------------
                 One scenario that we do account for relates to costs for a
                particular USCIS-ASC district. The DHS-ASC contract was designed to be
                flexible to reflect variations in benefit request volumes. The pricing
                mechanism within this contract embodies such flexibility. Specifically,
                the ASC contract is aggregated by USCIS district, and each district has
                five volume bands with its pricing mechanism. The incumbent pricing
                strategy takes advantage of economies of scale because larger
                biometrics processing volumes have smaller corresponding biometrics
                processing prices.\101\ For example, Table 9 provides an example of the
                pricing mechanism for a particular USCIS district. This district incurs
                a monthly fixed cost of $25,477.79, which will cover all biometrics
                submissions under a volume of 8,564. However, the price per biometrics
                submission decreases from an average cost of $6.66 for volumes between
                a range of 8,565 and 20,524 to an average of $5.19 once the total
                monthly volume exceeds 63,503. In other words, the average cost
                decreases when the biometrics submissions volume increases (jumps to a
                higher volume band).
                ---------------------------------------------------------------------------
                 \101\ Economies of scale is a technical term that is used to
                describe the process whereby the greater the quantity of output
                produced (in this case more biometric service appointments), the
                lower the per-unit fixed cost or per-unit variable costs to produce
                that output.
                 Table 9--Example of Pricing Mechanism for a USCIS District Processing Biometrics Appointments, FY 2021
                ----------------------------------------------------------------------------------------------------------------
                 District X Volume band Minimum volume Maximum volume Costs
                ----------------------------------------------------------------------------------------------------------------
                Baseline: Fixed price per month.... AA......................... 0 8,564 $25,477.79
                Fixed price per person processed... AB......................... 8,565 20,524 6.66
                Fixed price per person processed... AC......................... 20,525 31,752 5.94
                Fixed price per person processed... AD......................... 31,753 63,504 5.53
                Fixed price per person processed... AE......................... 63,505 95,256 5.19
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS, IRIS Directorate, received May 10, 2021.
                 At the district level, since there are small marginal changes to
                costs in terms of volumes, it would take a substantial change in
                volumes for a particular district to mount a significant change in
                costs for that district. If biometrics
                [[Page 46936]]
                volumes increase on net, there could be small marginal, and hence,
                average, cost declines; in contrast, if volumes decline, some of those
                marginal costs could not be realized.
                 Having developed the costs to USCIS to implement the proposed rule,
                this section brings the total costs together as annual inputs that are
                discounted over a 10-year horizon. At the three population bounds, the
                inputs are captured in Table 10. The FY 2022 and FY 2023 costs are from
                Tables 7 and 8. For FY 2024 through FY 2031, human resources cost
                increases. As stated earlier, USCIS expects positions to be filled at
                step 1 for each GS level, so in years where employees remain at the
                same step for more than one year, these estimates account only for
                human resource cost increases (FYs 2026, 2028 and 2030). The general
                non-IT cost increases account for expected contract pricing increases.
                Finally, IT costs are expected to remain flat at $4.375 million into
                the future, which accounts for ongoing operations and maintenance
                costs.
                 Table 10--Monetized Costs of the Proposed Rule to USCIS
                 [In undiscounted 2020 dollars]
                ----------------------------------------------------------------------------------------------------------------
                 Time Period: FYs 2022-2031
                -----------------------------------------------------------------------------------------------------------------
                 General (non-
                 FY Human resources IT) cost IT expenditure Annual total
                ----------------------------------------------------------------------------------------------------------------
                 10A. Lower Population Bound (75k Annual Cases)
                ----------------------------------------------------------------------------------------------------------------
                2022....................................... $140,507,000 $26,813,000 $12,500,000 $179,820,000
                2023....................................... 133,427,000 26,892,000 4,375,000 164,694,000
                2024....................................... 137,429,810 27,698,760 4,375,000 169,503,570
                2025....................................... 141,552,704 28,529,723 4,375,000 174,457,427
                2026....................................... 142,968,231 29,385,614 4,375,000 176,728,846
                2027....................................... 147,257,278 30,267,183 4,375,000 181,899,461
                2028....................................... 148,729,851 31,175,198 4,375,000 184,280,049
                2029....................................... 153,191,747 32,110,454 4,375,000 189,677,201
                2030....................................... 154,723,664 33,073,768 4,375,000 192,172,432
                2031....................................... 159,365,374 34,065,981 4,375,000 197,806,355
                 --------------------------------------------------------------------
                 10-year total.......................... 1,459,152,660 300,011,682 51,875,000 1,811,039,342
                ----------------------------------------------------------------------------------------------------------------
                 10B. Primary Population Bound (150k Annual Cases)
                ----------------------------------------------------------------------------------------------------------------
                2022....................................... 355,175,000 70,525,000 12,500,000 438,200,000
                2023....................................... 337,047,000 72,179,000 4,375,000 413,601,000
                2024....................................... 347,832,504 74,344,370 4,375,000 426,551,874
                2025....................................... 358,963,144 76,574,701 4,375,000 439,912,845
                2026....................................... 362,552,776 78,871,942 4,375,000 445,799,718
                2027....................................... 374,154,464 81,238,100 4,375,000 459,767,565
                2028....................................... 377,896,009 83,675,243 4,375,000 465,946,252
                2029....................................... 389,988,681 86,185,501 4,375,000 480,549,182
                2030....................................... 393,888,568 88,771,066 4,375,000 487,034,634
                2031....................................... 406,493,002 91,434,198 4,375,000 502,302,200
                 --------------------------------------------------------------------
                 10-year total.......................... 3,703,991,149 803,799,121 51,875,000 4,559,665,270
                ----------------------------------------------------------------------------------------------------------------
                 10C. High Population Bound (300k Annual Cases)
                ----------------------------------------------------------------------------------------------------------------
                
                2022....................................... 806,697,000 133,182,000 12,500,000 952,379,000
                2023....................................... 766,159,000 136,874,000 4,375,000 907,408,000
                2024....................................... 793,740,724 140,980,220 4,375,000 939,095,944
                2025....................................... 822,315,390 145,209,627 4,375,000 971,900,017
                2026....................................... 830,538,544 149,565,915 4,375,000 984,479,459
                2027....................................... 860,437,932 154,052,893 4,375,000 1,018,865,824
                2028....................................... 869,042,311 158,674,480 4,375,000 1,032,091,791
                2029....................................... 900,327,834 163,434,714 4,375,000 1,068,137,548
                2030....................................... 909,331,112 168,337,755 4,375,000 1,082,043,868
                2031....................................... 942,067,032 173,387,888 4,375,000 1,119,829,921
                 --------------------------------------------------------------------
                 10-year total.......................... 8,500,656,879 1,523,699,492 51,875,000 10,076,231,371
                ----------------------------------------------------------------------------------------------------------------
                 The totals reported in Table 10 are collated in Table 11, with the
                10-year discounted present values, each at a 3 percent and 7 percent
                discount rate. It is noted that since the cost inputs differ yearly,
                the average annualized equivalence costs are not uniform across
                discount rates.
                [[Page 46937]]
                 Table 11--Monetized Costs of the Proposed Rule
                 [In millions, 2020 dollars]
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 Undiscounted 3-Percent 7-Percent
                 Population Level -------------------------------------------------------------------------------------
                 10-Year cost 10-Year cost Annualized cost 10-Year cost Annualized cost
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                Low............................................................... $1,811.0 $1,538.8 $180.4 $1,260.8 $179.5
                Primary........................................................... 4,559.7 3,871.3 453.8 3,168.9 451.2
                High.............................................................. 10,076.2 8,550.3 1,002.4 6,993.7 995.8
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 As discussed in Section G of this preamble, and alluded to above,
                DHS expects this proposed rule to be implemented in phases. Our
                quantitative cost estimates are based on the assumption that the
                funding for the proposed rule is essentially available when the
                proposed rule takes effect, and that implementation costs are spread
                out over several years due to timing effects related to operational and
                hiring impacts. In reality, the effect of budgeting constraints and
                variations is expected to play a prominent role in the phasing in of
                the program. Our estimates thus account partially but not fully for
                such phasing. Incorporating additional phasing into resource allocation
                models is complex because of the interaction between initial and
                recurring costs, and DHS is not prepared at this time to attempt to
                fully phase in the costs quantitatively. Despite this limitation, we do
                not believe that the true costs would be significantly different than
                those presented above. A phased implementation would not skew the
                actual costs, but rather allocate them to different timing sequences.
                In fact, from a discounting perspective the present value of the costs
                would actually be lower if they were allocated to future years. DHS
                will continue to evaluate all pertinent data and information related to
                the phasing approach, and if tractable, may include refined estimates
                of the resource-related costs in the final rule.
                 DHS welcomes public comment on the phasing of costs and provides
                some additional, preliminary information here to supplement the cost
                data presented above. As of the final drafting of this proposed rule,
                DHS believes that through FY 2022 new staff positions can be funded
                with existing resources, which would support a minimum processing level
                of 50,000 annual family-unit cases. For the medium and high-volume
                bands of 150,000 and 300,000 annual cases, respectfully, DHS does not
                believe it can meet the full staffing requirements with current
                funding. Based on preliminary modelling, it could take up to three
                years to fully staff the medium-volume band and up to five years to
                staff the high-volume band.
                 If the medium- and high-volume bands of 150,000 and 300,000 were to
                be funded through a future fee rule, it would increase fees by an
                estimated weighted average of 13 percent and 26 percent respectively.
                This estimated increase would be attributable to the implementation of
                the asylum officer portions of the proposed rule only, and it is
                provided to show the magnitude of the impact that implementation of
                this proposed rule would have in addition to other increases in a
                future fee rule. The 13 percent or 26 percent estimated weighted
                average increase would be in addition to any changes in the IEFA non-
                premium budget.
                b. Intra-Federal Government Sector Impacts
                 This proposed rule is expected to shift the initial case processing
                of some asylum and protection claims from EOIR to USCIS. We present
                this shift in case processing as new resource costs to USCIS since new
                staff would be employed, new IT expenditures acquired, etc. There will
                be new resource costs to the economy. The IJs at EOIR will continue to
                remain at DOJ and work on other priority matters not related to the
                high volume of asylum and protection claims processed through expedited
                removal. Some IJs are expected to continue to work on these claims
                through the do novo review process for appeals from the denial of
                asylum claims. Cases in which USCIS grants all relief under the
                proposed rule, however, would not receive further administrative
                review. Accordingly, every case granted relief or protection by USCIS
                would constitute a direct reduction in new cases that EOIR would have
                to adjudicate. Given EOIR's significant pending caseload of
                approximately 1.3 million cases, reducing the number of cases referred
                to EOIR by 11,250 to 45,000 will enable EOIR to focus its resources on
                addressing existing pending cases and reducing the growth of the
                overall pending caseload. A reduction in the pending case load may
                reduce the overall time required for adjudications since dockets would
                not have to be set as far into the future. This in turn will better
                enable EOIR to meet its mission of fairly, expeditiously, and uniformly
                interpreting and administering the Nation's immigration laws, including
                granting relief or protection to noncitizens who qualify.
                iii. Familiarization Costs, Benefits, and Transfers of Possible Early
                Labor Market Entry
                 It is likely that there will be familiarization costs associated
                with this proposed rule. It is expected that applicants and their
                support network will incur costs to read and develop an understanding
                of this proposed rule and the associated changes in process. If, for
                example, attorneys are utilized, the cost could be $101.07 \102\ per
                hour, which is the average hourly wage for lawyers including the full
                cost of benefits.
