Security Bars and Processing
| Published date | 09 July 2020 |
| Citation | 85 FR 41201 |
| Record Number | 2020-14758 |
| Section | Proposed rules |
| Court | Executive Office For Immigration Review,Homeland Security Department |
Federal Register, Volume 85 Issue 132 (Thursday, July 9, 2020)
[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Proposed Rules]
[Pages 41201-41219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14758]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 /
Proposed Rules
[[Page 41201]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
RIN 1615-AC57
[Docket No: USCIS 2020-0013]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 4747-2020]
RIN 1125-AB08
Security Bars and Processing
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security (``DHS''); Executive Office for Immigration Review,
Department of Justice (``DOJ'').
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule would amend existing DHS and DOJ
(collectively, ``the Departments'') regulations to clarify that the
Departments may consider emergency public health concerns based on
communicable disease due to potential international threats from the
spread of pandemics when making a determination as to whether ``there
are reasonable grounds for regarding [an] alien as a danger to the
security of the United States'' and, thus, ineligible to be granted
asylum or the protection of withholding of removal in the United States
under Immigration and Nationality Act (``INA'') sections 208 and 241
and DHS and DOJ regulations. The proposed rule also would provide that
this application of the statutory bars to eligibility for asylum and
withholding of removal will be effectuated at the credible fear
screening stage for aliens in expedited removal proceedings in order to
streamline the protection review process and minimize the spread and
possible introduction into the United States of communicable and
widespread disease. The proposed rule further would allow DHS to
exercise its prosecutorial discretion regarding how to process
individuals subject to expedited removal who are determined to be
ineligible for asylum in the United States on certain grounds,
including being reasonably regarded as a danger to the security of the
United States. Finally, the proposed rule would modify the process for
evaluating the eligibility of aliens for deferral of removal who are
ineligible for withholding of removal as presenting a danger to the
security of the United States.
DATES: Comments must be submitted on or before August 10, 2020.
ADDRESSES: You may submit comments, identified by Docket Number USCIS
2020-0013 through the Federal eRulemaking Portal: http://www.regulations.gov. If you cannot submit your material using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION
CONTACT section of this document for alternate instructions.
FOR FURTHER INFORMATION CONTACT:
FOR USCIS: Andrew Davidson, Asylum Division Chief, Refugee, Asylum
and International Affairs Directorate, U.S. Citizenship and Immigration
Services, DHS; telephone 202-272-8377 (not a toll-free call).
For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
Executive Office for Immigration Review, telephone (703) 305-0289 (not
a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Departments also invite comments that relate to the potential
economic or federalism effects of this rule. To provide the most
assistance to the Departments, comments should reference a specific
portion of the rule; explain the reason for any recommended change; and
include data, information, or authority that supports the recommended
change. Comments received will be considered and addressed in the
process of drafting the final rule.
All comments submitted for this rulemaking should include the
agency name and Docket Number USCIS 2020-0013. Please note that all
comments received are considered part of the public record and made
available for public inspection at http://www.regulations.gov. Such
information includes personally identifiable information (such as a
person's name, address, or any other data that might personally
identify that individual) that the commenter voluntarily submits.
II. Executive Summary
The Departments seek to mitigate the risk of a deadly communicable
disease being brought to the United States, or being further spread
within the country. Thus, the Departments propose making four
fundamental and necessary reforms to the Nation's immigration system:
(1) Clarifying that the ``danger to the security of the United States''
bars to eligibility for asylum and withholding of removal apply in the
context of public health emergencies related to the possible threat of
introduction or further spread of international pandemics into the
United States; (2) making these bars applicable in ``credible fear''
screenings in the expedited removal process so that aliens subject to
the bars can be expeditiously removed; (3) streamlining screening for
deferral of removal eligibility in the expedited removal process to
similarly allow for the expeditious removal of aliens ineligible for
deferral; and (4) as to aliens determined to be ineligible for asylum
and withholding of removal as dangers to the security of the United
States during credible fear screenings but who nevertheless
affirmatively establish that torture in the prospective country of
removal is more likely than not, restoring DHS's discretion to either
place the aliens into removal proceedings under section 240 of the INA
(``240 proceedings''), 8 U.S.C. 1229a, or remove them to third
countries where they would not face persecution or torture--to allow
for the expeditious removal of aliens whose entry during a serious
public health emergency would represent a danger to the security of the
United States on public health grounds.
The amendments made by this proposed rule would apply to aliens who
enter the United States after the effective date, except that the
amendments would not apply to aliens who had before the date of the
[[Page 41202]]
applicable designation (1) affirmatively filed asylum and withholding
applications, or (2) indicated a fear of return in expedited removal
proceedings.
III. Background
A. Pandemics
The Centers for Disease Control and Prevention (``CDC'') has stated
that: ``A pandemic is a global outbreak of disease. Pandemics happen
when a new virus emerges to infect people and can spread between people
sustainably. Because there is little to no pre-existing immunity
against the new virus, it spreads worldwide.'' \1\ Of the twentieth
century's three pandemics involving influenza, the 1918 pandemic killed
up to 50 million persons around the world and up to 675,000 in the
United States; the 1957 pandemic killed approximately 2 million and
70,000, respectively; and the 1968 pandemic killed approximately 1
million and 34,000, respectively.\2\ The White House's Homeland
Security Council (``HSC'') projected in 2006 that ``a modern pandemic
could lead to the deaths of 200,000 to 2 million U.S. citizens'' \3\
and further explained that:
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\1\ CDC, Coronavirus Disease 2019 (COVID-19), Situation Summary
(``Situation Summary'') (updated April 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last
visited May 15, 2020).
\2\ Congressional Budget Office (``CBO''), A Potential Influenza
Pandemic: Possible Macroeconomic Effects and Policy Issues at 6-7
(December 8, 2005, revised July 27, 2006), https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/12-08-birdflu.pdf; see also Homeland Security Council, White House,
National Strategy for Pandemic Influenza at 1 (2005), https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-strategy-2005.pdf.
\3\ Homeland Security Council, White House, National Strategy
for Pandemic Influenza: Implementation Plan at 15 (2006), https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-implementation.pdf.
A pandemic . . . differ[s] from most natural or manmade
disasters in nearly every respect. Unlike events that are discretely
bounded in space or time, a pandemic will spread across the globe
over the course of months or over a year, possibly in waves, and
will affect communities of all sizes and compositions. The impact of
a severe pandemic may be more comparable to that of a widespread
economic crisis than to a hurricane, earthquake, or act of
terrorism. It may . . . overwhelm the health and medical
infrastructure of cities and have secondary and tertiary impacts on
the stability of institutions and the economy. These consequences
are impossible to predict before a pandemic emerges because the
biological characteristics of the virus and the impact of our
interventions cannot be known in advance.\4\
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\4\ Id. at 27.
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The HSC further warned that:
The economic and societal disruption of [an influenza] . . .
pandemic could be significant. Absenteeism across multiple sectors
related to personal illness, illness in family members, fear of
contagion, or public health measures to limit contact with others
could threaten the functioning of critical infrastructure, the
movement of goods and services, and operation of institutions such
as schools and universities. A pandemic would thus have significant
implications for the economy, national security, and the basic
functioning of society.\5\
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\5\ Id. at 1.
Then-Secretary of Homeland Security Michael Chertoff similarly
stated in 2006 that ``[a] severe pandemic . . . may affect the lives of
millions of Americans, cause significant numbers of illnesses and
fatalities, and substantially disrupt our economic and social
stability.'' \6\ In addition, components of the U.S. military have
indicated that the global spread of pandemics can impact military
readiness, thus posing a direct threat to U.S. national security. See
Diane DiEuliis & Laura Junor, Ready or Not: Regaining Military
Readiness During COVID19, Strategic Insights, U.S. Army Europe (Apr.
10, 2020), https://www.eur.army.mil/COVID-19/COVID19Archive/Article/2145444/ready-or-not-regaining-military-readiness-during-COVID19/
(discussing the spread within the military of twentieth-century
pandemics and consequences of the spread this year of COVID-19). For
example, the military noted that the risk of further spread of COVID-19
this year has led to the cancellation or reduction of various large-
scale military exercises and a 60-day stop-movement order. See id.
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\6\ DHS, Pandemic Influenza: Preparedness, Response, and
Recovery: Guide for Critical Infrastructure and Key Resources,
Introduction at 1 (2006) (Michael Chertoff, Secretary of Homeland
Security), https://www.dhs.gov/sites/default/files/publications/cikrpandemicinfluenzaguide.pdf.
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B. COVID-19
Fears regarding the effects of a catastrophic global pandemic have
unfortunately been realized in the emergency of COVID-19, a
communicable disease caused by a novel (new) coronavirus, SARS-CoV-2,
that was first identified as the cause of an outbreak of respiratory
illness in Wuhan, Hubei Province, in the People's Republic of China
(``PRC'').\7\ COVID-19 spreads easily and sustainably within
communities, primarily by person-to-person contact through respiratory
droplets; it may also transfer through contact with surfaces or objects
contaminated with these droplets when people touch such surfaces and
then touch their own mouths, noses, or, possibly, their eyes.\8\ There
is also evidence of pre-symptomatic and asymptomatic transmission, in
which an individual infected with COVID-19 is capable of spreading the
virus to others before, or without ever, exhibiting symptoms.\9\ COVID-
19's ease of transmission presents a risk of a surge in
hospitalizations, which has been identified as a likely contributing
factor to COVID-19's high mortality rate in countries such as Italy and
the PRC.\10\
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\7\ CDC, Situation Summary (updated June 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (last
visited June 22, 2020).
\8\ CDC, Interim Infection Prevention and Control
Recommendations for Patients with Suspected or Confirmed Coronavirus
Disease 2019 (COVID-19) in Healthcare Settings (updated May 18,
2020), https://www.cdc.gov/coronavirus/2019-ncov/infection-control/control-recommendations.html (last visited June 8, 2020).
\9\ CDC, Interim Clinical Guidance for Management of Patients
with Confirmed Coronavirus Disease (COVID-19) (updated June 2,
2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 8, 2020).
\10\ Ariana Eunjung Cha, Spiking U.S. Coronavirus Cases Could
Force Rationing Decisions Similar to Those Made in Italy, China,
Wash. Post (Mar. 15, 2020), https://www.washingtonpost.com/health/2020/03/15/coronavirus-rationing-us/; see also CDC, Healthcare
Facilities: Preparing for Community, https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-hcf.html (last visited May 15,
2020).
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Symptoms of COVID-19 include fever, cough, and shortness of breath,
and typically appear 2 to 14 days after exposure.\11\ Severe
manifestations of the disease have included acute pneumonia, acute
respiratory distress syndrome, septic shock, and multi-organ
failure.\12\ As of March 3, 2020, approximately 3.4 percent of COVID-19
cases reported around the world had resulted in death.\13\ The
mortality rate is higher among older adults and those with compromised
immune systems.\14\ During the height of the spread of COVID-19 within
the United States and internationally, there were significant numbers
of deaths and the rates of infection increased rapidly, indicating
[[Page 41203]]
the critical need to reduce the risk of further spread by limiting and
restricting admission and relief to aliens who may be carrying the
disease and could pose further risk to the U.S. population. As in many
other countries that, during the spread of COVID-19, closed their
borders and restrained international travel, pandemic-related risks
raise security threats for the United States.\15\
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\11\ CDC, Coronavirus Disease 2019 (COVID-19), Symptoms of
Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited May 15, 2020).
\12\ CDC, Interim Clinical Guidance for Management of Patients
with Confirmed Coronavirus Disease (COVID-19) (updated June 2,
2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 8, 2020).
\13\ World Health Organization Director-General, Opening Remarks
at the Media Briefing on COVID-19 (Mar. 3, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-COVID-19---3-march-2020.
\14\ CDC, Interim Clinical Guidance for Management of Patients
with Confirmed Coronavirus Disease (COVID-19) (updated June 2,
2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last visited June 8, 2020).
\15\ See, e.g., WHO, Coronavirus disease 2019 (COVID-19)
Situation Report--65 (Mar. 25, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200325-sitrep-65-COVID-19.pdf?sfvrsn=2b74edd8_2 (confirming 413,467 cases and 18,433
deaths globally as of March 25, 2020 and documenting the growth in
the global epidemic curve); CDC, Coronavirus Disease 2019 (COVID-
19): Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (providing the total number of domestic
cases every day starting on January 22, 2020 and listing 1,551,095
cases and 93,061 deaths domestically as of May 21, 2020) (last
visited May 21, 2020).).
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On January 31, 2020, the Secretary of the U.S. Department of Health
and Human Services (``HHS'') declared COVID-19 to be a public health
emergency under the Public Health Service Act (``PHSA'').\16\ On March
13, 2020, the President issued a proclamation declaring a national
emergency concerning COVID-19.\17\ Likewise, all U.S. States,
territories, and the District of Columbia have declared a state of
emergency in response to the growing spread of COVID-19.\18\
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\16\ Determination of Public Health Emergency, 85 FR 7316 (Feb.
7, 2020).
\17\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Novel Coronavirus Disease (COVID-19)
Outbreak, 85 FR 15337 (Mar. 18, 2020).
\18\ National Governors Association (``NGA''), Coronavirus: What
You Need to Know, https://www.nga.org/coronavirus (state action
tracking chart) (last visited May 21, 2020).
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As of May 2020, the President had suspended the entry of most
travelers from the PRC (excluding Hong Kong and Macau), Iran, the
Schengen Area of Europe,\19\ the United Kingdom, and the Republic of
Ireland, due to COVID-19.\20\ In mid-March, the CDC issued Level 3
Travel Health Notices recommending that travelers avoid all
nonessential travel to the PRC (excluding Hong Kong and Macau), Iran,
South Korea, and most of Europe.\21\ The U.S. Department of State
(``DOS'') then issued a global Level 4 Do Not Travel Advisory advising
travelers to avoid all international travel due to the global impact of
COVID-19.\22\ In two joint statements issued on March 20, 2020, the
United States, along with Canada and Mexico, announced a temporary
restriction on all non-essential travel across the nations' shared
borders.\23\ And during the course of the pandemic, the Federal
Government announced guidelines stating that when outside their homes,
persons should maintain six feet of distance from others, not gather in
groups, stay out of crowded places, and avoid mass gatherings.\24\ All
but seven states issued stay-at-home orders or similar guidance for
various time periods during the pandemic.\25\
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\19\ For purposes of this proposed rule, the Schengen Area
comprises 26 European states: Austria, Belgium, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta,
Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain,
Sweden, and Switzerland.
