Security Bars and Processing

Cited as:85 FR 41201
Court:Executive Office For Immigration Review, Homeland Security Department
Publication Date:09 Jul 2020
Record Number:2020-14758
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]
                ========================================================================
                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.
                ========================================================================
                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 17060.
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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\
                ---------------------------------------------------------------------------
                 \33\ Id.
                 \34\ Id.
                 \35\ Id.
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \40\ CDC Order, 85 FR at 17067.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                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'').
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \51\ Determination of Public Health Emergency, 85 FR 7316 (Feb.
                7, 2020).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                [[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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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