                ---------------------------------------------------------------------------
                 \102\ The average wage for lawyers is provided by the Department
                of Labor. See U.S. Dep't of Labor BLS, May 2021 National
                Occupational Employment and Wage Estimates, https://www.bls.gov/oes/2020/may/oes_nat.htm#00-0000 (last visited May 13, 2021).
                Calculation: Average hourly wage for lawyers $69.70 x benefits
                burden of 1.45 = $101.07 (rounded).
                ---------------------------------------------------------------------------
                 The proposed rule offers other benefits to asylum applicants and
                the Government. Although we cannot parse out the transfer and costs
                portions explicitly, we believe that most of the distributional effects
                will comprise transfers that are beneficial to the asylum seekers
                (which we calculated on a per-person, workday basis), as opposed to
                costs. These transfers may impact the support network of the
                applicants. This network could include public and private entities, and
                it may comprise family and personal friends, legal services providers
                and advisors, religious and charity organizations, State and local
                public institutions, educational providers, and non-governmental
                organizations. To the extent that some applicants may be able to earn
                income earlier, burdens to this support network may be lessened.
                However, as described above, it will take time for USCIS to make the
                requisite resourcing and staffing changes needed to fully effectuate
                the changes under which the impacts could
                [[Page 46938]]
                be realized. In other words, there is likely to be a time horizon
                ranging from several months to more than a year for a sizeable portion
                of the impacts to begin to be realized. As a result, resources and
                efforts related to the applicants' support network can be expected to
                be maintained in the short to medium term.
                 In addition to the likely pecuniary benefits associated with early
                labor force entry, there could be other benefits as well. As a result
                of this proposed rule, DHS will begin to consider parole on a case-by-
                case basis for noncitizens who have been referred to USCIS for a
                credible fear screening under an expanded set of factors. Allowing for
                parole to be considered for more individuals in government custody
                could also provide resource redistribution to DHS in terms of shifting
                resources otherwise dedicated to the transportation and detention of
                these individuals and families. This will allow DHS to prioritize use
                of its limited detention bed space to detain those noncitizens who pose
                the greatest threats to national security and public safety, while
                facilitating the expanded use of the expedited removal process to order
                the removal of those who make no fear claim or who express a fear but
                subsequently fail to meet the credible fear screening standard after
                interview by an asylum officer (or, if applicable, by an IJ). However,
                DHS does not know how many future referrals for a credible fear
                screening will be eligible for parole; therefore, DHS cannot make an
                informed monetized estimate of the potential impact.
                 This proposed rule presents substantial costs for USCIS, especially
                as costs are expended to upgrade IT systems and begin hiring and
                training new staff. However, there are several expected qualitative
                benefits associated with the increased efficiency that would enable
                some asylum-seeking individuals claiming credible fear to move through
                the asylum process more expeditiously than through the current process.
                Under current timelines, it takes anywhere from eight months to five
                years for individuals claiming credible fear to reach a final asylum
                determination, whereas this proposed rule is expected to take 90 days
                in most cases for the initial determination, assuming no further review
                is sought. Greater efficiencies in the adjudicative process could lead
                to individuals spending less time in detention, which is a benefit to
                both the individuals and the Federal Government. Another benefit is
                that EOIR will not see the cases in which USCIS grants asylum, which we
                estimate as at least a 15 percent reduction in their overall credible
                fear workload.\103\ DHS anticipates this will help to mitigate the
                number of cases pending in immigration court. Additionally, this
                benefit will extend to individuals granted or denied asylum faster than
                if they were to go through the current process with EOIR. For those
                credible fear cases that receive a positive screen but a denial of
                their asylum claim, USCIS recognizes that only certain cases seeking
                further review will reach EOIR. Therefore, the benefit to EOIR through
                this process could be greater than we are able to currently quantify.
                ---------------------------------------------------------------------------
                 \103\ Based on the five-year (FY 2016 through FY 2020) average,
                an estimated 15 percent of EOIR asylum claims were granted asylum in
                cases originating with a credible fear claim. See EOIR Adjudications
                Statistics: Asylum Decision and Filing Rates in Cases Originating
                with a Credible Fear Claim (Apr. 19, 2021), https://www.justice.gov/eoir/page/file/1062976/download (last visited Aug. 4, 2021).
                ---------------------------------------------------------------------------
                 Given EOIR's significant pending caseload, the reduction of
                credible fear cases it would process would enable EOIR to focus its
                resources on addressing existing pending cases and reducing the growth
                of the overall pending caseload. It would also allow EOIR to shift some
                resources to other work. We cannot currently make a one-to-one
                comparison between the work-time actually spent on a credible fear case
                between EOIR judges and USCIS asylum officers, but if there is a
                reduction in average work-times spent on cases, there could be cost
                savings to EOIR, though it is emphasized that these cost-savings would
                not be budgetary. The Departments welcome public comment on this topic
                and will integrate additional information into the final rule, as
                appropriate.
                 Further, this proposed rule may stop adding to the existing volumes
                for Form I-765 for pending asylum applicants. As explained above, if
                some individuals are granted asylum earlier than they would under
                current conditions, some applicants in this process may choose not to
                file for an EAD. This could result in cost savings to applicants, as
                discussed, and it would also reduce USCIS's adjudication burden.
                 Assuming DHS places those noncitizens into expedited removal
                proceedings, the Departments assess that it will be more likely that
                they would receive a more prompt adjudication of their claims for
                asylum, withholding of removal, or CAT protection than they would under
                the existing regulations. Depending on the individual circumstances of
                each case, this proposed rule could mean that such noncitizens would
                likely not remain in the United States--for years, potentially--pending
                resolution of their claims, and those who qualify for asylum will be
                granted asylum several years earlier than they are under the present
                process.
                 Overall, the anticipated operational efficiencies from this
                proposed rule may provide for a more prompt grant of protection to
                qualifying noncitizens and ensure that those who do not qualify for
                relief or protection are removed more efficiently than they are under
                current rules. Considering both quantifiable and unquantifiable
                benefits and costs, the Departments believe that the aggregate benefits
                of the rule would amply justify the aggregate costs.
                I. Regulatory Flexibility Act
                 The Regulatory Flexibility Act of 1980 (``RFA''), as amended by the
                Small Business Regulatory Enforcement Fairness Act of 1996, requires
                Federal agencies to consider the potential impact of regulations on
                small businesses, small governmental jurisdictions, and small
                organizations during the development of their rules. The term ``small
                entities'' comprises small businesses, not-for-profit organizations
                that are independently owned and operated and are not dominant in their
                fields, and governmental jurisdictions with populations of less than
                50,000.
                 The proposed rule does not directly regulate small entities and is
                not expected to have a direct effect on small entities. Rather, this
                proposed rule regulates individuals, and individuals are not defined as
                ``small entities'' by the RFA.\104\ While some employers could
                experience costs or transfer effects, these impacts would be indirect.
                Based on the evidence presented in this analysis and throughout this
                preamble, DHS certifies that this proposed rule would not have a
                significant economic impact on a substantial number of small entities.
                DHS nonetheless welcomes comments regarding potential impacts on small
                entities, which DHS may consider as appropriate in a final rule.
                ---------------------------------------------------------------------------
                 \104\ See Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C.
                601 note). A small business is defined as any independently owned
                and operated business not dominant in its field that qualifies as a
                small business per the Small Business Act. See 15 U.S.C. 632(a)(1).
                ---------------------------------------------------------------------------
                J. Unfunded Mandates Reform Act of 1995
                 The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended,
                among other things, to curb the practice of imposing unfunded Federal
                mandates on State, local, and Tribal governments. Title II of UMRA
                requires each Federal
                [[Page 46939]]
                agency to prepare a written statement assessing the effects of any
                Federal mandate in a proposed rule, or final rule for which the agency
                published a proposed rule that includes any Federal mandate that may
                result in $100 million or more expenditure (adjusted annually for
                inflation) in any one year by State, local, and Tribal governments, in
                the aggregate, or by the private sector.
                 While this proposed rule is expected to exceed the $100 million
                expenditure in any 1 year when adjusted for inflation ($169.8 million
                in 2020 dollars based on the Consumer Price Index for All Urban
                Consumers (``CPI-U'')),\105\ the Departments do not believe this
                proposed rule would impose any unfunded Federal mandates on State,
                local, and Tribal governments, in the aggregate, or on the private
                sector. The impacts are likely to apply to individuals, potentially in
                the form of beneficial distributional effects and cost savings. There
                could be tax impacts related to the distributional effects. However,
                these do not constitute mandates. Further, the real resource costs
                quantified in this analysis apply to the Federal Government and also
                are not mandates. Therefore, the Departments have not prepared a
                written statement.
                ---------------------------------------------------------------------------
                 \105\ See BLS, Historical Consumer Price Index for All Urban
                Consumers (CPI-U): U.S. City Average, All Items, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf (last visited May 5, 2021).
                 Calculation of inflation: (1) Calculate the average monthly CPI-
                U for the reference year (1995) and the most recent current year
                available (2020); (2) Subtract reference year CPI-U from current
                year CPI-U; (3) Divide the difference of the reference year CPI-U
                and current year CPI-U by the reference year CPI-U; (4) Multiply by
                100 = [(Average monthly CPI-U for 2020-Average monthly CPI-U for
                1995)/(Average monthly CPI-U for 1995)] * 100 = [(258.811-152.383)/
                152.383] * 100 = (106.428/152.383) *100 = 0.6984 * 100 = 69.84
                percent = 69.8 percent (rounded).
                 Calculation of inflation-adjusted value: $100 million in 1995
                dollars * 1.698 = $169.8 million in 2020 dollars.
                ---------------------------------------------------------------------------
                K. Congressional Review Act
                 The Administrator of the Office of Information and Regulatory
                Affairs has determined that this proposed rule is a ``major rule''
                within the meaning of Subtitle E of the Small Business Regulatory
                Enforcement Fairness Act of 1996 (also known as the Congressional
                Review Act), 5 U.S.C. 804(2). Accordingly, it is expected that this
                rule, if enacted as a final rule, would be effective 60 days after the
                final rule's publication.
                L. Executive Order 13132 (Federalism)
                 This proposed rule would 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 proposed rule does
                not have sufficient federalism implications to warrant the preparation
                of a federalism summary impact statement.
                M. Executive Order 12988 (Civil Justice Reform)
                 This proposed rule meets the applicable standards set forth in
                sections 3(a) and 3(b)(2) of Executive Order 12988.
                N. Family Assessment
                 The Departments have assessed this proposed action in accordance
                with section 654 of the Treasury General Appropriations Act, 1999,
                Public Law 105-277, Div. A. With respect to the criteria specified in
                section 654(c), the Departments determined that the proposed rule would
                not have any adverse impacts on family safety or stability. The
                proposed rule would allow families seeking asylum the possibility of
                parole from custody, thereby helping preserve family unity and safety
                given the COVID-19 pandemic. Additionally, this proposed rule would
                result in greater efficiencies in the expedited removal and asylum
                processes, providing speedier resolution of meritorious cases, and
                reducing the overall asylum system backlogs.