\20\ Proclamation 9984 of Jan. 31, 2020, Suspension of Entry as
Immigrants and Non-Immigrants of Persons Who Pose a Risk of
Transmitting 2019 Novel Coronavirus and Other Appropriate Measures
to Address This Risk, 85 FR 6709 (Feb. 5, 2020); Proclamation 9992
of Feb. 29, 2020, Suspension of Entry as Immigrants and Non-
Immigrants of Certain Additional Persons Who Pose a Risk of
Transmitting 2019 Novel Coronavirus, 85 FR 12855 (Mar. 4, 2020);
Proclamation 9993 of Mar. 11, 2020, Suspension of Entry as
Immigrants and Non-Immigrants of Certain Additional Persons Who Pose
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 15045 (Mar. 16,
2020); Proclamation 9996 of Mar. 14, 2020, Suspension of Entry as
Immigrants and Non-Immigrants of Certain Additional Persons Who Pose
a Risk of Transmitting 2019 Novel Coronavirus, 85 FR 15341 (Mar. 18,
2020).
\21\ CDC, Travelers' Health, Global COVID--19 Pandemic Notice,
Warning--Level 3, Avoid Nonessential Travel--Widespread Ongoing
Transmission (Mar. 27, 2020), https://wwwnc.cdc.gov/travel/notices/warning/coronavirus-europe.
\22\ DOS, Bureau of Consular Affairs, Global Level 4 Health
Advisory--Do Not Travel (Mar. 31, 2020), https://travel.state.gov/content/travel/en/traveladvisories/ea/travel-advisory-alert-global-level-4-health-advisory-issue.html.
\23\ DHS, Joint Statement on US-Canada Joint Initiative:
Temporary Restriction of Travelers Crossing the US-Canada Land
Border for Non-Essential Purposes (Mar. 20, 2020), https://www.dhs.gov/news/2020/03/20/joint-statement-us-canada-joint-initiative-temporary-restriction-travelers-crossing and DHS, Joint
Statement on US-Mexico Joint Initiative to Combat the COVID-19
Pandemic (Mar. 20, 2020), https://www.dhs.gov/news/2020/03/20/joint-statement-us-mexico-joint-initiative-combat-COVID-19-pandemic.
\24\ CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last
visited May 21, 2020).
\25\ NGA, Coronavirus: What You Need to Know, https://www.nga.org/coronavirus (state action tracking chart) (last visited
May 21, 2020).
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C. The Threat of COVID-19 and Future Pandemics to the Security of the
United States
On March 20, 2020, the CDC Director exercised his authority under
section 362 of the PHSA, 42 U.S.C. 265,\26\ to prohibit the
introduction of certain persons into the United States from Canada and
Mexico whose entry at this time, due to the continued existence of
COVID-19 in countries or places from which such persons are traveling,
would create an increase in the serious danger of the introduction of
such disease into and through the United States (``CDC Order'').\27\
The Director further requested that DHS aid in the enforcement of the
order, which aid DHS is required to provide pursuant to section 365 of
the PHSA, 42 U.S.C. 268(b).
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\26\ The statute assigns this authority to the Surgeon General
of the Public Health Service. However, Reorganization Plan No. 3 of
1966 abolished the Office of the Surgeon General and transferred all
statutory powers and functions of the Surgeon General and other
officers of the Public Health Service and of all agencies of or in
the Public Health Service to the Secretary of Health, Education, and
Welfare, now the Secretary of Health and Human Services, 31 FR 8855,
80 Stat. 1610 (June 25, 1966); see also Public Law 96-88, 509(b), 93
Stat. 695 (codified at 20 U.S.C. 3508(b)). References in the PHSA to
the Surgeon General are to be read in light of the transfer of
statutory functions and re-designation. Although the Office of the
Surgeon General was re-established in 1987, the Secretary of HHS has
retained the authorities previously held by the Surgeon General.
\27\ See HHS, CDC, Order Suspending Introduction of Persons from
a Country Where a Communicable Disease Exists (``CDC Order''), 85 FR
17060 (Mar. 26, 2020) (publishing CDC Order with effective date of
March 20, 2020), https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf. The CDC
Order stated that:
This order is necessary to protect the public health from an
increase in the serious danger of the introduction of . . . COVID-19
. . . into the land POEs, and the Border Patrol stations between
POEs, at or near the United States borders with Canada and Mexico. .
. . This order is also necessary to protect the public health from
an increase in the serious danger of the introduction of COVID-19
into the interior of the country when certain persons are processed
through the same land POEs and Border Patrol stations and move into
the interior of the United States.
85 FR at 17061.
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According to the CDC Order, Mexico and Canada both had numerous
confirmed cases of COVID-19, and the entry of aliens traveling from
these countries currently continues to pose a risk of further
transmission to the United States, which otherwise has been making
progress within its borders to stem the further spread of the
pandemic.\28\ On March 30, 2020, the Government of Mexico declared a
national public health emergency and ordered the suspension of non-
essential public activity through April 30, 2020, and the total number
of confirmed cases and confirmed deaths in Mexico as of May 21, 2020,
exceeded 59,500, and 6,500, respectively.\29\ In addition, in
[[Page 41204]]
early May, the New York Times reported that:
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\28\ See HHS, CDC, Extension of Order Under Sections 362 and 365
of the Public Health Service Act; Order Suspending Introduction of
Certain Persons From Countries Where a Communicable Disease Exists,
85 FR 22424, 22425-26 (Apr. 22, 2020).
\29\ See Daniel Borunda, Coronavirus: Mexico Declares National
Public Health Emergency, Bans Nonessential Activity, El Paso Times
(Mar. 31, 2020), https://www.elpasotimes.com/story/news/health/2020/03/31/coronavirus-pandemic-mexico-declares-national-public-health-emergency/5093905002/; Subsecretar[iacute]a de Prevenci[oacute]n y
Promoci[oacute]n de la Salud, Secretar[iacute]a de Salud, Gobierno
de M[eacute]xico, Comunicado T[eacute]cnico Diario COVID-19
M[Eacute]XICO (reporting that there were 59,567 confirmed cases and
6,510 confirmed deaths in Mexico as of May 21, 2020) https://www.gob.mx/salud/documentos/coronavirus-COVID-19-comunicado-tecnico-diario-238449 (updates posted regularly, last visited May 21, 2020).
Mexico City officials have tabulated more than 2,500 deaths from
the virus and from serious respiratory illnesses that doctors
suspect were related to COVID-19 . . . Yet the federal government is
reporting about 700 in the area . . .
[E]xperts say Mexico has only a minimal sense of the real scale
of the epidemic because it is testing so few people.
Far fewer than one in 1,000 people in Mexico are tested for the
virus--by far the lowest of the dozens of nations in the
Organization for Economic Cooperation and Development, which average
about 23 tests for every 1,000 people.
More worrisome, they say, are the many deaths absent from the
data altogether, as suggested by the figures from Mexico City, where
the virus has struck hardest of all. Some people die from acute
respiratory illness and are cremated without ever getting tested,
officials say. Others are dying at home without being admitted to a
hospital--and are not even counted under Mexico City's
statistics.\30\
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\30\ Azam Ahmed, Hidden Toll: Mexico Ignores Wave of Coronavirus
Deaths in Capital, New York Times (May 8, 2020), https://www.nytimes.com/2020/05/08/world/americas/mexico-coronavirus-count.html?smid=em-share (reporting that, according to a Times
analysis, more than three times as many people may have died from
COVID-19 in Mexico City than the country's federal statistics show).
The existence of COVID-19 in Mexico presents a serious danger of
the further introduction of COVID-19 into the United States due to the
high level of migration across the United States border with Mexico.
The danger posed by cross-border COVID-19 transmission is not only from
Mexican nationals, but also from non-Mexicans seeking to cross the
U.S.-Mexico border at ports-of-entry (``POEs'') and those seeking to
enter the United States illegally between POEs. The CDC Order notes
that ``[m]edical experts believe that . . . spread of COVID-19 at
asylum camps and shelters along the U.S. border is inevitable.'' \31\
Of the approximately 34,000 inadmissible aliens that DHS has processed
to date in Fiscal Year 2020 at POEs along the U.S.-Mexico border and
the approximately 117,000 aliens that the United States Border Patrol
(``USBP'') has apprehended attempting to unlawfully enter the United
States between the POEs, almost 110,000 are Mexican nationals and more
than 15,000 are nationals of other countries who are now experiencing
sustained human-to-human transmission of COVID-19, including
approximately 1,500 Chinese nationals.\32\
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\31\ CDC Order, 85 FR at 17064; see also Rick Jervis, Migrants
Waiting at U.S.-Mexico Border at Risk of Coronavirus, Health Experts
Warn, USA Today (Mar. 17, 2020), https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hard-coronavirus-migrants-wait-mexico/5062446002/; Rafael Carranza, New World's
Largest Border Crossing, Tijuana Shelters Eye the New Coronavirus
with Worry, Arizona Republic (Mar. 14, 2020), https://www.azcentral.com/story/news/politics/immigration/2020/03/14/tijuana-migrant-shelters-coronavirus-COVID-19/5038134002/.
\32\ CDC Order, 85 FR at 117060.
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As set forth in the CDC Order, community transmission is occurring
throughout Canada, and the number of cases in the country continues to
increase.\33\ Through February of FY 2020, DHS processed 20,166
inadmissible aliens at POEs at the U.S.-Canadian border, and USBP
apprehended 1,185 inadmissible aliens attempting to unlawfully enter
the United States between POEs.\34\ These aliens included not only
Canadian nationals but also 1,062 Iranian nationals, 1,396 Chinese
nationals, and 1,326 nationals of Schengen Area countries.\35\
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\33\ Id.
\34\ Id.
\35\ Id.
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1. Danger to Border Security and Law Enforcement Personnel
Because of the continued prevalence of COVID-19 in both Mexico and
Canada, the CDC has determined that the entry of aliens crossing the
northern and southern borders into the United States (regardless of
their country of origin) would continue to present a serious danger of
introducing COVID-19 into POEs and Border Patrol Stations at or near
the Mexico and Canada land borders. Transmission of COVID-19 at
facilities under the jurisdiction of U.S. Customs and Border Protection
(``CBP'') could lead to the infection of aliens in CBP custody, as well
as infection of CBP officers, agents, and others who come into contact
with such aliens in custody.
CBP officers and agents come into regular, sustained contact with
aliens seeking to enter the United States between POEs, or whose entry
is otherwise contrary to law, who have no travel documents or medical
history. Aliens arriving from countries suffering the acute
circumstances of an international pandemic, whose entry presents the
risk of spreading infectious or highly contagious illnesses or diseases
of public health significance, pose a significant danger to other
aliens in congregate settings and to CBP operations. The longer CBP
must hold such aliens for processing prior to expedited removal, the
greater the danger to CBP personnel and other aliens in CBP custody.
Although CBP has policies and procedures in place to handle
communicable diseases, the unprecedented challenges posed by the COVID-
19 pandemic (and similar pandemics in the future) cannot reliably be
contained by those policies and procedures, and thus this or another
infectious or highly contagious illness or disease could cripple the
already-strained capacities at CBP's facilities. Such a pandemic could
lead to significant reductions in available personnel, which would lead
to severe vulnerabilities and gaps in securing the border.
Additionally, an outbreak of a highly communicable disease in a CBP
facility could result in CBP being forced to close that facility, which
would limit how CBP conducts operations or where CBP can detain aliens
whom it apprehends.
As a law enforcement agency, CBP is not equipped to provide medical
support to treat infectious or highly contagious illnesses or diseases
brought into CBP facilities.\36\ Of the 136 CBP facilities along the
land and coastal borders, only 46 facilities, all located on the
southern land border with Mexico, have contracted medical support on
location. Even that contracted medical support is not currently
designed to diagnose, treat, and manage certain infectious or highly
contagious illnesses or diseases--particularly novel diseases.
Moreover, many CBP facilities, particularly along the southern land
border, are located in remote locations distant from hospitals and
other medical care and supplies. In short, if an infectious or highly
contagious illness or disease were to be transmitted within a CBP
facility, CBP operations could face significant disruption.
---------------------------------------------------------------------------
\36\ CDC Order, 85 FR at 17060.
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After spending time in CBP custody, an alien may, depending on the
facts and circumstances, be transferred to ICE custody. In some ways,
the dangers to ICE operations posed by aliens who are at risk of
spreading infectious or highly contagious illnesses or diseases are
greater than those posed to CBP operations, due to the longer amount of
time aliens spend detained in ICE custody. ICE often detains aliens for
time periods ranging from several days to many weeks, including while
an alien's 240 proceeding is pending; the
[[Page 41205]]
average time an alien spends in ICE custody is approximately 55
days.\37\
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\37\ DHS, ICE Average Daily Population (ADP) and ICE Average
Length of Stay (ALOS)--FY2020 YTD (May 9, 2020), https://www.ice.gov/detention-management#tab2 (last visited May 15, 2020).
---------------------------------------------------------------------------
The length of an alien's stay in ICE custody after being
transferred to CBP is often tied directly to the time it takes to
adjudicate an alien's immigration claims in 240 proceedings. If an
asylum officer determines that an alien placed into expedited removal
has not shown that the alien has a credible fear of persecution, the
alien may still be determined to have a credible or reasonable fear of
persecution or a credible fear of torture after review by an
immigration judge (``IJ''), in which case the alien would be placed
into 240 proceedings for the adjudication of their claims for relief
and protection under the immigration laws, and may remain in ICE
custody while those claims are adjudicated. Many of these adjudications
require multiple hearings, which lengthen the time an alien may remain
in custody and in close contact with ICE personnel. Furthermore, once a
non-detained alien is placed into 240 proceedings, it can be months or
years before their cases are adjudicated, as immigration courts in
DOJ's Executive Office for Immigration Review have a backlog of more
than 1,000,000 pending cases, at least 517,000 of which include an
asylum application.
