Security Bars and Processing
| Published date | 23 December 2020 |
| Citation | 85 FR 84160 |
| Record Number | 2020-28436 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 85 Issue 247 (Wednesday, December 23, 2020)
[Federal Register Volume 85, Number 247 (Wednesday, December 23, 2020)]
[Rules and Regulations]
[Pages 84160-84198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28436]
[[Page 84159]]
Vol. 85
Wednesday,
No. 247
December 23, 2020
Part IIIDepartment of Homeland Security-----------------------------------------------------------------------8 CFR Part 208Department of Justice-----------------------------------------------------------------------Executive Office for Immigration Review-----------------------------------------------------------------------
8 CFR Part 1208Security Bars and Processing; Final Rule
Federal Register / Vol. 85 , No. 247 / Wednesday, December 23, 2020 /
Rules and Regulations
[[Page 84160]]
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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
[Dir. Order No. 11-2021]
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: Final rule.
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SUMMARY: On July 9, 2020, DHS and DOJ (collectively, ``the
Departments'') published a notice of proposed rulemaking (``NPRM'')
clarifying that the danger to the security of the United States
statutory bar to eligibility for asylum and withholding of removal may
encompass emergency public health concerns. This final rule responds to
comments received in response to the NPRM and reflects (and in some
instances, modifies) intervening changes made to the regulatory
framework by Procedures for Asylum and Withholding of Removal; Credible
Fear and Reasonable Fear Review, published December 11, 2020 (``Global
Asylum Final Rule''). Namely, it amends existing regulations to clarify
that in certain circumstances there are ``reasonable grounds for
regarding [an] alien as a danger to the security of the United States''
or ``reasonable grounds to believe that [an] alien is a danger to the
security of the United States'' based on emergency public health
concerns generated by a communicable disease, making the alien
ineligible to be granted asylum in the United States under section 208
of the Immigration and Nationality Act (``INA'') or the protection of
withholding of removal under the INA (``statutory withholding of
removal'') or subsequent regulations (because of the threat of
torture). The final rule further allows 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 because they are subject to
the danger to the security of the United States. Finally, the rule
modifies the process in expedited removal proceedings for screening
aliens for potential eligibility for deferral of removal (who are
ineligible for withholding of removal as subject to the danger to the
security of the United States bar).
DATES: This final rule is effective January 22, 2021.
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. Executive Summary
On July 9, 2020, the Departments published an NPRM entitled
Security Bars and Processing. 85 FR 41201 et seq. (July 9, 2020). In
this final rule, the Departments respond to comments received in
response to the NPRM and changes made to the regulatory framework by
the Global Asylum Final Rule, in order to mitigate the risk of aliens
bringing a serious communicable \1\ disease to the United States, or
further spreading it within our country. Thus, the Departments make
three fundamental and necessary reforms to the Nation's immigration
system: (1) Clarifying that the statutory ``danger to the security of
the United States'' bars to eligibility for asylum and withholding of
removal apply in certain contexts involving public health crises caused
by communicable diseases so that aliens can be expeditiously removed,
as appropriate, (2) as to aliens determined during credible fear
screenings to be ineligible for asylum and withholding of removal on
the basis of the danger to the security of the United States bars or
ineligible for asylum for having failed to apply for protection from
persecution in a third country where potential relief is available
while en route to the United States pursuant to Asylum Eligibility and
Procedural Modifications, 85 FR 82260 (December 17, 2020) (``Third-
Country Transit Final Rule''), streamlining screening for potential
eligibility for deferral of removal in the expedited removal process to
similarly allow for the expeditious removal of aliens ineligible for
deferral, and (3) as to aliens determined during credible fear
screenings to be ineligible for asylum and withholding of removal on
the basis of the danger to the security of the United States bars or
ineligible for asylum for having failed to apply for protection from
persecution in a third country where potential relief is available
while en route to the United States pursuant to the Third-Country
Transit Final Rule, but who nevertheless establish that they are more
likely than not to be tortured in the prospective country of removal,
allowing DHS to utilize its prosecutorial discretion to either place
the aliens into asylum-and-withholding-only removal proceedings under 8
CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1) (``asylum-and-withholding-only
proceedings'') \2\ or to remove them to third countries where they
would not be more likely than not to be tortured.