                O. Executive Order 13175 (Consultation and Coordination With Indian
                Tribal Governments)
                 This proposed rule would not have Tribal implications under
                Executive Order 13175, Consultation and Coordination with Indian Tribal
                Governments, because it would not have a substantial direct effect on
                one or more Indian Tribes, on the relationship between the Federal
                Government and Indian Tribes, or on the distribution of power and
                responsibilities between the Federal Government and Indian Tribes.
                P. National Environmental Policy Act
                 The Departments analyze actions to determine whether the National
                Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4321 through
                4347 (``NEPA''), applies to them and, if so, what degree of analysis is
                required. See DHS, Implementing the National Environmental Policy Act
                (Directive 023-01, issued Oct. 31, 2014, and Instruction Manual, issued
                Nov. 6, 2014), https://www.dhs.gov/publication/directive-023-01-rev-01-and-instruction-manual-023-01-001-01-rev-01-and-catex. Both the DHS
                Directive 023-01 and the Instruction Manual establish the policies and
                procedures that DHS and its components use to comply with NEPA and the
                Council on Environmental Quality (``CEQ'') regulations for implementing
                NEPA, 40 CFR parts 1500 through 1508.
                 The CEQ regulations allow Federal agencies to establish, with CEQ
                review and concurrence, categories of actions (``categorical
                exclusions'') that experience has shown do not have a significant
                effect on the human environment and, therefore, do not require an
                Environmental Assessment or Environmental Impact Statement. 40 CFR
                1501.4, 1507.3(e)(2)(ii). The DHS categorical exclusions are listed in
                Appendix A of the Instruction Manual. For an action to be categorically
                excluded, it must satisfy each of the following three conditions: (1)
                The entire action clearly fits within one or more of the categorical
                exclusions; (2) the action is not a piece of a larger action; and (3)
                no extraordinary circumstances exist that create the potential for a
                significant environmental effect.\106\
                ---------------------------------------------------------------------------
                 \106\ Instruction Manual section V.B(2)(a)-(c).
                ---------------------------------------------------------------------------
                 As discussed in more detail throughout this proposed rule, the
                Departments are proposing to modify the expedited removal process,
                specifically for those who are found to have a positive credible fear.
                The proposed rule could result in an increase in the number of
                noncitizens in expedited removal paroled out of custody, thereby
                possibly allowing for efficient processing or prioritizing use of DHS's
                limited detention bed space to detain those noncitizens who pose the
                greatest threats to national security and public safety.
                 Generally, the Departments believe NEPA does not apply to a rule
                intended to change a discrete aspect of an immigration program because
                any attempt to analyze its potential impacts would be largely, if not
                completely, speculative. This proposed rule would not alter any
                eligibility criteria, but rather would change certain procedures,
                specifically, which Federal agency adjudicates certain asylum claims.
                The proposed rule also would not make any changes to detention
                facilities. Rather, the detention facilities are already in existence
                and to attempt to calculate how many noncitizens would be paroled--a
                highly discretionary benefit--and how many would proceed to the
                detention centers would be near impossible to determine. The
                Departments have no reason to believe that these amendments would
                change
                [[Page 46940]]
                the environmental effect, if any, of the existing regulations.
                 Therefore, the Departments have determined that, even if NEPA
                applied to this action, this proposed rule clearly fits within
                categorical exclusion A3(d) in the Instruction Manual, which provides
                an exclusion for ``promulgation of rules . . . that amend an existing
                regulation without changing its environmental effect.'' Furthermore,
                the Departments have determined that this proposed rule clearly fits
                within the categorical exclusion A3(a) in the Instruction Manual
                because the proposed rule is of a strictly administrative or procedural
                nature. This proposed rule is not a part of a larger action and
                presents no extraordinary circumstances creating the potential for
                significant environmental effects. Therefore, this proposed rule is
                categorically excluded and no further NEPA analysis is required.
                Q. Paperwork Reduction Act
                USCIS Form I-765
                 Under the Paperwork Reduction Act (``PRA''), Public Law 104-13, 109
                Stat. 163 (1995), all agencies are required to submit to OMB, for
                review and approval, any reporting requirements inherent in a rule.
                 DHS and USCIS invite the general public and other Federal agencies
                to comment on the impact to the proposed collection of information. In
                accordance with the PRA, the information collection notice is published
                in the Federal Register to obtain comments regarding the proposed edits
                to the information collection instrument.
                 Comments are encouraged and will be accepted for 60 days from the
                publication date of the proposed rule. All submissions received must
                include the OMB Control Number 1615-0040 in the body of the letter and
                the agency name. To avoid duplicate submissions, please use only one of
                the methods under the ADDRESSES and I. Public Participation section of
                this rule to submit comments. Comments on this information collection
                should address one or more of the following four points:
                 (1) Evaluate whether the collection of information is necessary for
                the proper performance of the functions of the agency, including
                whether the information will have practical utility;
                 (2) Evaluate the accuracy of the agency's estimate of the burden of
                the collection of information, including the validity of the
                methodology and assumptions used;
                 (3) Enhance the quality, utility, and clarity of the information to
                be collected; and
                 (4) Minimize the burden of the collection of information on those
                who are to respond, including through the use of appropriate automated,
                electronic, mechanical, or other technological collection techniques or
                other forms of IT (e.g., permitting electronic submission of
                responses).
                Overview of Information Collection
                 (1) Type of Information Collection: Revision of a Currently
                Approved Collection.
                 (2) Title of the Form/Collection: Application for Employment
                Authorization.
                 (3) Agency form number, if any, and the applicable component of the
                DHS sponsoring the collection: I-765; I-765WS; USCIS.
                 (4) Affected public who will be asked or required to respond, as
                well as a brief abstract: Primary: Individuals or households. USCIS
                uses Form I-765 to collect information needed to determine if a
                noncitizen is eligible for an initial EAD, a new replacement EAD, or a
                subsequent EAD upon the expiration of a previous EAD under the same
                eligibility category. Noncitizens in many immigration statuses are
                required to possess an EAD as evidence of employment authorization.
                USCIS is proposing to revise the form instructions to correspond with
                revisions related to information about the asylum application and USCIS
                grants of withholding of removal.
                 (5) An estimate of the total number of respondents and the amount
                of time estimated for an average respondent to respond: The estimated
                total number of respondents for the information collection I-765 paper
                filing is 2,179,494, and the estimated hour burden per response is 4.5
                hours; the estimated total number of respondents for the information
                collection I-765 online filing is 106,506, and the estimated hour
                burden per response is 4 hours; the estimated total number of
                respondents for the information collection I-765WS is 302,000, and the
                estimated hour burden per response is 0.5 hours; the estimated total
                number of respondents for the information collection biometrics
                submission is 302,535, and the estimated hour burden per response is
                1.17 hours; the estimated total number of respondents for the
                information collection passport photos is 2,286,000, and the estimated
                hour burden per response is 0.5 hours.
                 (6) An estimate of the total public burden (in hours) associated
                with the collection: The total estimated annual hour burden associated
                with this collection of information is 11,881,713 hours.
                 (7) An estimate of the total public burden (in cost) associated
                with the collection: The estimated total annual cost burden associated
                with this collection of information is $400,895,820.
                List of Subjects
                8 CFR Part 208
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                8 CFR Part 235
                 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 1235
                 Administrative practice and procedure, Aliens, Immigration,
                Reporting and recordkeeping requirements.
                Regulatory Amendments
                DEPARTMENT OF HOMELAND SECURITY
                 Accordingly, for the reasons set forth in the preamble, the
                Secretary of Homeland Security proposes to amend 8 CFR parts 208 and
                235 as follows:
                PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                1. The authority citation for part 208 continues to read as follows:
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
                0
                2. Amend Sec. 208.2 by:
                0
                a. Revising paragraphs (a) and (b);
                0
                b. Removing the word ``or'' at the end of paragraph (c)(1)(vii);
                0
                c. Removing the period at the end of paragraph (c)(1)(viii) and adding
                ``; or'' in its place;
                0
                d. Removing and reserving paragraph (c)(1)(ix);
                0
                e. Adding paragraph (c)(1)(x); and
                [[Page 46941]]
                0
                f. In paragraph (c)(3)(i):
                0
                i. Adding the words ``and in 8 CFR 1003.48'' after the words ``Except
                as provided in this section''; and
                0
                ii. Removing ``paragraph (c)(1) or (c)(2)'' and adding ``paragraph
                (c)(1) or (2)'' in its place.
                 The revisions and addition read as follows:
                Sec. 208.2 Jurisdiction.
                 (a) Jurisdiction of U.S. Citizenship and Immigration Services
                (USCIS). (1) Except as provided in paragraph (b) or (c) of this
                section, USCIS shall have initial jurisdiction over:
                 (i) An asylum application filed by an alien physically present in
                the United States or seeking admission at a port-of-entry; and
                 (ii) Hearings provided in accordance with section 235(b)(1)(B)(ii)
                of the Act to further consider the application for asylum of an alien,
                other than a stowaway, found to have a credible fear of persecution or
                torture in accordance with Sec. 208.30(f) and retained by USCIS, or
                referred to USCIS by an immigration judge pursuant to 8 CFR 1003.42 and
                1208.30 after the immigration judge has vacated a negative credible
                fear determination. Hearings to further consider applications for
                asylum under this paragraph (a)(1)(ii) are governed by the procedures
                provided for under Sec. 208.9. Further consideration of an asylum
                application filed by a stowaway who has received a positive credible
                fear determination will be under the jurisdiction of an immigration
                judge pursuant to paragraph (c) of this section.
                 (2) USCIS shall also have initial jurisdiction over credible fear
                determinations under Sec. 208.30 and reasonable fear determinations
                under Sec. 208.31.
                 (b) Jurisdiction of Immigration Court in general. Immigration
                judges shall have exclusive jurisdiction over asylum applications filed
                by aliens who have been served a Form I-221, Order to Show Cause; Form
                I-122, Notice to Applicant for Admission Detained for a Hearing before
                an Immigration Judge; or Form I-862, Notice to Appear, after the
                charging document has been filed with the Immigration Court.
                Immigration judges shall also have jurisdiction over any asylum
                applications filed prior to April 1, 1997, by alien crewmembers who
                have remained in the United States longer than authorized, by
                applicants for admission under the Visa Waiver Pilot Program, and by
                aliens who have been admitted to the United States under the Visa
                Waiver Pilot Program. Immigration judges shall also have the authority
                to review credible fear determinations referred to the Immigration
                Court under Sec. 208.30, reasonable fear determinations referred to
                the Immigration Court under Sec. 208.31, and asylum officers' denials
                of applications, under Sec. 208.14(c)(5), referred to the Immigration
                Court for review under 8 CFR 1003.48.
                 (c) * * *
                 (1) * * *
                 (x) An alien referred for proceedings under 8 CFR 1003.48 on or
                after [effective date of final rule].
                * * * * *
                0
                3. Amend Sec. 208.3 by revising paragraphs (a) and (c)(3) to read as
                follows:
                Sec. 208.3 Form of application.