ICE expends significant resources to ensure the health and welfare
of all those detained in its custody.\38\ In the case of an infectious
disease outbreak, ICE has protocols in place to ensure the health and
welfare of the detained population and to halt the spread of disease.
But many of these protocols, such as keeping affected detainees in
single-cell rooms or cohorts, can impact the availability of detention
beds, and thus could impair ICE's ability to operate its facilities at
normal capacity.
---------------------------------------------------------------------------
\38\ ICE's estimated average adult bed cost per day for
detention is $124.13 for fiscal year 2020. See DHS, U.S. Immigration
and Customs Enforcement, Budget Overview--Fiscal Year 2021
Congressional Justification at 7, https://www.dhs.gov/sites/default/files/publications/u.s._immigration_and_customs_enforcement.pdf
(last visited June 8, 2020).
---------------------------------------------------------------------------
To protect its personnel, migrants, and the domestic population,
DHS must be able to mitigate the harmful effects of any infectious or
highly contagious illnesses or diseases. A unique challenge is posed by
diseases such as COVID-19 that have a high rate of transmission may
require intensive hospital treatment, are not currently preventable
through a vaccine, and are prevalent in countries from which aliens
seeking to enter the United States between POEs or otherwise contrary
to law. The dangers of such diseases are exacerbated if the Government
must provide lengthy process and review to aliens arriving from
countries where COVID-19 remains prevalent, as their entry would bring
them into sustained contact with DHS personnel and other aliens in DHS
facilities.
If aliens seeking to enter the United States without proper travel
documents or who are otherwise subject to travel restrictions arrive at
land POEs, or between the POEs, and become infected with COVID-19 while
in DHS custody, they would need to be transported to medical providers
for treatment, and many of these providers are in states with some of
the lowest numbers of hospital beds per 1,000 inhabitants in the United
States.\39\ Unless an alien is returned to Mexico during the pendency
of his or her proceedings pursuant to the Migrant Protection Protocols,
see INA 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), many, if not most, of
these aliens are released into American communities.
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\39\ Arizona has 1.9 hospital beds per 1,000 inhabitants;
California has 1.8; New Mexico has 1.8, and Texas has 2.3. Kaiser
Family Found., State Health Facts: Hospitals Per 1,000 Population by
Ownership Type (2018), https://www.kff.org/other/state-indicator/beds-by-ownership/?currentTimeframe=0&sortModel=%7B%22colId%
22:%22Total%22,%22sort%22:%22asc%22%7D. By contrast, the states with
the highest number of hospital beds per 1,000 inhabitants have
nearly double, or more than double, the number of beds per 1,000
inhabitants--such as South Dakota, at 4.8; North Dakota, at 4.3; and
Mississippi, at 4.0. Id.
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Finally, aliens who are at risk of spreading infectious or highly
contagious illnesses or diseases, and who therefore pose a danger to
DHS personnel and operations, also pose a danger to the safety and
health of other persons in the United States. As the CDC Order
concludes:
[T]here is a serious danger of the introduction of COVID-19 into
the POEs and Border Patrol stations at or nearby the United States
borders with Canada and Mexico, and the interior of the country as a
whole . . . . The faster a covered alien is returned . . . the lower
the risk the alien poses of introducing, transmitting, or spreading
COVID-19 into POEs, Border Patrol stations, other congregate
settings, and the interior.\40\
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\40\ CDC Order, 85 FR at 17067.
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2. The Potential Economic Devastation of a Pandemic
Pandemics also threaten the United States economy. DHS reported in
2006 that ``[c]onsumer and business spending fuel[s] the nation's
economic engine. Regardless of the available liquidity and supporting
financial processes, a dramatic and extended reduction in spending and
the corresponding cascading effects in the private sector [caused by a
pandemic] may cause an unprecedented national economic disruption.''
\41\ The Congressional Budget Office (``CBO'') was more measured,
finding that if the country were to experience a severe pandemic
similar to the 1918-1919 Spanish flu, ``real [gross domestic product]
would be about 4\1/4\ percent lower over the subsequent year than it
would have been had the pandemic not taken place. . . . comparable to
the effect of a typical business-cycle recession in the United States .
. . since World War II.'' \42\ However, the CBO did note that:
---------------------------------------------------------------------------
\41\ DHS, Pandemic Influenza: Preparedness, Response, and
Recovery: Guide for Critical Infrastructure and Key Resources, at 25
(2006), https://www.dhs.gov/sites/default/files/publications/cikrpandemicinfluenzaguide.pdf.
\42\ CBO, A Potential Influenza Pandemic: Possible Macroeconomic
Effects and Policy Issues at 1-2 (December 8, 2005, revised July 27,
2006), https://www.cbo.gov/sites/default/files/109th-congress-2005-2006/reports/12-08-birdflu.pdf.
[S]ome [factors] might suggest a worse outbreak than the one
that occurred in 1918. The world is now more densely populated, and
a larger proportion of the population is elderly or has compromised
immune systems (as a result of HIV). Moreover, there are
interconnections among countries and continents--faster air travel
and just-in-time inventory systems, for example--that suggest faster
spread of the disease and greater disruption if a pandemic was to
occur.\43\
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\43\ Id. at 9.
As of mid-spring 2020, the economic impact of the COVID-19 pandemic
was predicted to be more akin to the impact feared by Secretary
Chertoff than the impact predicted by the CBO. The International
Monetary Fund (``IMF'') predicted in April 2020 that ``[t]he output
loss associated with [the COVID-19] health emergency and related
containment measures likely dwarfs the losses that triggered the global
financial crisis. . . . It is very likely that this year the global
economy will experience its worst recession since the Great Depression,
surpassing that seen during the global financial crisis a decade ago.''
\44\
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\44\ IMF, World Economic Outlook: Chapter 1: The Great Lockdown
at v (April 2020) (Foreword by Gita Gopinath), available at https://www.imf.org/en/Publications/WEO/Issues/2020/04/14/weo-april-2020.
---------------------------------------------------------------------------
The IMF further predicted that the United States economy is likely
to contract by 5.9 percent in 2020.\45\ While projecting a partial
recovery in 2021 (with advanced economies forecast to
[[Page 41206]]
grow at 4.5 percent), it warned that there is ``considerable
uncertainty about the strength of the rebound. Much worse growth
outcomes are possible and maybe even likely. This would follow if the
pandemic and containment measures last longer . . . , tight financial
conditions persist, or if widespread scarring effects emerge due to
firm closures and extended unemployment.'' \46\
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\45\ Id. at x (Executive Summary), Table 1.1. The IMF notes that
``[i]n normal crises, policymakers try to encourage economic
activity by stimulating aggregate demand as quickly as possible.
This time, the crisis is to a large extent the consequence of needed
containment measures. This makes stimulating activity more
challenging and, at least for the most affected sectors,
undesirable.'' Id. at v (Foreword by Gita Gopinath).
\46\ Id. The IMF report goes on to find that:
The rebound in 2021 depends critically on the pandemic fading in
the second half of 2020, allowing containment efforts to be
gradually scaled back and restoring consumer and investor
confidence. . . . The projected recovery assumes that . . . policy
[responses] are effective in preventing widespread firm
bankruptcies, extended job losses, and system-wide financial
strains.
. . . .
. . . .
[R]isks to the outlook are on the downside. The pandemic could
prove more persistent than assumed. . . . Of course, if a therapy or
a vaccine is found earlier than expected . . . the rebound may occur
faster than anticipated.
. . . Strong containment efforts in place to slow the spread of
the virus may need to remain in force for longer than the first half
of the year. . . . Once containment efforts are lifted and people
start moving about more freely, the virus could again spread rapidly
from residual localized clusters. [P]laces that successfully bring
down domestic community spread could be vulnerable to renewed
infections from imported cases. In such instances, public health
measures will need to be ramped up again, leading to a longer
downturn. . . .
The recovery of the global economy could be weaker than expected
after the spread of the virus has slowed for a host of other
reasons. These include lingering uncertainty about contagion,
confidence failing to improve, and establishment closures and
structural shifts in firm and household behavior, leading to more
lasting supply chain disruptions and weakness in aggregate demand.
Scars left by reduced investment and bankruptcies may run more
extensively through the economy . . . as occurred, for example, in
previous deep downturns. . . . Depending on the duration, global
business confidence could be severely affected, leading to weaker
investment and growth than projected. . . .
Id., Chapter 1, at 5-9 (citations omitted), available at https://www.imf.org/en/Publications/WEO/Issues/2020/04/14/weo-april-2020.
---------------------------------------------------------------------------
The United States Congress, on a bipartisan basis, has shared these
concerns. Senate Majority Leader Mitch McConnell stated regarding the
COVID-19 pandemic and the need for economic relief legislation on the
scale of more than a trillion dollars, that:
Combating this disease has forced our country to put huge parts
of our national life on pause[,] triggered layoffs at a breathtaking
pace[ and] has forced our Nation onto something like a wartime
footing. . . . We ha[ve] to get direct . . . financial assistance to
the American people. We ha[ve] to get historic aid to small
businesses to keep paychecks flowing, stabilize key industries to
prevent mass layoffs, and, of course, flood more resources into the
frontline healthcare battle itself. . . . No economic policy could
fully end the hardship so long as the public health requires that we
put so much of our Nation's commerce on ice. This is . . . emergency
relief.\47\
---------------------------------------------------------------------------
\47\ 166 Cong. Rec. S2021-22 (Mar. 25, 2020).
Similarly, discussing the same emergency relief legislation, Senate
Minority Leader Charles Schumer stated that:
Our workers are without work. Our businesses cannot do business.
Our factories lie idle. The gears of the American economy have
ground to a halt. . . . It will be worth it to save millions of
small businesses and tens of millions of jobs. It will be worth it
to see that Americans who have lost their jobs through no fault of
their own will be able to pay their rent and mortgages and put food
on the table. . . . It will be worth it to save industries from the
brink of collapse in order to save the jobs of hundreds of thousands
of Americans in those industries.\48\
---------------------------------------------------------------------------
\48\ 166 Cong. Rec. S2059 (March 25, 2020).
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D. Current Law
1. Eligibility for Asylum, Statutory Withholding of Removal, and
Protection Under the Convention Against Torture Regulations
Asylum is a form of discretionary relief that, generally, keeps an
alien from being subject to removal and creates a path to lawful
permanent resident status and U.S. citizenship. See INA 208, 209(b), 8
U.S.C. 1158, 1159(b); 8 CFR 209.2. In order to apply for asylum, an
applicant must be ``physically present'' or ``arriv[ing]'' in the
United States, INA 208(a)(1), 8 U.S.C. 1158(a)(1). To obtain asylum,
the alien must demonstrate that he or she meets the definition of a
``refugee.'' INA 101(a)(42)(A), 208(b)(1)(A), 8 U.S.C. 1101(a)(42)(A),
1158(b)(1)(A). The alien must also not be subject to a bar to applying
for asylum or to eligibility for asylum. See INA 208(a)(2), (b)(2), 8
U.S.C. 1158(a)(2), (b)(2).
Aliens who are not eligible to apply for or receive a grant of
asylum, or who are denied asylum in an exercise of discretion, may
nonetheless qualify for protection from removal under other provisions
of the immigration laws. Under statutory withholding of removal, the
Secretary may not, subject to certain exceptions, remove an alien to a
country if he or the ``Attorney General decide[ ] that the alien's life
or freedom would be threatened in that country because of the alien's
race, religion, nationality, membership in a particular social group,
or political opinion.'' INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); see
also 8 CFR 208.16 and 1208.16(b)(2).
Article 3 of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (``CAT'') provides that
``[n]o State Party shall expel, return (`refouler') or extradite a
person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.''
\49\ While the United States is a signatory to the CAT, the treaty is
not self-executing, see Khan v. Holder, 584 F.3d 773, 783 (9th Cir.
2009); Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005). However, the
regulations authorized by the legislation implementing CAT, the Foreign
Affairs Reform and Restructuring Act (``FARRA''), Public Law 105-277,
div. G, subdiv. B, title XXII, sec. 2242(b), 112 Stat. 2681-822 (1998),
codified at U.S.C. 1231 note, provide that an alien who establishes
that he or she will more likely than not face torture in the proposed
country of removal qualifies for protection. See 8 CFR 208.16(c),
208.17, 1208.16(c), 1208.17 (``CAT regulations'').
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\49\ Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 3(1), December 10, 1984, S.
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 84.
---------------------------------------------------------------------------
Unlike asylum, statutory withholding of removal and protection
under the CAT regulations provide protection from removal only when an
alien has established that persecution or torture, respectively, is
more likely than not to occur if removed to that particular country.
Aliens can be removed to other countries as provided in INA 241(b), 8
U.S.C. 1231(b). As DOJ stated in the final rule implementing the U.S.-
Canada Safe Third Country Agreement:
[I]t is essential to keep in mind that, in order to be entitled
to [statutory withholding of removal or protection under the CAT
regulations], an alien must demonstrate that it is more likely than
not that he or she would be persecuted, or tortured, in the
particular removal country. That is, withholding or deferral of
removal relates only to the country as to which the alien has
established a likelihood of persecution or torture--the alien may
nonetheless be returned, consistent with CAT and section 241(b)(1)
and (b)(2) of the Act [INA], to other countries where he or she
would not face a likelihood of persecution or torture.
Asylum Claims Made by Aliens Arriving From Canada at Land Border
Ports-of-Entry, 69 FR 69490, 69492 (Nov. 29, 2004).
2. Application of Bars to Eligibility for Asylum and Withholding of
Removal
Through the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (``IIRIRA''), Public Law 104-208, 110 Stat. 3009, and the
Antiterrorism and Effective Death Penalty Act of 1996 (``AEDPA''),
Public Law 104-132, 110 Stat. 1214, Congress adopted six mandatory bars
to asylum eligibility, which largely tracked pre-existing asylum
regulations. These bars
[[Page 41207]]
prohibit granting asylum to aliens who (1) ``ordered, incited,
assisted, or otherwise participated'' in the persecution of others on
account of a protected ground; (2) were convicted of a ``particularly
serious crime''; (3) committed a ``serious nonpolitical crime outside
the United States'' before arriving in the United States; (4) are a
``danger to the security of the United States''; (5) are inadmissible
or removable under a set of specified grounds relating to terrorist
activity; or (6) were ``firmly resettled in another country prior to
arriving in the United States.'' IIRIRA sec. 604(a) (codified at INA
208(b)(2)(A)(i)-(vi), 8 U.S.C. 1158(b)(2)(A)(i)-(vi)).