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\1\ The Department of Health and Human Services defines a
communicable disease as ``an illness due to a specific infectious
agent or its toxic products which arises through transmission of
that agent or its products from an infected person or animal or a
reservoir to a susceptible host, either directly, or indirectly
through an intermediate animal host, vector, or the inanimate
environment.'' 42 CFR 71.1(b).
\2\ Asylum-and-withholding-only proceedings are adjudicated in
the same manner that had applied to certain alien crewmembers,
stowaways, and applicants for admission under the Visa Waiver
Program, among other categories of aliens who are not entitled by
statute to removal proceedings under section 240 of the INA, 8
U.S.C. 1229a. 8 CFR 208.2(c)(1)(i)-(viii), 1208.2(c)(1)(i)-(viii).
These proceedings generally follow the same rules of procedure that
apply in section 240 proceedings, but the immigration judge's
consideration is limited solely to a determination on the alien's
eligibility for asylum, withholding of removal and deferral of
removal (and, if the alien is eligible for asylum, whether he or she
should receive it as a matter of discretion). 8 CFR 208.2(c)(3)(i),
1208.2(c)(3)(i).
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The amendments made by this final rule will apply to aliens who
enter the United States after the rule's effective date, except that
the amendments will not apply to aliens who had, before the date of an
applicable joint Secretary of Homeland Security and Attorney General
designation of an area or areas of the world as to which it is
necessary for the public health that certain aliens who were present
there be regarded as a danger to the security of the United States, (1)
filed asylum and withholding of removal applications, or (2) indicated
a fear of return in expedited removal proceedings.
II. Background
The preamble discussion in the NPRM is generally incorporated by
reference in this final rule.\3\ As of the date the NPRM was published
on July 9, 2020, 3,239,412 persons in the United
[[Page 84161]]
States were reported to have contracted COVID-19 and 136,145 had
died.\4\ The number of persons infected has now reached 16,519,668 and
the death toll has reached 302,992 (as of December 15, 2020).\5\
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\3\ The preamble discussion is not incorporated to the extent
specifically noted in this final rule, or in the context of proposed
regulatory text that is not contained in this final rule.
\4\ WorldMeter, COVID-19 Tracking Tool, https://www.worldometers.info/coronavirus/#countries (last visited November
3, 2020).
\5\ CDC COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (last visited December 17,
2020).
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As of December 2020, the impact of the COVID-19 pandemic has been
similar to that pandemic impact feared by then-Secretary of Homeland
Security Michael Chertoff in 2006--``[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\
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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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On December 16, 2020, the Federal Reserve Board's Open Market
Committee (``FOMC'') projected that real gross domestic product
(``GDP'') in fiscal year 2020 would fall by 2.4 percent and that the
national unemployment rate would be 6.7 percent.\7\ As a result of
COVID-19, the national unemployment rate rose from 3.5 percent in
February 2020 to a peak of 14.7 percent in April, before subsequently
declining, most recently to 6.7 percent in November.\8\ The FOMC also
projected that GDP will rebound by 4.2 percent in fiscal year 2021 and
the national unemployment rate will fall to 5.0 percent.\9\ On December
16, 2020, the FOMC issued a statement finding that:
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\7\ FOMC, Federal Reserve System, December 16, 2020: FOMC
Projections Materials, Accessible Version (table 1). The 2.4 percent
fall in GDP is the median projection of Federal Reserve Board
members and Federal Reserve Bank presidents from the 4th quarter of
2019 to the 4th quarter of 2020 under each participant's assessment
of appropriate monetary policy, with the upper end of central
tendency (which excludes the three highest and three lowest
projections) a decrease of 2.2 percent and the lower end of central
tendency at drop of 2.5 percent. The 6.7 percent unemployment rate
is the median projection of the average civilian unemployment rate
in the 4th quarter of 2020, with the upper end of central tendency
at 6.8 percent and the lower end of range at 6.7 percent.