                 (a)(1) Except for applicants described in paragraph (a)(2) of this
                section, an asylum applicant must file Form I-589, Application for
                Asylum and for Withholding of Removal, together with any additional
                supporting evidence in accordance with the instructions on the form.
                The applicant's spouse and children shall be listed on the application
                and may be included in the request for asylum if they are in the United
                States. One additional copy of the principal applicant's Form I-589
                must be submitted for each dependent included in the principal's
                application.
                 (2) For asylum applicants, other than stowaways, who are awaiting
                further consideration of an asylum application pursuant to section
                235(b)(1)(B)(ii) of the Act following a positive credible fear
                determination, the written record of a positive credible fear finding
                issued in accordance with Sec. 208.30(f) or 8 CFR 1003.42 or 1208.30
                satisfies the application filing requirements in paragraph (a)(1) of
                this section and Sec. 208.4(b) for purposes of consideration by USCIS
                pursuant to the jurisdiction provided at Sec. 208.2(a)(1)(ii). The
                written record of the positive credible fear determination shall be
                considered a complete asylum application for purposes of Sec. Sec.
                208.4(a), 208.7, and 208.9(a); shall not be subject to the requirements
                of 8 CFR 103.2; and shall be subject to the conditions and consequences
                in paragraph (c) of this section upon signature at the asylum hearing.
                The date that the positive credible fear determination is served on the
                alien shall be considered the date of filing and receipt. Application
                information collected electronically will be preserved in its native
                format. The applicant's spouse and children may be included in the
                request for asylum only if they were included in the credible fear
                determination pursuant to Sec. 208.30(c), or also presently have an
                application for asylum pending adjudication with USCIS pursuant to
                Sec. 208.2(a)(1)(ii). The asylum applicant may subsequently amend,
                correct, or supplement the information collected during the expedited
                removal process, including the process that concluded with a positive
                credible fear determination, provided the information is submitted
                directly to the asylum office no later than 7 calendar days prior to
                the scheduled asylum hearing, or for documents submitted by mail,
                postmarked no later than 10 days prior to the scheduled asylum hearing.
                As a matter of discretion, the asylum officer may consider amendments
                or supplements submitted after the 7- or 10-day (depending on the
                method of submission) deadline or may grant the applicant a brief
                extension of time during which the applicant may submit additional
                evidence. The biometrics captured during expedited removal for the
                principal applicant and any dependents may be used to verify identity
                and for criminal and other background checks for purposes of an asylum
                application under the jurisdiction of USCIS pursuant to Sec.
                208.2(a)(1) and any subsequent immigration benefit.
                * * * * *
                 (c) * * *
                 (3) An asylum application under paragraph (a)(1) of this section
                must be properly filed in accordance with 8 CFR part 103 and the filing
                instructions. Receipt of a properly filed asylum application under
                paragraph (a) of this section will commence the period after which the
                applicant may file an application for employment authorization in
                accordance with Sec. 208.7 and 8 CFR 274a.12 and 274a.13.
                * * * * *
                0
                4. Amend Sec. 208.4 by revising paragraph (c) to read as follows:
                Sec. 208.4 Filing the application.
                * * * * *
                 (c) Amending an application after filing. Upon the request of the
                alien, and as a matter of discretion, the asylum officer or immigration
                judge with jurisdiction may permit an asylum applicant to amend or
                supplement the application filed under Sec. 208.3(a)(1). Any delay in
                adjudication or in proceedings caused by a request to amend or
                supplement the application will be treated as a delay caused by the
                applicant for purposes of Sec. 208.7 and 8 CFR 274a.12(c)(8).
                0
                5. Amend Sec. 208.9 by revising and republishing the section heading
                and paragraphs (a) through (g) to read as follows:
                [[Page 46942]]
                Sec. 208.9 Procedure for interview or hearing before an asylum
                officer.
                 (a) Claims adjudicated. USCIS shall adjudicate the claim of each
                asylum applicant whose application is complete within the meaning of
                Sec. 208.3(a)(2) or (c)(3), when applicable, and is within the
                jurisdiction of USCIS pursuant to Sec. 208.2(a).
                 (b) Conduct and purpose of interview or hearing. The asylum officer
                shall conduct the interview or hearing in a nonadversarial manner and,
                except at the request of the applicant, separate and apart from the
                general public. The purpose of the interview or hearing shall be to
                elicit all relevant and useful information bearing on the applicant's
                eligibility for asylum. At the time of the interview or hearing, the
                applicant must provide complete information regarding his or her
                identity, including name, date and place of birth, and nationality, and
                may be required to register this identity. The applicant may have
                counsel or a representative present, may present witnesses, and may
                submit affidavits of witnesses and other evidence.
                 (c) Authority of asylum officer. The asylum officer shall have
                authority to administer oaths, verify the identity of the applicant
                (including through the use of electronic means), verify the identity of
                any interpreter, present evidence, receive evidence, and question the
                applicant and any witnesses.
                 (d) Completion of the interview or hearing. Upon completion of the
                interview or hearing before an asylum officer:
                 (1) The applicant or the applicant's representative will have an
                opportunity to make a statement or comment on the evidence presented.
                The representative will also have the opportunity to ask follow-up
                questions.
                 (2) USCIS will inform the applicant that he or she must appear in
                person to receive and to acknowledge receipt of the decision of the
                asylum officer and any other accompanying material at a time and place
                designated by the asylum officer, except as otherwise provided by the
                asylum officer. An applicant's failure to appear to receive and
                acknowledge receipt of the decision will be treated as delay caused by
                the applicant for purposes of Sec. 208.7.
                 (e) Extensions. The asylum officer will consider evidence submitted
                by the applicant together with his or her asylum application. For
                applications being considered under Sec. 208.2(a)(1)(i), the applicant
                must submit any documentary evidence at least 14 calendar days in
                advance of the interview date. As a matter of discretion, the asylum
                officer may consider evidence submitted within the 14-day period prior
                to the interview date or may grant the applicant a brief extension of
                time during which the applicant may submit additional evidence. Any
                such extension will be treated as a delay caused by the applicant for
                purposes of Sec. 208.7.
                 (f) Record. (1) The asylum application, all supporting information
                provided by the applicant, any comments submitted by the Department of
                State or by DHS, and any other information considered by the asylum
                officer in the written decision shall comprise the record.
                 (2) For hearings on asylum applications within the jurisdiction of
                USCIS pursuant to Sec. 208.2(a)(1)(ii), the record shall also include
                a verbatim audio or video recording of the hearing, except for
                statements made off the record with the permission of the asylum
                officer. A transcript of the interview will be included in the referral
                package to the immigration judge as described in Sec. 208.14(c)(5).
                 (g) Interpreters. (1) Except as provided in paragraph (g)(2) of
                this section, an applicant unable to proceed with the interview in
                English must provide, at no expense to USCIS, a competent interpreter
                fluent in both English and the applicant's native language or any other
                language in which the applicant is fluent. The interpreter must be at
                least 18 years of age. Neither the applicant's attorney or
                representative of record, a witness testifying on the applicant's
                behalf, nor a representative or employee of the applicant's country of
                nationality, or if stateless, country of last habitual residence, may
                serve as the applicant's interpreter. Failure without good cause to
                comply with this paragraph may be considered a failure to appear for
                the interview for purposes of Sec. 208.10.
                 (2) Notwithstanding paragraph (h) of this section, for asylum
                applications retained by USCIS for further consideration pursuant to
                Sec. 208.30(f) or 8 CFR 1003.42 or 1208.30, if the applicant is unable
                to proceed effectively in English, the asylum officer shall arrange for
                the assistance of an interpreter in conducting the hearing. The
                interpreter must be at least 18 years of age. Neither the applicant's
                attorney or representative of record, a witness testifying on the
                applicant's behalf, nor a representative or employee of the applicant's
                country of nationality, or if stateless, country of last habitual
                residence, may serve as the applicant's interpreter.
                * * * * *
                0
                6. Revise Sec. 208.10 to read as follows:
                Sec. 208.10 Failure to appear for an interview or hearing before an
                asylum officer or for a biometrics services appointment for the asylum
                application.
                 (a) Failure to appear for an asylum interview or hearing, or for a
                biometrics services appointment. (1) The failure to appear for an
                asylum interview or hearing, or for a biometrics services appointment,
                may result in one or more of the following actions:
                 (i) Waiver of the right to an interview or adjudication by an
                asylum officer;
                 (ii) Dismissal of the application for asylum;
                 (iii) Referral of the applicant to the Immigration Court;
                 (iv) Denial of employment authorization; or
                 (v) For individuals whose case is retained by USCIS for
                consideration of their application for asylum after a positive credible
                fear determination pursuant to Sec. 208.30(f) or 8 CFR 1003.42 or
                1208.30, issuance of an order of removal based on the inadmissibility
                determination of the immigration officer under section 235(b)(1)(A)(i)
                of the Act.
                 (2) There is no requirement for USCIS to send a notice to an
                applicant that he or she failed to appear for his or her asylum
                interview or hearing, or for a biometrics services appointment prior to
                issuing a decision on the application. Any rescheduling request for the
                asylum interview or hearing that has not yet been fulfilled on the date
                the application for employment authorization is filed under 8 CFR
                274a.12(c)(8) will be treated as an applicant-caused delay for purposes
                of Sec. 208.7.
                 (b) Rescheduling missed appointments. USCIS, in its sole
                discretion, may excuse the failure to appear for an asylum interview or
                hearing, or biometrics services appointment and reschedule the missed
                appointment as follows:
                 (1) Asylum interview or hearing. If the applicant demonstrates that
                he or she was unable to make the appointment due to exceptional
                circumstances.
                 (2) Biometrics services appointment. USCIS may reschedule the
                biometrics services appointment as provided in 8 CFR part 103.
                0
                7. Amend Sec. 208.14 by:
                0
                a. Removing ``RAIO'' and adding in its place ``USCIS'' in paragraph
                (b);
                0
                b. Revising paragraphs (c) introductory text and (c)(1); and
                0
                c. Adding paragraph (c)(5).
                 The revisions and addition read as follows:
                Sec. 208.14 Approval, denial, referral, or dismissal of application.
                * * * * *
                [[Page 46943]]
                 (c) Denial, referral, or dismissal by an asylum officer. If the
                asylum officer does not grant asylum to an applicant after an interview
                or hearing conducted in accordance with Sec. 208.9, or if, as provided
                in Sec. 208.10, the applicant is deemed to have waived his or her
                right to an interview, a hearing, or an adjudication by an asylum
                officer, the asylum officer shall deny, refer, or dismiss the
                application as follows:
                 (1) Inadmissible or deportable aliens. Except as provided in
                paragraph (c)(4) or (5) of this section, in the case of an applicant
                who appears to be inadmissible or deportable under section 212(a) or
                237(a) of the Act, the asylum officer shall refer the application to an
                immigration judge, together with the appropriate charging document, for
                adjudication in removal proceedings (or, where charging documents may
                not be issued, shall dismiss the application).
                * * * * *
                 (5) Alien referred for consideration of asylum application in a
                hearing before an asylum officer after positive credible fear finding.