Congress further provided the Attorney General and the Secretary
with the authority to ``establish additional limitations and
conditions, consistent with [section 208 of the INA], under which an
alien shall be ineligible for asylum.'' IIRIRA, sec. 604(a) (codified
at INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C)). The only statutory
limitations are that the additional bars to eligibility must be
established ``by regulation'' and must be ``consistent with'' the rest
of section 208. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As the Tenth
Circuit has recognized, ``the statute clearly empowers'' the Attorney
General and the Secretary to ``adopt[ ] further limitations'' on asylum
eligibility. R-S-C v. Sessions, 869 F.3d 1176, 1187 n.9 (10th Cir.
2017).
As to statutory withholding of removal, the INA provides that an
alien is ineligible who is deportable for participation in Nazi
persecution, genocide, or the commission of an act of torture or
extrajudicial killing, or who the Secretary or the Attorney General has
decided (1) ordered, incited, assisted, or otherwise participated in
the persecution of an individual because of the individual's race,
religion, nationality, membership in a particular social group, or
political opinion, (2) has been convicted by a final judgment of a
particularly serious crime and is therefore a danger to the community
of the United States, (3) there are serious reasons to believe has
committed a serious nonpolitical crime outside the United States before
arriving in the United States, or (4) there are reasonable grounds to
believe is a danger to the security of the United States. See INA
241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).
In FARRA, Congress directed that the CAT regulations exclude from
their protection those aliens subject to the withholding of removal
eligibility bars ``[t]o the maximum extent consistent with the
obligations of the United States under the Convention'' subject to
reservations provided by the U.S. Senate in its ratification
resolution. See FARRA sec. 2242(c), 8 U.S.C. 1231 note (c). Thus, an
alien determined to be ineligible for statutory withholding of removal
is also ineligible for withholding of removal under the CAT
regulations. See 8 CFR 208.16(d)(2), 1208.16(d)(2). However, such an
alien, if ordered removed and more likely than not to be tortured in
the proposed country of removal, is nonetheless eligible for deferral
of removal under the CAT regulations. See 8 CFR 208.17, 1208.17.
3. Expedited Removal
In IIRIRA, Congress granted the Federal Government the ability to
apply expedited removal procedures to aliens who arrive at a POE or who
have entered illegally and are encountered by an immigration officer
within parameters established by the Secretary of Homeland Security by
designation. See INA 235(b), 8 U.S.C. 1225(b); see also Designating
Aliens For Expedited Removal, 69 FR 48877, 48880 (Aug. 11, 2004). To be
subject to expedited removal, an alien must also be inadmissible under
section 212(a)(6)(C) or 212(a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or
1182(a)(7), meaning that the alien has either tried to procure
documentation through misrepresentation or lacks such documentation
altogether. Such aliens who are inadmissible under INA 212(a)(6)(C) or
212(a)(7) shall be ``removed from the United States without further
hearing or review unless the alien indicates either an intention to
apply for asylum . . . or a fear of persecution.'' INA 235(b)(1)(A)(i),
8 U.S.C. 1225(b)(1)(A)(i).
If an alien does indicate a fear of persecution, he or she is
referred for a credible fear interview by an asylum officer. See INA
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). During that interview, an
alien must demonstrate a credible fear, defined as a ``significant
possibility, taking into account the credibility of the statements made
by the alien in support of the alien's claim and such other facts as
are known to the officer, that the alien could establish eligibility
for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). If the
asylum officer determines that the alien lacks a credible fear, then,
following supervisory review, the alien shall be removed from the
United States without further review of the negative fear determination
absent the alien's specific request for an IJ's review. INA
235(b)(1)(B)(iii)(I), (III), (b)(1)(C), 242(a)(2)(A)(iii), (e)(5), 8
U.S.C. 1225(b)(1)(B)(iii)(I), (III), (b)(1)(C), 1252(a)(2)(A)(iii),
(e)(5).
If, however, the asylum officer or IJ determines that the alien has
a credible fear, then the alien, under current regulations, is placed
in 240 proceedings, for a full removal hearing before an IJ. See INA
235(b)(1)(B)(ii), (b)(2)(A), 242(a)(1), 8 U.S.C. 1225(b)(1)(B)(ii),
(b)(2)(A), 1252(a)(1); 8 CFR 208.30(e)(5), 1003.42,
1208.30(g)(2)(iv)(B).
Under current regulations, the bars to asylum and withholding of
removal are generally not applied during the credible fear process,
which leads to considerable inefficiencies for the United States
Government.\50\ Under the current regulations at 8 CFR 208.30(e)(5),
aliens who establish a credible fear of persecution or torture, despite
appearing to be subject to one or more of the mandatory bars, are
nonetheless generally placed in lengthy 240 proceedings.
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\50\ One bar to asylum eligibility currently is being applied at
the credible fear stage. On July 16, 2019, the Departments issued an
interim final rule providing that certain aliens described in 8 CFR
208.13(c)(4) or 1208.13(c)(4) who enter, attempt to enter, or arrive
in the United States across the southern land border on or after
such date, after transiting through at least one country outside the
alien's country of citizenship, nationality, or last lawful habitual
residence en route to the United States, will be found ineligible
for asylum (and, because they are subject to this bar, not be able
to establish a credible fear of persecution) unless they qualify for
certain exceptions. See Asylum Eligibility and Procedural
Modifications, 84 FR 33829 (July 16, 2019). On July 24, 2019, the
U.S. District Court for the Northern District of California enjoined
the Departments ``from taking any action continuing to implement the
Rule'' and ordered the Departments ``to return to the pre-Rule
practices for processing asylum applications.'' E. Bay Sanctuary
Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019). On
August 16, 2019, the United States Court of Appeals for the Ninth
Circuit issued a partial stay of the preliminary injunction so that
the injunction remained in force only in the Ninth Circuit. 934 F.3d
1026. On September 9, 2019, the district court then reinstated the
nationwide scope of the injunction. 391 F.Supp.3d 974. Two days
later, the Supreme Court stayed the district court's injunction. See
Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (Mem.) (2019).
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IV. Discussion of the Proposed Rule
This proposed rule is designed primarily to implement necessary
reforms to our Nation's immigration system so that the Departments may
better respond to the COVID-19 crisis and, importantly, may better
respond to, ameliorate, and even forestall future public health
emergencies. For similar reasons, HHS recently published an interim
final rule to ``implement a permanent regulatory structure regarding
the potential suspension of introduction of persons into the United
States in the event a serious danger of the introduction of
communicable
[[Page 41208]]
disease arises in the future.'' Control of Communicable Diseases;
Foreign Quarantine: Suspension of Introduction of Persons Into the
United States From Designated Foreign Countries or Places for Public
Health Purposes, 85 FR 16559, 16563 (Mar. 24, 2020) (interim final rule
with request for comments). As HHS has explained, ``[t]he COVID-19
pandemic highlights why CDC needs an efficient regulatory mechanism to
suspend the introduction of persons who would otherwise increase the
serious danger of the introduction of a communicable disease into the
United States. . . .'' Id. at 16562. HHS has also noted that beyond the
COVID-19 pandemic, there is always a risk of another emerging or re-
emerging communicable disease that may harm the public in the United
States. Such a risk includes pandemic influenza (as opposed to seasonal
influenza), which occurs when a novel, or new, influenza strain spreads
over a large geographic area and effects an exceptionally high
percentage of the population. In such cases, the virus strain is new,
there usually is no vaccine available, and humans do not typically have
immunity to the virus, often resulting in a more severe illness. The
severity and unpredictable nature of an influenza pandemic requires
public health systems to prepare constantly for the next occurrence.
And whenever a new strain of influenza appears, or a major change to a
preexisting virus occurs, individuals may have little or no immunity,
which can lead to a pandemic. It is difficult to predict the impact
that another emerging, or re-emerging communicable disease would have
on the United States public health system. Modern pandemics, spread
through international travel, can engulf the world in three months or
less, can last from 12 to 18 months, and are not considered one-time
events. See generally id. at 16562-63.
The Departments similarly seek to mitigate the risk of another
deadly communicable disease being brought to the United States, or
being further spread within the country, by the entry of aliens from
countries where the disease is prevalent. Thus, the Departments propose
making four fundamental and needed reforms to the immigration system:
(1) Clarifying that the ``danger to the security of the United States''
bars to eligibility for asylum and withholding of removal apply in the
context of public health emergencies, (2) applying these bars in
``credible fear'' screenings during the expedited removal process so
that aliens subject to the bars can be expeditiously removed, (3)
streamlining screening for deferral of removal eligibility in the
expedited removal process to similarly allow for the expeditious
removal of aliens ineligible for deferral, and (4) as to aliens who are
determined to be ineligible for asylum and withholding of removal
because they are deemed dangers to the security of the United States
during credible fear screenings but who nevertheless affirmatively
establish that torture in the prospective country of removal would be
more likely than not, restoring DHS's discretion to either place the
aliens in 240 proceedings or remove them to third countries where they
would not face persecution or torture--again, to allow for the
expeditious removal of aliens who represent a danger to the security of
the United States on public health grounds.
A. The ``Danger to the Security of the United States'' Bar to
Eligibility for Asylum and Withholding of Removal
Due to the significant dangers to the security of the United States
posed by COVID-19 and possible future pandemics, including the economic
toll, the Departments are proposing to clarify that they can
categorically bar from eligibility for asylum, statutory withholding of
removal and withholding of removal under the CAT regulations as dangers
to the security of the United States aliens who potentially risk
bringing in deadly infectious disease to, or facilitating its spread
within, the United States. This bar would reduce the danger to the
United States public, the security of our borders, and the national
economy, during the current COVID-19 public health emergency,\51\ as
well as any future health emergencies.
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\51\ Determination of Public Health Emergency, 85 FR 7316 (Feb.
7, 2020).
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Specifically, this rule would clarify that aliens whose entry poses
a significant public health danger to the United States may constitute
a ``danger to the security of the United States,'' and thus be
ineligible for asylum or withholding of removal protections in the
United States under INA 208 and 241, 8 U.S.C. 1158 and 1231, and 8 CFR
208.16 and 1208.16. Specifically, aliens whose entry would pose a risk
of further spreading infectious or highly contagious illnesses or
diseases, because of declared public health emergencies in the United
States or because of conditions in their country of origin or point of
embarkation to the United States, pose a significant danger to the
security of the United States.
The entry of these aliens during a public health emergency poses
unique risk for two primary reasons. First, the entry of these aliens
would present the risk of spreading an infectious disease to key DHS
personnel and facilities, particularly those related to CBP and ICE,
and this spread would greatly reduce DHS's ability to accomplish its
mission. The spread of an infectious disease into CBP facilities and to
CBP personnel could disrupt CBP operations to such an extent that it
significantly impacts CBP's critical border functions. CBP officers and
agents are not readily replaceable, in part because their missions
include complex immigration, customs, and national security functions
that require specialized training. Gaps in the USBP's ability to patrol
the border caused by personnel shortages and facility closures would
create severe safety and national security risks for the United States.
Further, CBP processes all cargo being imported into the United States,
and any substantial reduction in CBP staffing capacity at ports of
entry could have enormous consequences on trade and the economy.\52\
Without a full complement of officers at POEs, CBP's ability to process
and facilitate the entry of much of the cargo that arrives at these
installations every day could be impacted, even causing significant
delays and a corresponding impact on local, and the national,
economies.
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\52\ See CBP, Trade Statistics, https://www.cbp.gov/newsroom/stats/trade (last visited June 4, 2020) (showing more than $2.6
trillion in imported goods on a yearly basis for fiscal years 2018
and 2019, and significant imports for goods such as aluminum and
steel); see also CBP, Trade and Travel Fiscal Year 2019 Report (Jan.
30, 2020), https://www.cbp.gov/document/annual-report/cbp-trade-and-travel-fiscal-year-2019-report (providing a detailed analysis of
trade facilitation by CBP).
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More generally, the entry of such aliens during a public health
emergency may pose a danger to the health and safety of other aliens
detained in DHS custody and all other individuals with whom such aliens
come into contact, posing an escalating danger the longer they remain
in DHS custody as their claims for asylum or withholding are
adjudicated. Such aliens also pose a danger to local communities and
medical facilities if they are released into the United States pending
adjudication of their claims, or if they receive protection or other
relief. By reducing the required processing time for aliens whom the
Departments determine pose a danger to the United States, this rule
could significantly reduce the likelihood that an infectious or highly
contagious illness or disease would be transmitted to other persons in
the United States.
[[Page 41209]]
Second, as discussed, pandemics such as COVID-19 can inflict
catastrophic damage to America's, and the world's, economy and thus, to
the security of the United States. To the extent that such damage may
have its origin with or be exacerbated by infected aliens seeking to
enter the United States illegally or without proper documents, or
seeking to apply for asylum or withholding of removal, the entry and
presence of potentially infected aliens can rise to the level of a
threat to the security of the United States.
While the INA provides that ``an alien who is described [as
deportable on terrorism-related grounds] shall be considered to be an
alien with respect to whom there are reasonable grounds for regarding
as a danger to the security of the United States,'' INA 241(b)(3)(B), 8
U.S.C. 1231(b)(3)(B), the scope of the term extends well beyond
terrorism considerations, and ``national defense'' considerations as
well. The Attorney General has previously determined that ``danger to
the security of the United States'' in the context of the bar to
eligibility for withholding of removal encompasses considerations of
defense, foreign relations, and the economy, writing that:
The INA defines ``national security'' [in the context of the
designation process for foreign terrorist organizations] to mean
``the national defense, foreign relations, or economic interests of
the United States.'' Section 219(c)(2) of the Act, 8 U.S.C.
1189(c)(2) (2000). Read as a whole, therefore, the phrase ``danger
to the security of the United States'' is best understood to mean a
risk to the Nation's defense, foreign relations, or economic
interests.
Matter of A-H-, 23 I&N Dec. 774, 788 (AG 2005).
The INA's definition of ``national security'' referred to by the
Attorney General provides additional evidence that the term--along with
the term ``danger to the security of the United States--should be read
to encompass concerns beyond those concerning national defense and
terrorism. The definition was enacted in 1996 as section 401(a) of
title IV of AEDPA and was added as enacted by the House-Senate
Conference Committee. See H.R. Rep. No. 104-518, at 38 (1996) (Conf.
Rep.). The proposed legislation as originally passed by the Senate
defined ``national security'' to mean ``the national defense and
foreign relations of the United States.'' 142 Cong. Rec. H2268-03, at
H2276 (Mar. 14, 1996) (S. 735, title VI, 401(a)). That version of the
bill may have considered economic concerns as separate from national
security concerns. For example, it provided that in designating a
foreign terrorist organization, the Secretary of State would have had
to find that ``the organization's terrorism activities threaten the
security of United States citizens, national security, foreign policy,
or the economy of the United States''--listing ``national security''
and ``the economy'' as two independent considerations. Section 401(a)
of title IV of S. 735 (as passed the Senate on June 7, 1995), 141 Cong.
Rec. S7864 (July 7, 1995). In addition, the section included a finding
that also differentiated between national security concerns and those
related to foreign policy and the economy. Congress found that:
(B) [T]he Nation's security interests are gravely affected by
the terrorist attacks carried out overseas against United States
Government facilities and officials, and against American citizens
present in foreign countries;
(C) United States foreign policy and economic interests are
profoundly affected by terrorist acts overseas directed against
foreign governments and their people . . . .
Id. But we do not find such a distinction to be informative. First,
Congress decided to merge economic considerations into the definition
of national security in the Conference Report. Therefore, to the extent
one accepts legislative history as a relevant consideration when
interpreting the meaning of statutory terms, the change in phrasing in
the Conference Report could suggest a conscious decision that economic
considerations are subsumed within a general reference to national
security. Second, the explicit reference to economic considerations in
the earlier draft of the legislation, when discussing the threats posed
by terroristic activities, also implies a connection between national
security and economics concerns--suggesting that considerations related
to security in this context are quite broad.
Finally, the definition in AEDPA operated in the context of the
designation of foreign terrorist organizations. When national security
is considered in a much broader context beyond the risk of terrorism,
as is the case in this proposed rule, it makes even greater sense to
encompass within it economic concerns and public health concerns of
such magnitude that they become economic concerns. A pandemic can cause
immense economic damage. Thus, the entry of aliens who may further
introduce infectious diseases to our country or facilitate the spread
of such disease within the interior of the country could pose a danger
to U.S. security well within the scope of the statutory bars to
eligibility for asylum and withholding of removal. The entry of such
aliens could also pose a danger to national security by threatening
DHS's ability to secure our border and facilitate lawful trade and
commerce. To determine that an alien represents a danger to the
security of the United States, the Departments generally do not have to
quantify the extent of that danger. The Attorney General has ruled
that:
In contrast to other parallel provisions in former section
243(h)(2) [INA's withholding of removal provision before 1996]--
which provide, for example, that a crime be ``serious'' or
``particularly serious'' to constitute ineligibility for withholding
of deportation . . . the statute's reference to ``danger'' is not
qualified. Any level of danger to national security is deemed
unacceptable; it need not be a ``serious,'' ``significant,'' or
``grave'' danger. That understanding is supported by the
Government's use, in other contexts, of gradations of danger to
national security. For example, for purposes of determining
information classification levels, Executive Order No. 12958
categorizes the relative ``damage'' to national security caused by
disclosure of certain types of information. . . . in descending
order of severity as ``grave damage,'' ``serious damage,'' and
``damage''. . . . As these terms have common parlance in assessing
risks to national security, Congress's decision not to qualify the
word ``danger'' in former section 243(h)(2)(D) makes clear that
Congress intended that any nontrivial level of danger to national
security is sufficient to trigger this statutory bar to withholding
of deportation.
Matter of A-H-, 23 I&N Dec. at 788. The Attorney General also made
clear that this ``nontrivial degree of risk'' standard is satisfied
where there is a reasonable belief that an alien poses a danger. Id.
In Yusupov v. Attorney General, 518 F.3d 185, 204 (3rd Cir. 2008)
(as amended Mar. 27, 2008), the Third Circuit determined that the
Attorney General's understanding that the eligibility bar ``applied to
any `nontrivial level of danger' or `nontrivial degree of risk' to U.S.
security'' was a reasonable interpretation of the INA, and the court
deferred to the Attorney General in upholding that statutory
interpretation. The court explained that the eligibility bar ``does not
easily accord acceptable gradations, as almost any `danger' to U.S.
security is serious.'' Id. It concluded that ``Congress did not
announce a clear intent that the danger to U.S. security be `serious'
because such a modifier likely would be redundant. . . . [I]t would be
illogical for us to hold that Congress clearly intended for an alien to
be non-removable if he poses only a moderate danger to national
security.'' \53\ Id.
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\53\ The alien must actually pose this level of danger. ``The
bottom line in Yusupov, which we adopt, is that . . . the alien must
`actually pose a danger' to United States security . . . . [T]he
appropriate [standard is the] affirmative `is' language rather than
the incorrect `may pose' standard.'' Malkandi v. Holder, 576 F.3d
906, 914 (9th Cir. 2009); see also Yusupov, 518 F.3d at 201. The
danger posed by the entry of aliens during a pandemic is unique. In
many cases it is not possible to know whether any particular
individual is infected at the time of apprehension. Many individuals
who are actually infected may be asymptomatic, reliable testing may
not be available, and, even where available, the time frame required
to obtain test results may both be operationally unfeasible and
expose DHS officers, other aliens, and domestic communities to
possible infection while results are pending. Nonetheless, an
individual's membership within a class of aliens arriving from a
country in which the spread of a pandemic poses serious danger
itself presents a serious security risk.
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[[Page 41210]]
In Matter of A-H-, the Attorney General also ruled that
``reasonable'' in the context of the exception for asylum eligibility
at 8 U.S.C. 1158(b)(2)(A)(iv)--which requires a determination that
``there are reasonable grounds for regarding the alien as a danger to
the United States''-- ``implied the use of a `reasonable person'
standard'' that was ``substantially less stringent than preponderance
of the evidence,'' and instead akin to ``probable cause.'' 23 I&N Dec.
at 788-89 (emphasis added). The standard ``is satisfied if there is
information that would permit a reasonable person to believe that the
alien may pose a danger to the national security.'' Id. at 789
(citation omitted). Further, ``[t]he information relied on to support
the . . . determination need not meet standards for admissibility of
evidence in court proceedings . . . . `It [is enough that the
information relied upon by the Government [i]s not `intrinsically
suspect.' '' Id. at 789-90 (quoting Adams v. Baker, 909 F.2d 643, 649
(1st Cir. 1990)). These standards that have been previously applied to
interpretations of the security eligibility bar suggest that
application of the bar need not be limited to instances where each
individual alien is known to be carrying a particular disease. Rather,
it is enough that the presence of disease in the countries through
which the alien has traveled to reach the United States makes it
reasonable to believe that the entry of aliens from that country
presents a serious danger of introduction of the disease into the
United States.
B. Application of the Danger to the Security of the United States Bars
to Eligibility for Asylum and Withholding of Removal in the Expedited
Removal Process
The Departments' current regulations under title 8 of the United
States Code preclude DHS from efficiently and expeditiously removing
aliens from the United States who may pose significant public health
risks or who present other dangers to the security of the United
States. Beyond creating health risks that may endanger the United
States, the COVID-19 crisis highlights the fact that the existing
expedited removal procedures require the Departments to engage in
redundant and inefficient screening mechanisms to remove aliens who
would not be able to establish eligibility for asylum and withholding
of removal in the first place.
To address these public health concerns, especially in light of the
current COVID-19 public health emergency, the Departments are proposing
regulatory changes to expedite the processing of certain aliens
amendable to expedited removal, including those who potentially have
deadly contagious diseases. These changes are necessary because the
existing regulatory structure is inadequate to protect the security of
the United States and must be updated to allow for the efficient and
expeditious removal of aliens subject to the bars to asylum and
withholding eligibility because they present a danger to the security
of the United States. These bars would be applied at the credible fear
screening stage for aliens in expedited removal proceedings, thereby
avoiding potentially lengthy periods of detention for aliens awaiting
the adjudication of their asylum and withholding claims and minimizing
the inefficient use of government resources.
Applying the ``danger to the security of the United States'' asylum
and withholding eligibility bars in the expedited removal process is
necessary to reduce health and safety dangers to DHS personnel and to
the general public. And permitting asylum officers to apply these bars
will ensure a more efficient and expeditious removal process for aliens
who will not be eligible to receive asylum or withholding at the
conclusion of 240 proceedings in immigration court.
It is unnecessary and inefficient to adjudicate claims for relief
or protection in 240 proceedings when it can be determined that an
alien is subject to a mandatory bar to eligibility for asylum or
statutory withholding, and is ineligible for deferral of removal, at
the credible fear screening stage. The existing rules provide aliens
additional adjudicatory procedures notwithstanding an eligibility bar
for asylum or withholding of removal, and those procedures place DHS
operations and personnel in danger. Accordingly, applying the danger to
the security of the United States bars to asylum and withholding of
removal at the credible fear stage would eliminate delays inherent in
the full expenditure of resources required by 240 proceedings, when
such expenditure is unnecessary and would serve no purpose due to the
threshold ineligibility of the alien to receive asylum due to a
statutory bar.
C. Streamlining Screening for Deferral of Removal in Expedited Removal
As previously discussed, Congress required the application of the
withholding of removal eligibility bars ``[t]o the maximum extent
consistent with the obligations of the United States under [CAT]'' to
aliens seeking protection under the CAT regulations. FARRA sec.
2242(c), 8 U.S.C. 1231 note (c). The sole purpose of CAT deferral is to
provide protection to such aliens barred from eligibility for
withholding of removal. The preamble to the 1999 CAT rule states that
``[d]eferral of removal will be granted . . . to an alien who is likely
to be tortured in the country of removal but who is barred from
withholding of removal[,]'' Regulations Concerning the Convention
Against Torture, 64 FR 8478, 8480 (Feb. 19, 1999), and the regulatory
text itself states that to be eligible for deferral an alien must be
``subject to the provisions for mandatory denial of withholding of
removal under Sec. 208.16(d)(2) or (d)(3).'' 8 CFR 208.17(a),
1208.17(a).
This rule proposes to further FARRA's command that the withholding
of removal eligibility bars apply to aliens seeking protection under
the CAT regulations ``[t]o the maximum extent consistent with the
obligations of the United States under [CAT]'' by requiring that such
aliens seeking such protection meet, at the credible fear stage, their
ultimate burden to demonstrate eligibility for deferral of removal
under the CAT regulations--i.e., that it is more likely than not that
they would be tortured in the country of removal. See 8 CFR
208.16(c)(2), 208.17(a). The proposed change will also contribute to
the streamlining of the expedited removal process.\54\ If the alien has
not affirmatively established during the credible fear process that the
alien is more likely than not to face torture in the country of
removal, the alien may be expeditiously removed. The alien would not
need to be placed in 240 proceedings, which often necessitate an alien
remaining in the United States for many years while such proceedings
are
[[Page 41211]]
pending. This proposed rule change thus will facilitate removal of
aliens subject to the danger to the security of the United States bars
as expeditiously as possible during times of pandemic, in order to
reduce physical interactions with DHS personnel, other aliens, and the
general public.
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\54\ Article 3 of CAT is silent on specific implementing
procedures, except to the extent that it states that ``for the
purpose of determining whether there are such [substantial] grounds
[for believing that a person would be tortured], the competent
authorities shall take into account all relevant considerations . .
. .'' CAT, art. 3(1).
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This screening standard for deferral of removal is consistent with
DOJ's longstanding rationale that ``aliens ineligible for asylum,'' who
could only be granted statutory withholding of removal or protection
under the CAT regulations, should be subject to a different screening
standard corresponding to the higher bar for actually obtaining these
forms of protection. See Regulations Concerning the Convention Against
Torture, 64 FR at 8485 (``Because the standard for showing entitlement
to these forms of protection (a probability of persecution or torture)
is significantly higher than the standard for asylum (a well-founded
fear of persecution), the screening standard adopted for initial
consideration of withholding and deferral requests in these contexts is
also higher.'').
D. Restoring Prosecutorial Discretion
The proposed rule would also amend the Departments' existing
regulations to enable DHS to exercise its statutorily authorized
discretion about how to process individuals subject to expedited
removal who are determined to be ineligible for asylum and withholding
of removal based on the danger to security, but who may be eligible for
deferral of removal. The proposed rule would provide DHS with the
option, to be exercised as a matter of prosecutorial discretion, to
either place such an alien into 240 proceedings or to remove the alien
to a country where the alien has not affirmatively established that it
is more likely than not that the alien's life or freedom would be
threatened on a protected ground, or that the alien would be tortured.
This discretion is important because it would give DHS flexibility to
quickly process aliens during national health emergencies during which
placing an alien into full 240 proceedings may pose a danger to the
health and safety of other aliens with whom the alien is detained, or
to DHS officials who come into close contact with the alien. It would
restore DHS's ability in the expedited removal process to remove such
aliens to third countries rather than having to place them in 240
proceedings.
This discretion is inherent in section 235 of the INA, 8 U.S.C.
1225. Current regulations instruct asylum officers and IJs to treat an
alien's request for asylum in expedited removal proceedings as a
request for statutory withholding of removal and withholding and
deferral or removal under the CAT regulations as well. See 8 CFR
208.13(c)(1), 208.30(e)(2)-(4), 1208.13(c)(1), 1208.16(a). However, the
INA neither mandates this, nor even references consideration of
statutory withholding or protection under the CAT regulations as a part
of the credible fear screening process. Indeed, the INA provides that
an alien enters that process only if he or she ``indicates either an
intention to apply for asylum . . . or a fear of persecution,'' INA
235(a)(2), 8 U.S.C. 1225(a)(2), in which case he or she is interviewed
by an asylum officer who determines whether he or she has a ``credible
fear of persecution,'' which is defined as ``a significant possibility
. . . that the alien could establish eligibility for asylum.'' INA
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Only if the alien
establishes such a possibility of eligibility for asylum (with no
mention of eligibility for withholding of removal) is he or she
entitled to ``further consideration of the application for asylum.''