                In the case of an application within the jurisdiction of USCIS pursuant
                to Sec. 208.2(a)(1)(ii), the asylum officer shall deny the application
                for asylum. The applicant will be provided a written notice of the
                decision. The decision will also include an order of removal based on
                the immigration officer's inadmissibility determination under section
                235(b)(1)(A)(i) of the Act and a decision on any request for
                withholding of removal under Sec. 208.16(d) and deferral of removal
                under Sec. 208.17, where applicable. The notice shall explain that the
                alien may seek to have an immigration judge review the decision, in
                accordance with 8 CFR 1003.48. The alien shall have 30 days to
                affirmatively request such review as directed on the decision notice.
                The failure to timely request further review will be processed as the
                alien's decision not to request review.
                 (i) If the alien requests such immigration judge review, USCIS will
                serve the alien with a notice of referral to an immigration judge for
                review of the asylum application. USCIS shall provide the record of the
                proceedings before the asylum officer, as outlined in Sec. 208.9(f),
                to the immigration judge and the alien, along with the written notice
                of decision, including the order of removal issued by the asylum
                officer, and the alien's request for review.
                 (ii) If the alien does not request a review by an immigration
                judge, the decision and order of removal will be final and the alien
                shall be subject to removal from the United States.
                 (iii) Once USCIS has commenced proceedings under 8 CFR 1003.48 by
                filing the notice of referral, the immigration judge has sole
                jurisdiction to review the application and an asylum officer may not
                reopen or reconsider the application once it has been referred to the
                immigration judge.
                * * * * *
                 8. Amend Sec. 208.16 by revising paragraphs (a) and (c)(4) to read
                as follows:
                Sec. 208.16 Withholding of removal under section 241(b)(3)(B) of the
                Act and withholding of removal under the Convention Against Torture.
                 (a) Consideration of application for withholding of removal. An
                asylum officer shall not decide whether the exclusion, deportation, or
                removal of an alien to a country where the alien's life or freedom
                would be threatened must be withheld, except in the case of an alien
                who is determined to be an applicant for admission under section
                235(b)(1) of the Act, is found to have a credible fear of persecution
                or torture, and whose case is subsequently retained by or referred to
                USCIS pursuant to the jurisdiction provided at Sec. 208.2(a)(1)(ii) to
                consider the application for asylum, and that application for asylum is
                denied.
                * * * * *
                 (c) * * *
                 (4) In considering an application for withholding of removal under
                the Convention Against Torture, the asylum officer shall first
                determine whether the alien is more likely than not to be tortured in
                the country of removal. If the asylum officer determines that the alien
                is more likely than not to be tortured in the country of removal, the
                alien is entitled to protection under the Convention Against Torture.
                Protection under the Convention Against Torture will be granted either
                in the form of withholding of removal or in the form of deferral of
                removal. An alien entitled to such protection shall be granted
                withholding of removal unless the alien is subject to mandatory denial
                of withholding of removal under paragraph (d)(2) or (3) of this
                section. If an alien entitled to such protection is subject to
                mandatory denial of withholding of removal under paragraph (d)(2) or
                (3) of this section, the alien's removal shall be deferred under Sec.
                208.17(a).
                * * * * *
                0
                9. Amend Sec. 208.17 by revising paragraph (b), (d), and (e) to read
                as follows:
                Sec. 208.17 Deferral of removal under the Convention Against Torture.
                * * * * *
                 (b) Notice to alien. (1) After an asylum officer orders an alien
                described in paragraph (a) of this section removed, the asylum officer
                shall inform the alien that his or her removal to the country where he
                or she is more likely than not to be tortured shall be deferred until
                such time as the deferral is terminated under this section or under 8
                CFR 1208.17. The asylum officer shall inform the alien that deferral of
                removal:
                 (i) Does not confer upon the alien any lawful or permanent
                immigration status in the United States;
                 (ii) Will not necessarily result in the alien being released from
                the custody of DHS if the alien is subject to such custody;
                 (iii) Is effective only until terminated; and
                 (iv) Is subject to review and termination pursuant to this section
                or 8 CFR 1208.17 if the asylum officer determines that it is not likely
                that the alien would be tortured in the country to which removal has
                been deferred, or if the alien requests that deferral be terminated.
                 (2) The asylum officer shall also inform the alien that removal has
                been deferred only to the country in which it has been determined that
                the alien is likely to be tortured, and that the alien may be removed
                at any time to another country where he or she is not likely to be
                tortured.
                * * * * *
                 (d) Termination of deferral of removal. (1) At any time while
                deferral of removal is in effect, the Asylum Office with jurisdiction
                over an alien whose removal has been deferred under paragraph (a) of
                this section may schedule a hearing to consider whether deferral of
                removal should be terminated.
                 (2) The Asylum Office shall provide notice to the alien of the
                time, place, and date of the termination hearing. Such notice shall
                inform the alien that the alien may supplement the information in his
                or her initial application for withholding of removal under the
                Convention Against Torture and shall provide that the alien must submit
                any such supplemental information within 10 calendar days of service of
                such notice (or 13 calendar days if service of such notice was by
                mail).
                 (3) The asylum officer shall conduct a hearing and make a de novo
                determination, based on the record of proceeding and initial
                application in addition to any new evidence submitted by the alien, as
                to whether the alien is more likely than not to be tortured in the
                country to which removal has been
                [[Page 46944]]
                deferred. This determination shall be made under the standards for
                eligibility set out in Sec. 208.16(c). The burden is on the alien to
                establish that it is more likely than not that he or she would be
                tortured in the country to which removal has been deferred.
                 (4) If the asylum officer determines that the alien is more likely
                than not to be tortured in the country to which removal has been
                deferred, the order of deferral shall remain in place. If the asylum
                officer determines that the alien has not established that he or she is
                more likely than not to be tortured in the country to which removal has
                been deferred, the deferral of removal shall be terminated and the
                alien may be removed to that country. Appeal of the asylum officer's
                decision shall lie to the immigration judge under the process provided
                for at Sec. 208.14(c)(5) and 8 CFR 1003.48.
                 (e) Termination at the request of the alien. (1) At any time while
                deferral of removal is in effect, the alien may make a written request
                to the Asylum Office with jurisdiction over the initial determination
                to terminate the deferral order. If satisfied on the basis of the
                written submission that the alien's request is knowing and voluntary,
                the asylum officer shall terminate the order of deferral and the alien
                may be removed.
                 (2) If necessary, the Asylum Office may calendar a hearing for the
                sole purpose of determining whether the alien's request is knowing and
                voluntary. If the asylum officer determines that the alien's request is
                knowing and voluntary, the order of deferral shall be terminated. If
                the asylum officer determines that the alien's request is not knowing
                and voluntary, the alien's request shall not serve as the basis for
                terminating the order of deferral.
                * * * * *
                0
                10. Amend Sec. 208.18 by revising paragraph (b)(1) to read as follows:
                Sec. 208.18 Implementation of the Convention Against Torture.
                * * * * *
                 (b) * * *
                 (1) Aliens in proceedings on or after March 22, 1999. (i) An alien
                who is in exclusion, deportation, or removal proceedings on or after
                March 22, 1999, may apply for withholding of removal under 8 CFR
                1208.16(c), and, if applicable, may be considered for deferral of
                removal under 8 CFR 1208.17(a).
                 (ii) In addition, an alien may apply for withholding of removal
                under Sec. 208.16(c), and, if applicable, may be considered for
                deferral of removal under Sec. 208.17(a), in the following situation:
                the alien is determined to be an applicant for admission under section
                235(b)(1) of the Act, the alien is found to have a credible fear of
                persecution or torture and the alien's case is subsequently retained by
                or referred to USCIS pursuant to the jurisdiction provided at Sec.
                208.2(a)(1)(ii) for consideration of the application for asylum, and
                that application is denied.
                * * * * *
                0
                11. Revise Sec. 208.19 to read as follows:
                Sec. 208.19 Decisions.
                 The decision of an asylum officer issued in accordance with Sec.
                208.14(b) or (c) shall be communicated in writing to the applicant in-
                person, by mail, or electronically. Pursuant to Sec. 208.9(d), an
                applicant must appear in person to receive and to acknowledge receipt
                of the decision unless, in the discretion of the asylum office
                director, service by mail or electronic service is appropriate. A
                letter communicating denial or referral of the application shall state
                the basis for denial or referral and include an assessment of the
                applicant's credibility.
                0
                12. Revise Sec. 208.22 to read as follows:
                Sec. 208.22 Effect on exclusion, deportation, and removal
                proceedings.
                 An alien who has been granted asylum may not be deported or removed
                unless his or her asylum status is terminated pursuant to Sec. 208.24
                or 8 CFR 1208.24. An alien who is granted withholding of removal or
                deportation, or deferral of removal, may not be deported or removed to
                the country to which his or her deportation or removal is ordered
                withheld or deferred unless the withholding order is terminated
                pursuant to Sec. 208.24 or 8 CFR 1208.24, or deferral is terminated
                pursuant to Sec. 208.17(d) or (e) or 8 CFR 1208.17.
                0
                13. Amend Sec. 208.30 by:
                0
                a. Revising the section heading and paragraphs (b), (c), and (d)
                introductory text;
                0
                b. Adding a heading for paragraph (e);
                0
                c. Removing the introductory text of paragraph (e); and
                0
                d. Revising paragraphs (e)(1) through (4), (e)(5)(i)(A), (e)(6)
                introductory text, (e)(6)(ii), (f), and (g).
                 The revisions and addition read as follows:
                Sec. 208.30 Credible fear determinations involving stowaways and
                applicants for admission found inadmissible pursuant to section
                212(a)(6)(C) or 212(a)(7) of the Act.
                * * * * *
                 (b) Process and authority. If an alien subject to section 235(a)(2)
                or 235(b)(1) of the Act indicates an intention to apply for asylum, or
                expresses a fear of persecution or torture, or a fear of return to his
                or her country, the inspecting officer shall not proceed further with
                removal of the alien until the alien has been referred for an interview
                by a USCIS asylum officer in accordance with this section. A USCIS
                asylum officer shall then screen the alien for a credible fear of
                persecution or torture. An asylum officer, as defined in section
                235(b)(1)(E) of the Act, has the authorities described in Sec.
                208.9(c). If the asylum officer in his or her discretion determines
                that circumstances so warrant, the asylum officer, after supervisory
                concurrence, may refer the alien for proceedings under section 240 of
                the Act without making a credible fear determination.
                 (c) Treatment of family units.(1) A spouse or child of a principal
                alien who arrived in the United States concurrently with the principal
                alien shall be included in that alien's positive fear evaluation and
                determination, unless the principal alien declines such inclusion.
                However, any alien may have his or her evaluation and determination
                made separately, if he or she expresses such a desire.
                 (2) The asylum officer in his or her discretion may also include
                other accompanying family members who arrived in the United States
                concurrently with a principal alien in that alien's positive fear
                evaluation and determination for purposes of family unity.
                 (3) For purposes of family units in credible fear determinations,
                the definition of ``child'' means an unmarried person under 21 years of
                age.