INA 235(b)(1)(A)(i)-(ii), (B)(ii), (v), 8 U.S.C. 1225(b)(1)(A)(i)-(ii),
(B)(ii), (v). The Departments' current regulations generally effectuate
this ``further consideration'' through the placement of an alien in 240
proceedings.\55\ However, section 235 does not require (or even refer
to) ``further consideration'' of eligibility for withholding or
deferral of removal. While DHS will of course not remove an alien to a
country contrary to section 241(b)(3) of the INA, 8 U.S.C. 1241(b)(3),
or to FARRA and the CAT regulations, the immigration laws do not
prevent DHS from removing an alien who is ineligible for asylum to a
third country.
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\55\ The interim final rule establishing a bar to asylum
eligibility for certain aliens who enter, attempt to enter, or
arrive in the United States across the southern land border after
transiting through at least one country outside the alien's country
of citizenship, nationality, or last lawful habitual residence en
route to the United States provides that if an alien is determined
not to have a credible fear of persecution as a consequence of being
subject to such bar, the alien will nonetheless be placed in removal
proceedings before EOIR if the alien establishes a reasonable fear
of persecution or torture. In such an instance, the rule provides
that the scope of review is limited to a determination of whether
the alien is eligible for withholding or deferral of removal. See
Asylum Eligibility and Procedural Modifications, 84 FR 33829 (July
16, 2019).
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The Departments acknowledge that these procedures for processing
individuals in expedited removal proceedings who are subject to the
danger to national security bar differ from expedited removal
procedures set forth in the Notice of Proposed Rulemaking, ``Procedures
for Asylum and Withholding of Removal; Credible Fear and Reasonable
Fear Review.'' 85 FR 36264 (June 15, 2020). The Departments will
reconcile the procedures set forth in the two proposed rules at the
final rulemaking stage, and request comment regarding how to best
reconcile the procedures set forth in the proposed rules.
In sum, this rule not only would provide the Departments with
important tools for safeguarding America from COVID-19 (should the
disease still be a threat when a final rule is published), but it would
also clarify the availability of critical tools within the Departments'
statutory authority should another pandemic strike.
V. Detailed Discussion of the Proposed Regulatory Changes
A. Proposed 8 CFR 208.13(c)(10) and 1208.13(c)(10)
These paragraphs propose to clarify that the Departments may rely
on certain public health risks and considerations as reasonable grounds
for regarding an alien or a class of aliens to be a danger to the
security of the United States, and thus subject to a mandatory bar to
eligibility for asylum. Specifically, in determining whether an alien
or a class of aliens can reasonably be regarded as a danger to the
security of the United States under section 208(b)(2)(A)(iv) of the
Act, the Secretary and the Attorney General may determine whether the
alien exhibits symptoms consistent with being afflicted with any
contagious or infectious disease or has come into contact with such a
disease, or whether the alien or class of aliens is coming from a
country, or a political subdivision or region of a country, or has
embarked at a place, where such disease is prevalent or epidemic (or
had come from that country, subdivision, or region, or had embarked at
that place, during a period in which the disease was prevalent or
epidemic there), if:
The disease has triggered an ongoing declaration of a
public health emergency under Federal law, including under section 319
of the PHSA, 42 U.S.C. 247d, or section 564 of the Food, Drug, and
Cosmetic Act, 21 U.S.C. 360bbb-3, or
the Secretary and the Attorney General have, in
consultation with HHS, jointly
[cir] determined that because the disease is a communicable disease
of public health significance (in accordance with regulations
prescribed by the Secretary of Health and Human Services (currently at
42 CFR 34.2(b))) that is
[[Page 41212]]
prevalent or epidemic in another country or place, the physical
presence in the United States of an alien or a class of aliens who are
coming from such country or countries (or one or more political
subdivisions or regions thereof) or have embarked at that place or
places (or had come from that country or countries (or one or more
subdivisions or regions thereof) or embarked at that place or places
during a period in which the disease was prevalent or epidemic there),
would cause a danger to the public health in the United States, and
[cir] designated the foreign country or countries (or one or more
political subdivisions or regions thereof) or place or places and the
period of time or circumstances under which the Secretary and the
Attorney General jointly deem it necessary for the public health that
such alien or class of aliens who either are still within the number of
days equivalent to the longest known incubation and contagion period
for the disease or exhibit symptoms indicating they are afflicted with
the disease be regarded as a danger to the security of the United
States under section 208(b)(2)(A)(iv) of the Act, including any
relevant exceptions as appropriate.
The Departments solicit comment on the nature of the consultation
that the Secretary and the Attorney General should engage in with the
Secretary of Health and Human Services.
B. Proposed 8 CFR 208.16(d)(2) and 1208.16(d)(2)
The rule proposes to clarify that the Departments may similarly use
public health risks and considerations to determine if an alien or a
class of aliens can reasonably be regarded as a danger to the security
of the United States, and thus be subject to a mandatory bar to
eligibility for statutory withholding of removal and withholding of
removal under the CAT regulations, under the same standards they would
use regarding the ``danger to the security of the United States'' bar
to asylum eligibility.
The Departments solicit comment on the nature of the consultation
that the Secretary and the Attorney General should engage in with the
Secretary of Health and Human Services.
C. Proposed 8 CFR 208.16(f) and 1208.16(f)
The rule proposes to amend 8 CFR 208.16(f) and 1208.16(f), which
provide that nothing in those sections or Sec. 208.17 or Sec. 1208.17
would prevent the Service from removing an alien to a third country
other than the country to which removal has been withheld or deferred.
The rule would clarify that, after providing an alien with the
appropriate advisal and allowing the alien the opportunity to withdraw
his or her request for withholding or deferral of removal, if the alien
does not withdraw, DHS may remove an alien to a third country prior to
an adjudication of the alien's request for withholding or deferral of
removal if the alien has not affirmatively established that it is more
likely than not that the alien would be tortured in that country
(pursuant to the procedure set forth in 8 CFR 208.30(e)(5) for an alien
in expedited removal proceedings).
D. Proposed 8 CFR 1208.30(e) and (g)
The rule proposes to amend 8 CFR 1208.30(e) to make conforming
changes consistent with the amendment to 8 CFR 1208.13(c) concerning
the bar to eligibility for asylum based on there being reasonable
grounds for regarding an alien as a danger to the security of the
United States. The rule also proposes to amend 8 CFR 1208.30(g) to make
conforming changes consistent with the amendments to 8 CFR 208.30
regarding IJ review of determinations made by DHS, including the
treatment of aliens who are subject to the ``danger to the security of
the United States'' bar to asylum.
E. Proposed 8 CFR 208.30(e)(1), (3)-(4), (5)(i), (iii)
The rule would propose amending 8 CFR 208.30(e)(1), (3)-(4) to make
conforming changes consistent with proposed amendments to 8 CFR
208.30(e)(5)(i), (iii), regarding the treatment of aliens who are
subject to the ``danger to the security of the United States'' and
third-country-transit asylum bars.
Under the current version of 8 CFR 208.30(e)(5)(i), with certain
exceptions, if an alien is able to establish a credible fear of
persecution but appears to be subject to one or more of the mandatory
bars to applying for, or being granted, asylum contained in section
208(a)(2) and 208(b)(2) of the Act, or to withholding of removal
contained in section 241(b)(3)(B) of the Act, DHS shall nonetheless
place the alien in proceedings under section 240 of the Act for full
consideration of the alien's claim, unless the alien is 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 8 CFR
208.2(c)(3).
The rule proposes to amend Sec. 208.30(e)(5)(i) to remove the
requirement that DHS ``nonetheless place the alien in proceedings under
section 240 of the Act'' in the case of an alien ineligible for asylum
and withholding of removal pursuant to the ``danger to the security of
the United States'' bars but who nevertheless affirmatively establishes
that he or she is more likely than not to be tortured in the
prospective country of removal, and, consistent with DHS's statutory
authority, give the Secretary the option, in his or her unreviewable
discretion, to either place the alien in full 240 proceedings, or
remove the alien pursuant to expedited removal to a third country. This
rule change consequently would require asylum officers to make negative
credible fear of persecution determinations for aliens who are subject
to the mandatory bar to asylum eligibility based on danger to the
security of the United States.
If DHS were to nevertheless determine that an alien should be
placed in full 240 proceedings, its determination that the alien had
established that he or she is more likely than not to be tortured in
the prospective country of removal would not be dispositive of any
subsequent consideration of an application for protection under the CAT
in those proceedings, consistent with an IJ's general authority to
review DHS determinations de novo in immigration proceedings. Cf. 8 CFR
1003.42(d) (IJ reviews negative credible fear determinations de novo).
If DHS were to remove the alien to a third country, it would do so
consistent with section 241(b)(1)-(2) of the Act and 8 CFR 241.15.
The rule does not propose changing the credible fear standard for
asylum claims, although the regulation would expand the scope of the
credible fear inquiry. An alien who is subject to the ``danger to the
security of the United States'' bar to asylum eligibility would be
ineligible for asylum and thus would not be able to establish a
``significant possibility . . . [of] eligibility for asylum under
section 1158.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). That
alien would also be subject to the identical bar to withholding of
removal at INA 241(b)(3)(B)(iv), 8 U.S.C. 1231(b)(3)(B)(iv). See also 8
CFR 1208.16(d)(2) (incorporating the bar at 8 U.S.C. 1231(b)(3)(B)(iv)
for purposes of withholding of removal under the CAT). Consistent with
section 235(b)(1)(B)(iii)(III) of the INA, the alien could still obtain
review from an IJ regarding whether the asylum officer correctly
determined that the alien was subject to the bar. Further, consistent
with section 235(b)(1)(B) of the INA, if the IJ reversed the asylum
officer's determination, then the alien could assert the asylum claim
in 240 proceedings.
[[Page 41213]]
Aliens determined to be ineligible for asylum and withholding of
removal by virtue of being subject to the bars would have no remaining
viable claim unless an alien is able to affirmatively establish that it
is more likely than not that removal to the prospective country would
result in the alien's torture, in which case there would be a possible
claim for deferral of removal under the CAT regulations. If the alien
makes this showing, then DHS can choose in its discretion to place the
alien in 240 proceedings, just as with aliens who establish a credible
fear of persecution with respect to eligibility for asylum, or return
the alien to a third country under appropriate standards.
The proposed screening process would proceed as follows. For an
alien subject to expedited removal, DHS will ascertain whether the
alien seeks protection, consistent with INA 235(b)(1)(A)(ii), 8 U.S.C.
1225(b)(1)(A)(ii). All such aliens will continue to go before an asylum
officer for screening, consistent with INA 235(b)(1)(B), 8 U.S.C.
1225(b)(1)(B). The asylum officer will ask threshold questions to
elicit whether an alien is ineligible for asylum pursuant to the
``danger to the security of the United States'' bar. If there is a
significant possibility that the alien is not subject to the
eligibility bar (and the alien otherwise demonstrates that there is a
significant possibility that he or she can establish eligibility for
asylum), then the alien will have established a credible fear.
If, however, an alien is unable to establish a significant
possibility of eligibility for asylum because of the ``danger to the
security of the United States'' bar, then the asylum officer will make
a negative credible fear finding for purposes of asylum (and similarly,
because the alien is also subject to the ``danger to the security of
the United States'' bar to withholding of removal, a negative credible
fear finding for purposes of statutory withholding of removal and
withholding of removal under the CAT regulations). If the alien
affirmatively raises fear of torture, however, the asylum officer will
then assess, as appropriate, the alien's eligibility for deferral of
removal under the CAT regulations. If the alien establishes that it is
more likely than not that he or she would be tortured in the country of
removal, then DHS may in its discretion either place the alien in 240
proceedings or remove him or her to a third country.
If placed in 240 proceedings, then the alien will have an
opportunity to raise whether he or she was correctly identified as
subject to the ``danger to the security of the United States'' bars to
asylum and withholding of removal, as well as other claims. If an IJ
determines that the alien was incorrectly identified as subject to the
bar, then the alien will be able to apply for asylum and withholding of
removal. Such an alien can appeal the IJ's decision in these
proceedings to the Board of Immigration Appeals and then seek review
from a Federal court of appeals.
An alien who is found by the asylum officer to be subject to the
bars and who affirmatively raises a fear of torture but does not
establish that it is more likely than not that he or she would be
tortured can obtain review of both of those determinations by an IJ. In
reviewing the determinations, the IJ will decide de novo whether the
alien is subject to the ``danger to the security of the United States''
asylum and withholding eligibility bars. If the IJ affirms the
determinations, then the alien will be subject to removal without
further appeal, consistent with the existing process under section 235
of the INA. If the IJ finds that the determinations were incorrect,
then the alien will be placed into 240 proceedings or removed to a
third country. An IJ's review determination that an alien is more
likely than not to be tortured would not be binding in any subsequent
240 proceedings, and the IJ presiding over those proceedings would
consider the alien's eligibility for CAT protection de novo. Thus, the
proposed rule would reasonably balance the various interests at stake.
It would promote efficiency by avoiding duplicative administrative
efforts while ensuring that those who are subject to a bar receive an
opportunity to have the asylum officer's finding reviewed by an IJ.
Under the current version of 8 CFR 208.30(e)(5)(iii), if the alien
is found to be an alien described as ineligible for asylum in Sec.
208.13(c)(4), then the asylum officer must enter a negative credible
fear determination with respect to the alien's application for asylum.
The Department must nonetheless place the alien in proceedings under
section 240 of the Act for consideration of the alien's claim for
withholding of removal under section 241(b)(3) of the Act, or for
withholding or deferral of removal under the CAT, if the alien
establishes, respectively, a reasonable fear of persecution or torture.
The scope of review is limited to a determination of whether the alien
is eligible for withholding or deferral of removal, accordingly.
However, if an alien fails to establish, during the interview with the
asylum officer, a reasonable fear of either persecution or torture,
then the asylum officer will provide the alien with a written notice of
decision that will be subject to IJ review consistent with paragraph
(g) of Sec. 208.30, except that the IJ will review the reasonable fear
findings under the ``reasonable fear'' standard instead of the
``credible fear standard'' described in paragraph (g) and in 8 CFR
1208.30(g).
The rule proposes to amend 8 CFR 208.30(e)(5)(iii) to provide that
if an alien is not able to establish that he or she has a credible fear
because of being subject to the third-country-transit asylum bar, but
is nonetheless able to establish a reasonable fear of persecution or
torture, or that it is more likely than not that the alien will be
tortured in the country of removal, DHS may, in the unreviewable
discretion of the Secretary, either place the alien in 240 proceedings
(with the scope of review limited to a determination of whether the
alien is eligible for statutory withholding of removal or withholding
or deferral of removal under the CAT regulations), or remove the alien
to a third country. If DHS decides to remove the alien to a third
country, it shall do so consistent with section 241(b)(1)-(2) of the
Act and 8 CFR 241.15.
The proposed amendments underscore DHS's discretion to determine
whether to place an alien in proceedings under section 240 after the
alien is found to be subject to the mandatory bar to asylum eligibility
for being reasonably regarded as a danger to the security of the United
States or found to be subject to the third-country-transit bar.
F. Proposed 8 CFR 208.25 and 1208.25
The Departments are proposing to add severability provisions in
each of the amended 8 CFR parts. The Departments believe that each of
the provisions of part 208 functions sensibly independent of the other
provisions in the part. To protect the goals for which this rule is
being proposed, the Departments are proposing to codify their intent
that the provisions be severable so that, if necessary, the regulations
can continue to function without a stricken provision.
VI. Regulatory Requirements
A. Regulatory Flexibility Act
The Departments have reviewed this proposed rule in accordance with
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and have
determined that this rule will not have a significant economic impact
on a substantial number of small entities. The rule would not regulate
``small entities'' as that term is defined in 5 U.S.C. 601(6).
[[Page 41214]]
Only individuals, rather than entities, are eligible to apply for
asylum and related forms of relief, and only individuals are placed in
immigration proceedings.
B. Unfunded Mandates Reform Act of 1995
This proposed rule would not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
C. Congressional Review Act
This proposed rule is anticipated not to be a major rule as defined
by section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule
would not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
D. Executive Order 12866, Executive Order 13563, and Executive Order
13771
This proposed rule would amend existing regulations to clarify that
the Departments may consider emergency public health concerns based on
communicable disease when making a determination as to whether ``there
are reasonable grounds for regarding [an] alien as a danger to the
security of the United States'' and, thus, ineligible to be granted
asylum or the protection of withholding of removal in the United States
under INA sections 208 and 241 and 8 CFR 208.13 and 1208.13 and 8 CFR
208.16 and 1208.16, respectively. The rule would also provide that this
application of the statutory bars to eligibility for asylum and
withholding of removal will be effectuated at the credible fear
screening stage for aliens in expedited removal proceedings, in order
to streamline the protection review process and minimize the spread of
communicable disease.
The proposed rule would further allow DHS to exercise its
prosecutorial discretion regarding how to process individuals subject
to expedited removal who are determined to be ineligible for asylum and
withholding of removal in the United States on certain grounds,
including being reasonably regarded as a danger to the security of the
United States, but who nevertheless establish a likelihood that they
will be tortured in the prospective country of removal. It would
provide DHS with the option to either place such aliens into 240
proceedings, or remove them to a country with respect to which an alien
has not established that it is more likely than not that the alien's
life or freedom would be threatened on a protected ground or that the
alien would be tortured. Finally, the proposed rule would modify the
process for evaluating the eligibility for deferral of removal of
aliens who are ineligible for withholding of removal because they are
reasonably regarded as a danger to the security of the United States.
In some cases, asylum officers and IJs would need to spend
additional time during the credible fear process to determine whether
an alien were ineligible for asylum or withholding of removal based on
being reasonably regarded as a danger to the security of the United
States. However, the overall impact on the time spent making (and, in
the case of IJs, reviewing) screening determinations would be minimal.
Additionally, the Departments do not expect the proposed changes to
increase the adjudication time for immigration court proceedings. The
Departments note that the proposed changes may result in fewer asylum
and withholding and deferral of removal grants annually.
Upon a determination of an emergency public health concern under 8
CFR 208.13 and 1208.13, aliens placed into expedited removal
proceedings who exhibit symptoms of a designated communicable disease,
have come into contact with the disease, or were present in an impacted
region preceding entry anytime within the number of days equivalent to
the longest known incubation and contagion period for the disease may
be examined for symptoms or recent contact with the disease and removed
on the ground that they are a danger to the security of the United
States (unless they have demonstrated that it is more likely than not
that they will be tortured in the prospective country of removal, in
which case they will be placed either in 240 proceedings or removed to
a third country). Those in 240 proceedings will be ineligible for
asylum or withholding of removal. The bar would not apply to aliens who
had before the date of a public health emergency declaration or joint
Secretary-Attorney General determination (1) affirmatively filed asylum
or withholding applications, or (2) indicated a fear of return in
expedited removal proceedings.
However, because cases are inherently fact-specific, and because
there may be multiple bases for denying relief or protection, neither
DOJ nor DHS can quantify precisely the expected decrease in grants of
relief. The full extent of the impacts on this population is unclear
and would depend on the specific circumstances and personal
characteristics of each alien, and neither DOJ nor DHS collects such
data at such a level of granularity. Finally, the proposed changes may
also result in fewer aliens being placed in 240 proceedings to the
extent that DHS exercises its discretion to remove aliens to third
countries. However, as these will be discretionary decisions, it is not
possible to quantify the reduction.
This proposed rule is a significant regulatory action under
Executive Order 12866, though not an economically significant
regulatory action. Accordingly, the Office of Management and Budget has
reviewed this proposed regulation.
E. 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, the Departments believe that this rule would
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
section 3(a) and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This proposed rule does not propose new, or revisions to existing,
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320.
H. Signature for DHS
The Acting Secretary of Homeland Security, Chad F. Wolf, having
reviewed and approved this document, is delegating the authority to
electronically sign this document to Chad R. Mizelle, who is the Senior
Official Performing the Duties of the General Counsel for DHS, for
purposes of publication in the Federal Register.
[[Page 41215]]
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
Proposed Regulatory Amendments
DEPARTMENT OF HOMELAND SECURITY
Accordingly, for the reasons set forth in the preamble, the Acting
Secretary of Homeland Security proposes to amend 8 CFR part 208 as
follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.
0
2. Further amend Sec. 208.13, as proposed to be amended at 84 FR
69659, by adding paragraph (c)(10) to read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(10) Aliens who pose a danger to the security of the United States.
In determining whether there are reasonable grounds for regarding an
alien or a class of aliens as a danger to the security of the United
States under section 208(b)(2)(A)(iv) of the Act, the Secretary of
Homeland Security may consider whether the alien exhibits symptoms
consistent with being afflicted with any contagious or infectious
disease or has come into contact with such disease, or whether the
alien or class of aliens is coming from a country, or a political
subdivision or region of that country, or has embarked at a place,
where such disease is prevalent or epidemic (or had come from that
country, subdivision, or region, or had embarked at that place, during
a period in which the disease was prevalent or epidemic there), if:
(i) The disease has triggered an ongoing declaration of a public
health emergency under Federal law, including under section 319 of the
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food,
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
(ii) The Secretary and the Attorney General have, in consultation
with the Secretary of Health and Human Services, jointly:
(A) Determined that because the disease is a communicable disease
of public health significance (in accordance with regulations
prescribed by the Secretary of Health and Human Services (42 CFR
34.2(b))) that is prevalent or epidemic in another country or countries
(or one or more political subdivisions or regions thereof) or place or
places, the physical presence in the United States of aliens who are
coming from such country or countries (or one or more subdivisions or
regions thereof) or have embarked at that place or places (or had come
from that country or countries (or one or more subdivisions or regions
thereof) or had embarked at that place or places during a period in
which the disease was prevalent or epidemic there) would cause a danger
to the public health in the United States; and
(B) Designated the foreign country or countries (or one or more
political subdivisions or regions thereof) or place or places and the
period of time or circumstances under which the Secretary and the
Attorney General jointly deem it necessary for the public health that
aliens described in paragraph (c)(10)(ii)(A) of this section who either
are still within the number of days equivalent to the longest known
incubation and contagion period for the disease or exhibit symptoms
indicating they are afflicted with the disease be regarded as a danger
to the security of the United States under section 208(b)(2)(A)(iv) of
the Act, including any relevant exceptions as appropriate.
0
3. Amend Sec. 208.16 by revising paragraphs (d)(2) and (f) 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.
* * * * *
(d) * * *
(2) Mandatory denials. Except as provided in paragraph (d)(3) of
this section, an application for withholding of removal under section
241(b)(3) of the Act or under paragraph (c) of this section shall be
denied if the applicant falls within section 241(b)(3)(B) of the Act
or, for applications for withholding of deportation adjudicated in
proceedings commenced prior to April 1, 1997, within section 243(h)(2)
of the Act as it appeared prior to that date. For purposes of section
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it
appeared prior to April 1, 1997, an alien who has been convicted of a
particularly serious crime shall be considered to constitute a danger
to the community. If the evidence indicates the applicability of one or
more of the grounds for denial of withholding enumerated in the Act,
the applicant shall have the burden of proving by a preponderance of
the evidence that such grounds do not apply. In determining whether an
alien or a class of aliens can reasonably be regarded as a danger to
the security of the United States under section 241(b)(3)(B)(iv) of the
Act, the Secretary of Homeland Security may consider whether the alien
exhibits symptoms consistent with being afflicted with any contagious
or infectious disease or has come into contact with such disease, or
whether the alien or class of aliens is coming from a country, or
political subdivision or region of a country, or has embarked at a
place, where such disease is prevalent or epidemic (or had come from
that country, subdivision, or region, or had embarked at that place,
during a period in which the disease was prevalent or epidemic there),
if:
(i) The disease has triggered an ongoing declaration of a public
health emergency under Federal law, including under section 319 of the
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food,
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
(ii) The Secretary and the Attorney General have, in consultation
with the Secretary of Health and Human Services, jointly:
(A) Determined that because the disease is a communicable disease
of public health significance (in accordance with regulations
prescribed by the Secretary of Health and Human Services (42 CFR
34.2(b))) that is prevalent or epidemic in another country or countries
(or one or more political subdivisions or regions thereof) or place or
places, that the physical presence in the United States of aliens who
are coming from such country or countries (or one or more political
subdivisions or regions thereof) or have embarked at that place or
places (or had come from that country or countries (or one or more
subdivisions or regions thereof) or had embarked at that place or
places during a period in which the disease was prevalent or epidemic
there) would cause a danger to the public health in the United States;
and
(B) Designated the foreign country or countries (or one or more
political subdivisions or regions thereof) or place or places and the
period of time or circumstances under which the Secretary and the
Attorney General jointly deem it necessary for the public
[[Page 41216]]
health that aliens described in paragraph (d)(2)(ii)(A) of this section
who either are still within the number of days equivalent to the
longest known incubation and contagion period for the disease or
exhibit symptoms indicating they are afflicted with the disease be
regarded as a danger to the security of the United States under section
241(b)(3)(B)(iv) of the Act, including any relevant exceptions as
appropriate.
* * * * *
(f) Removal to third country. (1) Nothing in this section or Sec.
208.17 shall prevent the Department from removing an alien requesting
protection to a third country other than a country to which removal is
currently withheld or deferred.
(2) If an alien requests withholding or deferral of removal to his
or her home country or another specific country, nothing in this
section or Sec. 208.17 precludes the Department from removing the
alien to a third country prior to a determination or adjudication of
the alien's initial request for withholding or deferral of removal if
the alien has not established that his or her life or freedom would be
threatened on account of a protected ground in that third country and
that he or she is not subject to the mandatory bar to eligibility for
withholding of removal under section 241(b)(3)(B)(iv) of the Act, or
that it is more likely than not that he or she would be tortured in
that third country. However, such a removal shall be executed only if
the alien was:
(i) Advised at the time of requesting withholding or deferral of
removal of the possibility of being removed to a third country prior to
a determination or adjudication of the same under the conditions set
forth in this paragraph (f); and
(ii) Provided, but did not accept, an opportunity to withdraw the
request for withholding or deferral of removal in order to prevent such
removal and, instead, proceed to removal pursuant to section 241(b) of
the Act, as appropriate.
0
4. Add Sec. 208.25 to read as follows:
Sec. 208.25 Severability.
The provisions of this part are separate and severable from one
another. In the event that any provision in this part is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as independent rules and
continue in effect.
0
5. Amend Sec. 208.30 by revising paragraphs (e)(1), (3), and (4) and
(e)(5)(i) and (iii) to read as follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission who are found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act, whose entry is limited or
suspended under section 212(f) or 215(a)(1) of the Act, or who failed
to apply for protection from persecution in a third country where
potential relief is available while en route to the United States.
* * * * *
(e) * * *
(1) Subject to paragraph (e)(5) of this section, 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.
* * * * *
(3) Subject to paragraph (e)(5) of this section, an alien will be
found to have a credible fear of torture if the alien shows that there
is a significant possibility that he or she is eligible for withholding
of removal pursuant to Sec. 208.16(c), a regulation issued pursuant to
the legislation implementing the Convention Against Torture.
(4) Subject to paragraph (e)(5) of this section, 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 consideration in a full hearing before an
immigration judge (IJ).
(5)(i) Except as provided in paragraph (e)(5)(ii) through (iv),
(e)(6), or (e)(7) of this section, if an alien:
(A) Is able to establish a credible fear of persecution but appears
to be subject to one or more of the mandatory bars to applying for, or
being granted, asylum under section 208(a)(2) and 208(b)(2)(A)(i)-
(iii), (v)-(vi) of the Act, or withholding of removal under section
241(b)(3)(B)(i)-(iii) of the Act, the Department of Homeland Security
shall nonetheless place the alien in proceedings under section 240 of
the Act for full consideration of the alien's claim, if the alien is
not a stowaway. If the alien is a stowaway, the Department shall place
the alien in proceedings for consideration of the alien's claim
pursuant to Sec. 208.2(c)(3).