                 (d) Interview. A USCIS asylum officer will conduct the credible
                fear interview in a nonadversarial manner, separate and apart from the
                general public. The purpose of the interview shall be to elicit all
                relevant and useful information bearing on whether the alien can
                establish a credible fear of persecution or torture. The information
                provided during the interview may form the basis of an asylum
                application pursuant to paragraph (f) of this section and Sec.
                208.3(a)(2). The asylum officer shall conduct the interview as follows:
                * * * * *
                 (e) Determination. (1) The asylum officer shall create a written
                record of his or her determination, including a summary of the material
                facts as stated by the applicant, any additional facts relied on by the
                officer, and the officer's determination of whether, in light of such
                facts, the alien has established a credible fear of persecution or
                torture.
                 (2) An alien will be found to have a credible fear of persecution
                if there is a
                [[Page 46945]]
                significant possibility, taking into account the credibility of the
                statements made by the alien in support of the alien's claim and such
                other facts as are known to the officer, the alien can establish
                eligibility for asylum under section 208 of the Act or for withholding
                of removal under section 241(b)(3) of the Act. However, prior to
                January 1, 2030, in the case of an alien physically present in or
                arriving in the Commonwealth of the Northern Mariana Islands, the
                officer may only find a credible fear of persecution if there is a
                significant possibility that the alien can establish eligibility for
                withholding of removal pursuant to section 241(b)(3) of the Act.
                 (3) An alien will be found to have a credible fear of torture if
                the alien shows that there is a significant possibility that he or she
                is eligible for withholding of removal or deferral of removal under the
                Convention Against Torture, pursuant to Sec. 208.16 or Sec. 208.17.
                 (4) In determining whether the alien has a credible fear of
                persecution, as defined in section 235(b)(1)(B)(v) of the Act, or a
                credible fear of torture, the asylum officer shall consider whether the
                alien's case presents novel or unique issues that merit a positive
                credible fear finding pursuant to paragraph (f) of this section in
                order to receive further consideration of the application for asylum
                and withholding of removal.
                 (5)(i)(A) Except as provided in paragraphs (e)(5)(ii) through (iv)
                or paragraph (e)(6) or (7) of this section, if an alien is able to
                establish a credible fear of persecution or torture but appears to be
                subject to one or more of the mandatory bars to applying for, or being
                granted, asylum contained in section 208(a)(2) and (b)(2) of the Act,
                or to withholding of removal contained in section 241(b)(3)(B) of the
                Act, the Department of Homeland Security shall nonetheless retain or
                refer the alien for further consideration of the alien's claim pursuant
                to paragraph (f) of this section, if the alien is not a stowaway. If
                the alien is a stowaway, the Department shall place the alien in
                proceedings for consideration of the alien's claim pursuant to Sec.
                208.2(c)(3).
                * * * * *
                 (6) Prior to any determination concerning whether an alien arriving
                in the United States at a U.S.-Canada land border port-of-entry or in
                transit through the United States during removal by Canada has a
                credible fear of persecution or torture, the asylum officer shall
                conduct a threshold screening interview to determine whether such an
                alien is ineligible to apply for asylum pursuant to section
                208(a)(2)(A) of the Act and subject to removal to Canada by operation
                of 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 (``Agreement''). In
                conducting this threshold screening interview, the asylum officer shall
                apply all relevant interview procedures outlined in paragraph (d) of
                this section, provided, however, that paragraph (d)(2) of this section
                shall not apply to aliens described in this paragraph (e)(6). The
                asylum officer shall advise the alien of the Agreement's exceptions and
                question the alien as to applicability of any of these exceptions to
                the alien's case.
                * * * * *
                 (ii) If the alien establishes by a preponderance of the evidence
                that he or she qualifies for an exception under the terms of the
                Agreement, the asylum officer shall make a written notation of the
                basis of the exception, 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.
                * * * * *
                 (f) Procedures for a positive credible fear finding. If an alien,
                other than an alien stowaway, is found to have a credible fear of
                persecution or torture, the asylum officer will so inform the alien and
                issue the alien a record of the positive credible fear determination,
                including copies of the asylum officer's notes, the summary of the
                material facts, and other materials upon which the determination was
                based. The documents may be served in-person, by mail, or
                electronically. USCIS will retain jurisdiction over the application for
                asylum pursuant to Sec. 208.2(a)(1)(ii) for further consideration in a
                hearing pursuant to Sec. 208.9 or refer for consideration of the
                asylum and withholding of removal claim in proceedings under section
                240 of the Act. If an alien stowaway is found to have a credible fear
                of persecution or torture, the asylum officer will so inform the alien
                and issue a Form I-863, Notice of Referral to Immigration Judge, for
                full consideration of the asylum claim, or the withholding of removal
                claim, in proceedings under Sec. 208.2(c). Parole of the alien may be
                considered only in accordance with section 212(d)(5) of the Act and 8
                CFR 212.5.
                 (g) Procedures for a negative credible fear finding. (1) If an
                alien is found not to have a credible fear of persecution or torture,
                the asylum officer shall provide the alien with a written notice of
                decision and issue the alien a record of the credible fear
                determination, including copies of the asylum officer's notes, the
                summary of the material facts, and other materials upon which the
                determination was based. The documents may be served in-person, by
                mail, or electronically. The asylum officer shall inquire whether the
                alien wishes to have an immigration judge review the negative decision,
                which shall include an opportunity for the alien to be heard and
                questioned by the immigration judge as provided for under section
                235(b)(1)(B)(iii)(III) of the Act, using Form I-869, Record of Negative
                Credible Fear Finding and Request for Review by Immigration Judge. The
                alien shall indicate whether he or she desires such review on Form I-
                869. A refusal by the alien to make such indication shall be considered
                a request for review.
                 (i) If the alien requests such review, or refuses to either request
                or decline such review, the asylum officer shall serve him or her with
                a Form I-863, Notice of Referral to Immigration Judge, for review of
                the credible fear determination in accordance with paragraph (g)(2) of
                this section. Once the asylum officer has served the alien with Form I-
                863, the immigration judge shall have sole jurisdiction to review
                whether the alien has established a credible fear of persecution or
                torture, and an asylum officer may not reconsider or reopen the
                determination.
                 (ii) If the alien is not a stowaway and does not request a review
                by an immigration judge, the officer shall order the alien removed and
                issue a Form I-860, Notice and Order of Expedited Removal, after review
                by a supervisory asylum officer.
                 (iii) If the alien is a stowaway and the alien does not request a
                review by an immigration judge, the asylum officer shall refer the
                alien to the district director for completion of removal proceedings in
                accordance with section 235(a)(2) of the Act.
                 (2)(i) Immigration judges will review negative credible fear
                findings as provided in 8 CFR 1003.42 and 1208.30(g).
                 (ii) The record of the negative credible fear determination,
                including copies of the Form I-863, the asylum officer's notes, the
                summary of the material facts, and other materials upon which the
                determination was based shall be provided to the immigration judge with
                the negative determination.
                PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
                0
                14. The authority citation for part 235 is revised to read as follows:
                [[Page 46946]]
                 Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
                to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
                1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; 48 U.S.C. 1806,
                1807, and 1808 and 48 U.S.C. 1806 notes (Title VII of Pub. L. 110-
                229, 122 Stat. 754); 8 U.S.C. 1185 note (section 7209 of Pub. L.
                108-458, 118 Stat. 3638 and Pub. L. 112-54, 125 Stat. 550).
                0
                15. Amend Sec. 235.3 by revising paragraphs (b)(2)(iii) and (b)(4)(ii)
                to read as follows:
                Sec. 235.3 Inadmissible aliens and expedited removal.
                * * * * *
                 (b) * * *
                 (2) * * *
                 (iii) Detention and parole of alien in expedited removal. An alien
                whose inadmissibility is being considered under this section or who has
                been ordered removed pursuant to this section shall be detained pending
                determination and removal. Parole of such alien, in accordance with
                section 212(d)(5) of the Act and Sec. 212.5 of this chapter, may be
                permitted only when DHS determines, in the exercise of discretion, that
                parole is required to meet a medical emergency, for a legitimate law
                enforcement objective, or because detention is unavailable or
                impracticable (including situations in which continued detention would
                unduly impact the health or safety of individuals with special
                vulnerabilities).
                * * * * *
                 (4) * * *
                 (ii) Detention pending credible fear interview. Pending the
                credible fear determination by an asylum officer and any review of that
                determination by an immigration judge, the alien shall be detained.
                Parole of such alien, in accordance with section 212(d)(5) of the Act
                and Sec. 212.5 of this chapter, may be permitted only when DHS
                determines, in the exercise of discretion, that parole is required to
                meet a medical emergency, for a legitimate law enforcement objective,
                or because detention is unavailable or impracticable (including
                situations in which continued detention would unduly impact the health
                or safety of individuals with special vulnerabilities). A grant of
                parole would be for the limited purpose of parole out of custody and
                cannot serve as an independent basis for employment authorization under
                Sec. 274a.12(c)(11) of this chapter. Prior to the interview, the alien
                shall be given time to contact and consult with any person or persons
                of his or her choosing. If the alien is detained, such consultation
                shall be made available in accordance with the policies and procedures
                of the detention facility where the alien is detained, shall be at no
                expense to the Government, and shall not unreasonably delay the
                process.
                * * * * *
                0
                16. Amend Sec. 235.6 by:
                0
                a. Removing and reserving paragraphs (a)(1)(iii) and (iv); and
                0
                b. Revising paragraph (a)(2)(i);
                0
                c. Removing the period at the end of paragraph (c)(2)(ii) and adding
                ``; or'' in its place; and
                0
                d. Revising paragraph (a)(2)(iii).
                 The revisions read as follows:
                Sec. 235.6 Referral to immigration judge.
                 (a) * * *
                 (2) * * *
                 (i) If an asylum officer determines that the alien does not have a
                credible fear of persecution or torture, and the alien requests a
                review of that determination by an immigration judge;
                * * * * *
                 (iii) If an immigration officer refers an applicant in accordance
                with the provisions of Sec. 208.2(c)(1) or (2) of this chapter to an
                immigration judge for an asylum- or withholding-only hearing.
                * * * * *
                DEPARTMENT OF JUSTICE
                 Accordingly, for the reasons set forth in the preamble, the
                Attorney General proposes to amend 8 CFR parts 1003, 1208, and 1235 as
                follows:
                PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                17. 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
                18. Amend Sec. 1003.1 by adding paragraph (b)(15) to read as follows:
                Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
                Immigration Appeals.
                * * * * *
                 (b) * * *
                 (15) Decisions of immigration judges in proceedings pursuant to
                Sec. 1003.48, including immigration judges' decisions on motions under
                Sec. 1003.48(d) to vacate removal orders. Immigration judges'
                decisions denying applications because the applicant failed to appear
                cannot be appealed, but immigration judges' decisions on motions to
                reopen and motions to reconsider can be appealed.
                * * * * *
                0
                19. Amend Sec. 1003.12 by revising the second sentence to read as
                follows:
                Sec. 1003. 12 Scope of rules.
                 * * * Except where specifically stated, the rules in this subpart
                apply to matters before immigration judges, including, but not limited
                to: Deportation, exclusion, removal, bond, rescission, departure
                control, asylum proceedings (including application review proceedings
                under Sec. 1003.48), and disciplinary proceedings. * * *
                0
                20. Add Sec. 1003.48 to read as follows:
                Sec. 1003.48 Review of applications denied after a positive credible
                fear determination.