(B) Would be able to establish a credible fear of persecution but
for the fact that he or she is subject to the mandatory bars to
eligibility for asylum under section 208(b)(2)(A)(iv) of the Act and to
withholding of removal under section 241(b)(3)(B)(iv) of the Act, but
nevertheless establishes that it is more likely than not that he or she
would be tortured in the prospective country of removal, the Department
of Homeland Security may, in the unreviewable discretion of the
Secretary, either place the alien in proceedings under section 240 of
the Act for full consideration of the alien's claim, or remove the
alien to another country.
(1) If the Department places the alien in proceedings under section
240 of the Act, then the IJ shall review all issues de novo, including
whether the alien has established that it is more likely than not that
he or she would be tortured in the prospective country of removal.
(2) If the Department decides to remove the alien to another
country, it shall do so in a manner consistent with section 241 of the
Act and 8 CFR 241.15, including by not removing the alien to a country
where the alien has established that his or her life or freedom would
be threatened because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion (if the
alien has also established that he or she is not subject to any
mandatory bar to eligibility for withholding of removal under section
241(b)(3)(B) of the Act), or to a country where the alien has
established that he or she would more likely than not be tortured.
Further, such a removal shall be executed only if the alien was:
(i) Advised at the time of requesting withholding or deferral of
removal of the possibility of being removed to a third country prior to
a determination or adjudication of the same under the conditions set
forth in this paragraph (e)(5)(i); and
(ii) Provided, but did not accept, an opportunity to withdraw the
request for withholding or deferral of removal in order to prevent such
removal and, instead, proceed to removal pursuant to section 241(b) of
the Act, as appropriate.
(3) If the alien fails to affirmatively establish, during an
interview with the asylum officer, that it is more likely than not that
he or she would be tortured in the prospective country of removal, then
the asylum officer will provide the alien with a written notice of
decision that will be subject to IJ review consistent with paragraph
(g) of this section. 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).
* * * * *
(iii) If the alien is found to be an alien described as ineligible
for asylum in Sec. 208.13(c)(4), then the asylum officer shall enter a
negative credible fear determination with respect to the alien's
[[Page 41217]]
intention to apply for asylum. If the alien:
(A) Establishes a reasonable fear of persecution or torture (as
both terms are defined in Sec. 208.31(c), except that the bar to
eligibility for withholding of removal under section 241(b)(3)(B)(iv)
of the Act shall be considered); or
(B) Would be able to establish a reasonable fear of torture (as
defined in Sec. 208.31(c)) but for the fact that he or she is subject
to the mandatory bar to eligibility for withholding of removal under
section 241(b)(3)(B)(iv) of the Act, but nevertheless affirmatively
establishes that it is more likely than not that he or she would be
tortured in the prospective country of removal, the Department of
Homeland Security may, in the unreviewable discretion of the Secretary,
either place the alien in proceedings under section 240 of the Act for
consideration of the alien's claim for withholding of removal under
section 241(b)(3) of the Act or under the Convention Against Torture,
or remove the alien to another country.
(1) If the Department places the alien in proceedings under section
240 of the Act, then the IJ shall review all issues de novo, including
whether the alien has established that it is more likely than not that
he or she would be tortured in the prospective country of removal.
(2) If the Department decides to remove the alien to another
country, it shall do so in a manner consistent with section 241(b)(2)
of the Act and 8 CFR 241.15, including by not removing the alien to a
country where the alien has established that his or her life or freedom
would be threatened because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion (if the
alien has also established that he or she is not subject to any
mandatory bar to eligibility for withholding of removal under section
241(b)(3)(B) of the Act), or to a country where the alien has
established that he or she would more likely than not be tortured.
Further, such a removal shall be executed only if the alien was:
(i) Advised at the time of requesting withholding or deferral of
removal of the possibility of being removed to a third country prior to
a determination or adjudication of the same under the conditions set
forth in this paragraph (e)(5)(iii); and
(ii) Provided, but did not accept, an opportunity to withdraw the
request for withholding or deferral of removal in order to prevent such
removal and, instead, proceed to removal pursuant to section 241(b) of
the Act, as appropriate.
(3) If the alien fails to affirmatively establish, during the
interview with the asylum officer, that it is more likely than not that
the alien would be tortured in the prospective country of removal, then
the asylum officer will provide the alien with a written notice of
decision, which will be subject to IJ review consistent with paragraph
(g) of this section. 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).
* * * * *
DEPARTMENT OF JUSTICE
Accordingly, for the reasons set forth in the preamble, the
Attorney General proposes to amend 8 CFR part 1208 as follows:
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
6. The authority citation for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; Pub. L. 115-218.
0
7. Further amend Sec. 1208.13, as proposed to be amended at 84 FR
69660, by adding paragraph (c)(10) to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(10) Aliens who pose a danger to the security of the United States.
In determining whether an alien or a class of aliens can reasonably be
regarded as a danger to the security of the United States under section
208(b)(2)(A)(iv) of the Act, the Attorney General may consider whether
the alien exhibits symptoms consistent with being afflicted with any
contagious or infectious disease or has come into contact with such a
disease, or whether the alien or class of aliens is coming from a
country, or a political subdivision or region of a country, or has
embarked at a place, where such disease is prevalent or epidemic (or
had come from that country, subdivision, or region, or had embarked at
that place, during a period in which the disease was prevalent or
epidemic there), if:
(i) The disease has triggered an ongoing declaration of a public
health emergency under Federal law, including under section 319 of the
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food,
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
(ii) The Attorney General and the Secretary of Homeland Security
have, in consultation with the Secretary of Health and Human Services,
jointly:
(A) Determined that because the disease is a communicable disease
of public health significance (in accordance with regulations
prescribed by the Secretary of Health and Human Services (42 CFR
34.2(b))) that is prevalent or epidemic in another country or countries
(or one or more political subdivisions or regions thereof) or place or
places, the physical presence in the United States of aliens who are
coming from such country or countries (or one or more political
subdivisions or regions thereof) or have embarked at that place or
places (or had come from that country or countries (or one or more
subdivisions or regions thereof) or embarked at that place or places
during a period in which the disease was prevalent or epidemic there),
would cause a danger to the public health in the United States; and
(B) Designated the foreign country or countries (or one or more
political subdivisions or regions thereof) or place or places and the
period of time or circumstances under which the Attorney General and
the Secretary of Homeland Security jointly deem it necessary for the
public health that aliens described in paragraph (c)(10)(ii)(A) who
either are still within the number of days equivalent to the longest
known incubation and contagion period for the disease or exhibit
symptoms consistent with being afflicted with the disease be regarded
as a danger to the security of the United States under section
208(b)(2)(A)(iv) of the Act, including any relevant exceptions as
appropriate.
0
8. Amend Sec. 1208.16 by revising paragraphs (d)(2) and (f) 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.
* * * * *
(d) * * *
(2) Mandatory denials. Except as provided in paragraph (d)(3) of
this section, an application for withholding of removal under section
241(b)(3) of the Act or under paragraph (c) of this section shall be
denied if the applicant falls within section 241(b)(3)(B) of the Act
or, for applications for withholding of deportation adjudicated in
proceedings commenced prior to April 1, 1997, within section 243(h)(2)
of the Act as it appeared prior to that date. For purposes of section
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it
appeared prior to April 1, 1997, an alien who has been convicted of a
particularly serious crime shall be considered to constitute a danger
to the
[[Page 41218]]
community. If the evidence indicates the applicability of one or more
of the grounds for denial of withholding enumerated in the Act, the
applicant shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply. In determining whether an
alien or a class of aliens can reasonably be regarded as a danger to
the security of the United States under section 241(b)(3)(B)(iv) of the
Act, the Attorney General may consider whether the alien exhibits
symptoms consistent with being afflicted with any contagious or
infectious disease or has come into contact with such disease, or
whether the alien or class of aliens is coming from a country, or a
political subdivision or region of a country, or has embarked at a
place, where such disease is prevalent or epidemic (or had come from
that country, subdivision, or region, or embarked at that place, during
a period in which the disease was prevalent or epidemic there), if:
(i) The disease has triggered an ongoing declaration of a public
health emergency under Federal law, including under section 319 of the
Public Health Service Act, 42 U.S.C. 247d, or section 564 of the Food,
Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3; or
(ii) The Attorney General and the Secretary of Homeland Security
have, in consultation with the Secretary of Health and Human Services,
jointly:
(A) Determined that because the disease is a communicable disease
of public health significance (in accordance with regulations
prescribed by the Secretary of Health and Human Services (42 CFR
34.2(b))) that is prevalent or epidemic in another country or countries
(or one or more political subdivisions or regions thereof) or place or
places, the physical presence in the United States of aliens who are
coming from such country or countries (or one or more subdivisions or
regions thereof) or have embarked at that place or places (or had come
from that country or countries (or one or more subdivisions or regions
thereof) or embarked at that place or places during a period in which
the disease was prevalent or epidemic there), would cause a danger to
the public health in the United States; and
(B) Designated the foreign country or countries (or one or more
political subdivisions or regions thereof) or place or places and the
period of time or circumstances under which the Attorney General and
the Secretary of Homeland Security jointly deem it necessary for the
public health that aliens described in paragraph (d)(2)(ii)(A) of this
section who either are still within the number of days equivalent to
the longest known incubation and contagion period for the disease or
exhibit symptoms indicating they are afflicted with the disease be
regarded as a danger to the security of the United States under section
241(b)(3)(B)(iv) of the Act, including any relevant exceptions as
appropriate.
* * * * *
(f) Removal to third country. (1) Nothing in this section or Sec.
1208.17 shall prevent the Department of Homeland Security from removing
an alien requesting protection to a third country other than a country
to which removal is currently withheld or deferred.
(2) If an alien requests withholding or deferral of removal to the
applicable home country or another specific country, nothing in this
section or Sec. 1208.17 precludes the Department of Homeland Security
from removing the alien to a third country prior to a determination or
adjudication of the alien's initial request for withholding or deferral
of removal if the alien has not established that his or her life or
freedom would be threatened on account of a protected ground in that
third country and that he or she is not subject to the mandatory bar to
eligibility for withholding of removal under section 241(b)(3)(B)(iv)
of the Act, or that it is more likely than not that he or she would be
tortured in that third country. However, such a removal shall be
executed only if the alien was:
(i) Advised at the time of requesting withholding or deferral of
removal of the possibility of being removed to a third country prior to
a determination or adjudication of the same under the conditions set
forth in this paragraph (f); and
(ii) Provided, but did not accept, an opportunity to withdraw the
request for withholding or deferral of removal in order to prevent such
removal and, instead, proceed to removal pursuant to section 241(b) of
the Act, as appropriate.
0
9. Add Sec. 1208.25 to read as follows:
Sec. 1208.25 Severability.
The provisions of this part are separate and severable from one
another. In the event that any provision in this part is stayed,
enjoined, not implemented, or otherwise held invalid, the remaining
provisions shall nevertheless be implemented as independent rules and
continue in effect.
0
10. Amend Sec. 1208.30 by revising paragraphs (e) and (g)(2)(iv)(A)
and (B) to read as follows:
Sec. 1208.30 Credible fear determinations involving stowaways and
applicants for admission who are found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act, whose entry is limited or
suspended under section 212(f) or 215(a)(1) of the Act, or who failed
to apply for protection from persecution in a third country where
potential relief is available while en route to the United States.
* * * * *
(e) Determination. For the standards and procedures for asylum
officers in conducting credible fear interviews 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)(2) of this section and 8 CFR 1003.42. If the alien is
found to be an alien ineligible for asylum under Sec. 1208.13(c)(4),
(6), or (7), then the immigration judge shall find that the alien does
not have a credible fear of persecution with respect to the alien's
intention to apply for asylum. The immigration judge's decision is
final and may not be appealed. This finding, as well as all other
findings of a lack of credible or reasonable fear of persecution or
torture made by immigration judges under section 235(b)(1)(B)(iii)(III)
of the Act and Sec. 1003.42 and paragraph (g) of this section, does
not constitute a denial of an asylum application by an immigration
judge under Sec. Sec. 208.4(a)(3) of this title and 1208.4(a)(3).
* * * * *
(g) * * *
(2) * * *
(iv) * * *
(A) If the immigration judge concurs with the determinations of the
asylum officer that the alien does not have a credible fear of
persecution or torture or a reasonable fear of persecution or torture
and that the alien has not affirmatively established that it is more
likely than not that he or she would be tortured in the prospective
country of removal, after having reviewed the asylum officer's
reasonable fear findings under the reasonable fear standard (as defined
in Sec. 1208.31(c), except that the bar to eligibility for withholding
of removal under section 241(b)(3)(B)(iv) of the Act shall be
considered), and the officer's finding regarding whether the alien is
more likely than not to be tortured under the more likely than not
standard, then the case shall be returned to the Department of Homeland
Security for removal of the alien. The immigration judge's decision is
final and may not be appealed.
(B) If the immigration judge, after having reviewed the asylum
officer's reasonable fear findings under the
[[Page 41219]]
reasonable fear standard and the officer's finding regarding whether
the alien is more likely than not to be tortured under the more likely
than not standard, finds that the alien, other than an alien stowaway,
has a credible fear of persecution or torture or a reasonable fear of
persecution or torture (as reasonable fear of persecution or torture is
defined in Sec. 1208.31(c), except that the bar to eligibility for
withholding of removal under section 241(b)(3)(B)(iv) of the Act shall
be considered), or has established that it is more likely than not that
he or she would be tortured in the prospective country of removal, the
immigration judge shall vacate the order of the asylum officer issued
on Form I-860 and the Department of Homeland Security may commence
removal proceedings under section 240 of the Act, during which time the
alien may file an application for asylum or withholding of removal in
accordance with Sec. 1208.4(b)(3)(i), or remove the alien to a third
country pursuant to 8 CFR 208.30(e)(5). If the Department of Homeland
Security commences removal proceedings under section 240 of the Act,
the immigration judge presiding in those proceedings shall consider all
issues de novo, including whether the alien has established that it is
more likely than not that he or she would be tortured in the
prospective country of removal.
* * * * *
Approved:
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel.
Approved: June 30, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-14758 Filed 7-8-20; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P