                 (a) Scope. In proceedings conducted under this section, immigration
                judges shall have the authority, upon the request of an applicant under
                8 CFR 208.14(c)(5), to review asylum officers' decisions on
                applications for asylum under section 208 of the Act, withholding of
                removal under section 241(b)(3) of the Act, and withholding or deferral
                of removal under the Convention Against Torture. Where an asylum
                officer grants one application but denies another, the immigration
                judge has the authority to review both the denial and the grant. An
                immigration judge shall not have the authority in these proceedings to
                consider an application for a form of relief and protection other than
                those listed in the first sentence of this paragraph (a), or to review
                an asylum officer's inadmissibility determination under section
                235(b)(1)(A)(i) of the Act. However, an applicant can file a motion to
                vacate a removal order as specified in paragraph (d) of this section.
                 (b) Commencement of proceedings. Proceedings under this section
                shall commence when DHS files with the Immigration Court the documents
                identified in paragraphs (b)(1) through (4) of this section:
                 (1) A Notice of Referral to the immigration judge;
                 (2) A copy of the record of proceedings before the asylum officer,
                as outlined in 8 CFR 208.9(f);
                 (3) The asylum officer's written decision, including the removal
                order issued under 8 CFR 208.14(c)(5) by the asylum officer; and
                 (4) Proof that the Notice of Referral, the record of proceedings,
                and the written decision, including the removal order, have been served
                on the applicant, which may consist of service via mail.
                 (c) Proceedings before the immigration judge. After a Notice of
                [[Page 46947]]
                Referral is filed with the immigration court, the case shall be
                scheduled for a hearing, and a hearing notice shall be served on the
                parties.
                 (d) Motion to vacate removal order. The applicant may file a motion
                with the immigration judge to vacate the asylum officer's order of
                removal. For the motion to be granted, the applicant must show that he
                or she is prima facie eligible for a form of relief or protection under
                the Act that cannot be considered in proceedings under this section. If
                the applicant makes such a showing, the immigration judge may, in the
                exercise of his or her discretion, grant the motion. If the immigration
                judge grants the motion, DHS may, in the exercise of its discretion,
                place the applicant in removal proceedings, by issuing a Notice to
                Appear and filing it with the immigration court. An applicant may file
                only one such a motion, and the motion must be filed before the
                immigration judge issues a decision under paragraph (e) of this
                section. A motion to vacate to apply for voluntary departure under
                section 240B of the Act shall be denied.
                 (e) Immigration judge review. (1) The immigration judge shall
                determine, de novo, whether the applicant qualifies for the relief or
                protection at issue and, if applicable, whether the applicant merits
                relief in the exercise of discretion. In reaching a decision in
                proceedings under this section, the immigration judge shall review the
                record created before the asylum officer, as well as the asylum
                officer's decision. Either party may provide additional testimony and
                documentation, but the party must establish that the testimony or
                documentation is not duplicative of testimony or documentation already
                presented to the asylum officer, and that the testimony or
                documentation is necessary to ensure a sufficient factual record upon
                which to base a reasoned decision on the application or applications.
                The immigration judge shall not have the authority to remand the case
                to the asylum officer.
                 (2) If the immigration judge grants the applicant asylum under
                section 208 of the Act, the immigration judge shall issue orders
                granting the application and vacating the removal order issued by an
                asylum officer under 8 CFR 208.14(c)(5). If the immigration judge
                grants the application for withholding of removal under section
                241(b)(3) of the Act, or withholding or deferral of removal under the
                Convention Against Torture, the immigration judge shall issue an order
                granting the application at issue, but shall not vacate the removal
                order issued by the asylum officer under 8 CFR 208.14(c)(5).
                 (f) Failure to appear. (1) If the applicant fails to appear at a
                hearing in proceedings conducted under this section, and DHS
                establishes by clear, unequivocal, and convincing evidence that written
                notice of the hearing was served on the applicant, the immigration
                judge shall deny the application or applications under review. There is
                no appeal from an immigration judge's decision denying an application
                or applications for failure to appear. However, following such a
                decision, the applicant may file a motion to reopen with the
                immigration judge. In the motion, the applicant must establish that:
                 (i) The failure to appear was because of exceptional circumstances
                (such as battery or extreme cruelty to the applicant or any child or
                parent of the applicant, serious illness of the applicant, or serious
                illness or death of the spouse, child, or parent of the applicant, but
                not including less compelling circumstances) beyond the control of the
                applicant;
                 (ii) The applicant did not receive notice of the hearing; or
                 (iii) The applicant was in Federal or State custody at the time of
                the hearing, and the failure to appear was through no fault of the
                applicant.
                 (2) A motion filed under paragraph (f)(1)(i) of this section must
                be filed within 180 days of the hearing. A motion filed under paragraph
                (f)(1)(ii) or (iii) of this section may be filed at any time. When a
                motion under this paragraph (f) is granted, the applicant's proceedings
                under this section are reopened. The granting of such a motion does not
                entitle the applicant to be placed in removal proceedings.
                PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
                0
                21. The authority section for part 1208 continues to read as follows:
                 Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
                VII of Pub. L. 110-229; Pub. L. 115-218.
                0
                22. Amend Sec. 1208.2 by:
                0
                a. Revising paragraph (a);
                0
                b. Revising the last sentence of paragraph (b);
                0
                c. Removing the word ``or'' at the end of paragraph (c)(1)(vii);
                0
                d. Removing the period at the end of paragraph (c)(1)(viii) and adding
                ``; or'' in its place;
                0
                e. Removing and reserving paragraph (c)(1)(ix);
                0
                f. Adding paragraph (c)(1)(x); and
                0
                g. In paragraph (c)(3)(i):
                0
                i. Adding the words ``and in 8 CFR 1003.48'' after the words ``Except
                as provided in this section''; and
                0
                ii. Removing ``paragraph (c)(1) or (c)(2)'' and adding ``paragraph
                (c)(1) or (2)'' in its place.
                 The revisions and addition read as follows:
                Sec. 1208.2 Jurisdiction.
                 (a) U.S. Citizenship and Immigration Services (USCIS). (1) Except
                as provided in paragraph (b) or (c) of this section, USCIS shall have
                initial jurisdiction over:
                 (i) An asylum application filed by an alien physically present in
                the United States or seeking admission at a port-of-entry; and
                 (ii) Hearings provided in accordance with section 235(b)(1)(B)(ii)
                of the Act to further consider the application for asylum of an alien,
                other than a stowaway, found to have a credible fear of persecution or
                torture in accordance with 8 CFR 208.30(f) and retained by USCIS, or
                referred to USCIS by an immigration judge pursuant to Sec. Sec.
                1003.42 of this chapter and 1208.30 after the immigration judge has
                vacated a negative credible fear determination. Hearings to further
                consider applications for asylum under this paragraph (a)(1)(ii) are
                governed by the procedures provided for under 8 CFR 208.9. Further
                consideration of an asylum application filed by a stowaway who has
                received a positive credible fear determination will be under the
                jurisdiction of an immigration judge pursuant to paragraph (c) of this
                section.
                 (2) USCIS shall also have initial jurisdiction over credible fear
                determinations under 8 CFR 208.30 and reasonable fear determinations
                under 8 CFR 208.31.
                 (b) * * * Immigration judges shall also have the authority to
                review credible fear determinations referred to the Immigration Court
                under Sec. 1208.30, reasonable fear determinations referred to the
                Immigration Court under Sec. 1208.31, and asylum officers' decisions
                on applications, under 8 CFR 208.14(c)(5), referred to the Immigration
                Court for review under Sec. 1003.48 of this chapter.
                 (c) * * *
                 (1) * * *
                 (x) An alien referred for proceedings under Sec. 1003.48 of this
                chapter on or after [effective date of the final rule].
                * * * * *
                0
                23. Amend Sec. 1208.3 by revising paragraphs (a) and (c)(3) to read as
                follows:
                [[Page 46948]]
                Sec. 1208.3 Form of application.
                 (a)(1) Except for applicants described in paragraph (a)(2) of this
                section, an asylum applicant must file Form I-589, Application for
                Asylum and for Withholding of Removal, together with any additional
                supporting evidence in accordance with the instructions on the form.
                The applicant's spouse and children shall be listed on the application
                and may be included in the request for asylum if they are in the United
                States. One additional copy of the principal applicant's Form I-589
                must be submitted for each dependent included in the principal's
                application.
                 (2) In proceedings under Sec. 1003.48 of this chapter, the written
                record of a positive credible fear finding issued in accordance with 8
                CFR 208.30(f), Sec. 1003.42 of this chapter, or Sec. 1208.30 shall be
                construed as the asylum application and satisfies the application
                filing requirements in paragraph (a)(1) of this section and Sec.
                1208.4(b). The written record of the positive credible fear
                determination shall be considered a complete asylum application for
                purposes of Sec. 1208.4(a), with the date of service of the positive
                credible fear determination on the alien considered the date of filing
                and receipt, and shall be subject to the conditions and consequences
                provided for in paragraph (c) of this section following the applicant's
                signature at the asylum hearing before the USCIS asylum officer. The
                applicant's spouse and children may be included in the request for
                asylum only if they were included in the credible fear determination
                pursuant to 8 CFR 208.30(c). The asylum applicant may subsequently seek
                to amend, correct, or supplement the record of proceedings created
                before the asylum officer or during the credible fear review process,
                but must otherwise meet the requirements of Sec. 1003.48(e) of this
                chapter concerning new documentation or testimony.
                * * * * *
                 (c) * * *
                 (3) An asylum application under paragraph (a)(1) of this section
                must be properly filed in accordance with the form instructions and
                with Sec. Sec. 1003.24, 1003.31(b), and 1103.7(a)(3) of this chapter,
                including payment of a fee, if any, as explained in the instructions to
                the application. For purposes of filing with an immigration court, an
                asylum application is incomplete if it does not include a response to
                each of the required questions contained in the form, is unsigned, is
                unaccompanied by the required materials specified in paragraph (a) of
                this section, is not completed and submitted in accordance with the
                form instructions, or is unaccompanied by any required fee receipt or
                other proof of payment as provided in Sec. 1208.4(d)(3). The filing of
                an incomplete application shall not commence the period after which the
                applicant may file an application for employment authorization. An
                application that is incomplete shall be rejected by the Immigration
                Court. If an applicant wishes to have his or her application for asylum
                considered, he or she shall correct the deficiencies in the incomplete
                application and refile it within 30 days of rejection. Failure to
                correct the deficiencies in an incomplete application or failure to
                timely refile the application with the deficiencies corrected, absent
                exceptional circumstances as defined in Sec. 1003.10(b) of this
                chapter, shall result in a finding that the alien has abandoned that
                application and waived the opportunity to file such an application;
                * * * * *
                Sec. 1208.4 [Amended]
                0
                24. Amend Sec. 1208.4 by adding the words ``, except that an alien in
                a review proceeding under Sec. 1003.48 of this chapter is not required
                to file the Form I-589'' after the word ``case'' in paragraph
                (b)(3)(iii).
                Sec. 1208.5 [Amended]
                0
                25. Amend Sec. 1208.5(b)(2) by removing the reference ``Sec. 1212.5
                of this chapter'' and adding ``8 CFR 212.5'' in its place.
                0
                26. Amend Sec. 1208.14 by:
                0
                a. Removing ``the Office of International Affairs'' and adding in its
                place ``USCIS'' in paragraph (b);
                0
                b. Revising paragraphs (c) introductory text and (c)(1); and
                0
                c. Adding paragraph (c)(5).
                 The revisions and addition read as follows:
                Sec. 1208.14 Approval, denial, referral, or dismissal of application.
                * * * * *
                 (c) Denial, referral, or dismissal by an asylum officer. If the
                asylum officer does not grant asylum to an applicant after an interview
                or hearing conducted in accordance with 8 CFR 208.9, or if, as provided
                in 8 CFR 208.10, the applicant is deemed to have waived his or her
                right to an interview, a hearing, or an adjudication by an asylum
                officer, the asylum officer shall deny, refer, or dismiss the
                application, as follows:
                 (1) Inadmissible or deportable aliens. Except as provided in
                paragraph (c)(4) or (5) of this section, in the case of an applicant
                who appears to be inadmissible or deportable under section 212(a) or
                237(a) of the Act, the asylum officer shall refer the application to an
                immigration judge, together with the appropriate charging document, for
                adjudication in removal proceedings (or, where charging documents may
                not be issued, shall dismiss the application).
                * * * * *
                 (5) Alien referred for consideration of asylum application in a
                hearing before an asylum officer after positive credible fear finding.
                In the case of an application within the jurisdiction of USCIS pursuant
                to 8 CFR 208.2(a)(1)(ii), the asylum officer shall deny the application
                for asylum. The applicant will be provided a written notice of the
                decision. The decision will also include an order of removal based on
                the immigration officer's inadmissibility determination under section
                235(b)(1)(A)(i) of the Act and a decision on any request for
                withholding of removal under 8 CFR 208.16(d) and deferral of removal
                under 8 CFR 208.17, where applicable. The notice shall explain that the
                alien may seek to have an immigration judge review the decision, in
                accordance with Sec. 1003.48 of this chapter. The alien shall have 30
                days to affirmatively request such review as directed on the decision
                notice. The failure to timely request further review will be processed
                as the alien's decision not to request review.
                 (i) If the alien requests such immigration judge review, USCIS will
                serve the alien with a notice of referral to an immigration judge for
                review of the asylum application. USCIS shall provide the record of the
                proceedings before the asylum officer, as outlined in 8 CFR 208.9(f),
                to the immigration judge and the alien, along with the written notice
                of decision, including the order of removal issued by the asylum
                officer, and the alien's request for review.
                 (ii) If the alien does not request a review by an immigration
                judge, the decision and order of removal will be final and the alien
                shall be subject to removal from the United States.
                 (iii) Once USCIS has commenced proceedings under Sec. 1003.48 of
                this chapter by filing the notice of referral on the alien, the
                immigration judge has sole jurisdiction to review the application, and
                an asylum officer may not reopen or reconsider the application once it
                has been referred to the immigration judge.
                * * * * *
                0
                27. Amend Sec. 1208.16 by revising paragraph (a) to read as follows:
                Sec. 1208.16 Withholding of removal under section 241(b)(3)(B) of the
                Act and withholding of removal under the Convention Against Torture.
                 (a) Consideration of application for withholding of removal. An
                asylum
                [[Page 46949]]
                officer shall not decide whether the exclusion, deportation, or removal
                of an alien to a country where the alien's life or freedom would be
                threatened must be withheld, except in the case of an alien who is
                determined to be an applicant for admission under section 235(b)(1) of
                the Act, is found to have a credible fear of persecution or torture,
                and whose case is subsequently retained by or referred to USCIS
                pursuant to the jurisdiction provided at 8 CFR 208.2(a)(1)(ii) to
                consider the application for asylum, and that application for asylum is
                denied. In exclusion, deportation, or removal proceedings, an
                immigration judge may adjudicate both an asylum claim and a request for
                withholding of removal, whether or not asylum is granted.
                * * * * *
                0
                28. Amend Sec. 1208.18 by revising paragraph (b)(1) to read as
                follows:
                Sec. 1208.18 Implementation of the Convention Against Torture.
                * * * * *
                 (b) * * *
                 (1) Aliens in proceedings on or after March 22, 1999. (i) An alien
                who is in exclusion, deportation, or removal proceedings on or after
                March 22, 1999, may apply for withholding of removal under Sec.
                1208.16(c), and, if applicable, may be considered for deferral of
                removal under Sec. 1208.17(a).
                 (ii) In addition, an alien may apply for withholding of removal
                under 8 CFR 208.16(c), and, if applicable, may be considered for
                deferral of removal under 8 CFR 208.17(a), in the following situation:
                the alien is determined to be an applicant for admission under section
                235(b)(1) of the Act, the alien is found to have a credible fear of
                persecution or torture, and the alien's case is subsequently retained
                by or referred to USCIS pursuant to the jurisdiction provided at 8 CFR
                208.2(a)(1)(ii) to consider the application for asylum, and that
                application for asylum is denied.
                * * * * *
                Sec. 1208.19 [Removed and Reserved]
                0
                29. Remove and reserve Sec. 1208.19.
                0
                30. Revise Sec. 1208.22 to read as follows:
                Sec. 1208.22 Effect on exclusion, deportation, and removal
                proceedings.
                 An alien who has been granted asylum may not be deported or removed
                unless his or her asylum status is terminated pursuant to 8 CFR 208.24
                or Sec. 1208.24. An alien who is granted withholding of removal or
                deportation, or deferral of removal, may not be deported or removed to
                the country to which his or her deportation or removal is ordered
                withheld or deferred unless the withholding order is terminated
                pursuant to 8 CFR 208.24 or Sec. 1208.24 or deferral is terminated
                pursuant to 8 CFR 208.17 or Sec. 1208.17(d) or (e).
                0
                31. Amend Sec. 1208.30 by revising the section heading and paragraphs
                (a), (e), and (g)(2) to read as follows:
                Sec. 1208.30 Credible fear of persecution or torture 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.
                 (a) Jurisdiction. The provisions of this subpart apply to aliens
                subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
                section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make
                the determinations described in this subpart. Except as otherwise
                provided in this subpart, paragraphs (b) through (g) of this section
                are the exclusive procedures applicable to stowaways and applicants for
                admission who are found inadmissible pursuant to section 212(a)(6)(C)
                or 212(a)(7) of the Act and who receive fear interviews,
                determinations, and reviews under section 235(b)(1)(B) of the Act.
                Prior to January 1, 2030, an alien physically present in or arriving in
                the Commonwealth of the Northern Mariana Islands is ineligible to apply
                for asylum and may only establish eligibility for withholding of
                removal pursuant to section 241(b)(3) of the Act or withholding or
                deferral of removal under the regulations in Sec. Sec. 1208.16(c)
                through (f), 1208.17, and 1208.18 issued pursuant to the Convention
                Against Torture's implementing legislation.
                * * * * *
                 (e) Determination. For the standards and procedures for asylum
                officers in conducting credible fear interviews and hearings, and in
                making positive and negative credible fear determinations, see 8 CFR
                208.30. The immigration judges will review such determinations as
                provided in paragraph (g) of this section and 8 CFR 1003.42 and
                1003.48.
                * * * * *
                 (g) * * *
                 (2) Review by immigration judge of a negative credible fear
                finding. (i) The asylum officer's negative decision regarding credible
                fear shall be subject to review by an immigration judge upon the
                applicant's request, or upon the applicant's refusal either to request
                or to decline the review after being given such opportunity, in
                accordance with section 235(b)(1)(B)(iii)(III) of the Act. The
                immigration judge shall not have the authority to remand the case to
                the asylum officer.
                 (ii) The record of the negative credible fear determination,
                including copies of the Form I-863, the asylum officer's notes, the
                summary of the material facts, and other materials upon which the
                determination was based shall be provided to the immigration judge with
                the negative determination.
                 (iii) A credible fear hearing shall be closed to the public unless
                the alien states for the record or submits a written statement that the
                alien is waiving that requirement; in that event the hearing shall be
                open to the public, subject to the immigration judge's discretion as
                provided in 8 CFR 1003.27.
                 (iv) Upon review of the asylum officer's negative credible fear
                determination:
                 (A) If the immigration judge concurs with the determination of the
                asylum officer that the alien does not have a credible fear of
                persecution or torture, the case shall be returned to DHS for removal
                of the alien. The immigration judge's decision is final and may not be
                appealed.
                 (B) If the immigration judge finds that the alien, other than an
                alien stowaway, possesses a credible fear of persecution or torture,
                the immigration judge shall vacate the Notice and Order of Expedited
                Removal and refer the case back to DHS for further proceedings
                consistent with Sec. 1208.2(a)(1)(ii). Alternatively, DHS may commence
                removal proceedings under section 240 of the Act, during which time the
                alien may file an application for asylum and withholding of removal in
                accordance with Sec. 1208.4(b)(3)(i).
                 (C) If the immigration judge finds that an alien stowaway possesses
                a credible fear of persecution or torture, the alien shall be allowed
                to file an application for asylum and withholding of removal before the
                immigration judge in accordance with Sec. 1208.4(b)(3)(iii). The
                immigration judge shall decide the application as provided in that
                section. Such decision may be appealed by either the stowaway or DHS to
                the Board of Immigration Appeals. If a denial of the application for
                asylum and for withholding of removal becomes final, the alien shall be
                removed from the United States in accordance with section 235(a)(2) of
                the Act. If an approval of the application for asylum or for
                withholding of removal becomes final, DHS shall terminate removal
                proceedings under section 235(a)(2) of the Act.
                PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
                0
                32. The authority citation for part 1235 continues to read as follows:
                 Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
                to E.O. 13323, 69 FR
                [[Page 46950]]
                241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225, 1226, 1228, 1365a
                note, 1379, 1731-32; Title VII of Pub. L. 110-229; 8 U.S.C. 1185
                note (section 7209 of Pub. L. 108-458); Public Law 115-218.
                0
                33. Amend Sec. 1235.6 by:
                0
                a. Revising paragraph (a)(2)(i);
                0
                b. Removing the period at the end of paragraph (a)(2)(ii) and adding
                ``; or'' in its place; and
                0
                c. Revising paragraph (a)(2)(iii).
                 The revisions read as follows:
                Sec. 1235.6 Referral to immigration judge.
                 (a) * * *
                 (2) * * *
                 (i) If an asylum officer determines that the alien does not have a
                credible fear of persecution or torture, and the alien requests a
                review of that determination by an immigration judge;
                * * * * *
                 (iii) If an immigration officer refers an applicant in accordance
                with the provisions of 8 CFR 208.2(b) to an immigration judge.
                * * * * *
                Alejandro N. Mayorkas,
                Secretary of Homeland Security.
                 Dated: August 13, 2021.
                Merrick B. Garland,
                Attorney General.
                [FR Doc. 2021-17779 Filed 8-18-21; 8:45 am]
                BILLING CODE 9111-97-P
                

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