\8\ Bureau of Labor Statistics, U.S. Department of Labor, The
Employment Situation--June 2020 (table A-1) and The Employment
Situation--November 2020 (table A-1) (both providing the seasonally
adjusted unemployment rate for the civilian noninstitutional
population, persons 16 years old and over).
\9\ December 16, 2020: FOMC Projections Materials, Accessible
Version (table 1). The 4.2 percent rise in GDP is the median
projection of Federal Reserve Board members and Federal Reserve Bank
presidents from the 4th quarter of 2020 to the 4th quarter of 2021
under each participant's assessment of appropriate monetary policy,
with the upper end of central tendency an increase of 5.0 percent
and the lower end of central tendency an increase of 3.7 percent.
The 5.0 percent unemployment rate is the median projection of the
average civilian unemployment rate in the 4th quarter of 2021, with
the upper end of central tendency at 5.4 percent and the lower end
of range at 4.7 percent.
The COVID-19 pandemic is causing tremendous human and economic
hardship across the United States and around the world. Economic
activity and employment have continued to recover but remain well
below their levels at the beginning of the year. . . . The path of
the economy will depend significantly on the course of the virus.
The ongoing public health crisis will continue to weigh on economic
activity, employment, and inflation in the near term, and poses
considerable risks to the economic outlook over the medium term.\10\
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\10\ FOMC, Federal Reserve System, Federal Open Market Committee
Statement (December 16, 2020).
After evaluating the effects of voluntary and mandatory containment
measures, the International Monetary Fund (``IMF'') reported in October
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that:
If lockdowns were largely responsible for the economic
contraction, it would be reasonable to expect a quick economic
rebound when they are lifted. But if voluntary social distancing
played a predominant role, then economic activity would likely
remain subdued until health risks recede.
[T]he analysis suggests that lockdowns and voluntary social
distancing played a near comparable role in driving the economic
recession. The contribution of voluntary distancing in reducing
mobility was stronger in advanced economies, where people can work
from home more easily and sustain periods of temporary unemployment
because of personal savings and government benefits.
When looking at the recovery path ahead, the importance of
voluntary social distancing as a contributing factor to the downturn
suggests that lifting lockdowns is unlikely to rapidly bring
economic activity back to potential if health risks remain. . . .
These findings suggest that economies will continue to operate below
potential while health risks persist, even if lockdowns are
lifted.\11\
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\11\ IMF, World Economic Outlook: Chapter 2: The Great Lockdown:
Dissecting the Economic Effects at 65-66 (October 2020).
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IV. Public Comments on the Proposed Rule
A. Summary of Public Comments
On July 9, 2020, the Departments published the NPRM (docket USCIS-
2020-0013). The comment period closed on August 10, 2020. The
Departments received a total of 5,044 submissions. While some of the
comments expressed general support for the proposed rule or expressed a
mixed opinion of the rule, the majority of commenters opposed the rule.
Of the 5,044 total submissions, 1,417 were unique, nonduplicative
submissions.
Overall, and as discussed in more detail below, the Departments
generally decline to adopt the recommendations of comments that
misstate the NPRM, offer broad and dire hypothetical or speculative
effects without any support, are contrary to facts or law or otherwise
untethered to a reasoned basis, or lack an understanding of relevant
law and procedures regarding the overall immigration system.
B. Comments Expressing General Support for the Proposed Rule
Comment: At least two organizations and other individual commenters
expressed general support for the rule. Commenters who supported the
rule considered the health and safety of American citizens as paramount
and agreed that public health concerns should be a consideration in
evaluating dangers to the national security and considering asylum
applications. These commenters supported protecting Americans from the
spread of communicable diseases and urged the U.S. government to
prevent the healthcare system from becoming overburdened by aliens
seeking medical care in the United States.
One commenter noted an increase in COVID-19 cases at border
crossings and considered aliens infected with COVID-19 as a threat to
Americans' health and a financial burden to the country. Another
commenter expressed support for the rule, stating that it was unfair
for American taxpayers to pay for the healthcare of aliens.
Some commenters stated that the rule protected U.S. citizens from
individuals who abuse the law and take advantage of the United States'
generosity and asylum system.
Response: The Departments note and appreciate these commenters'
support for the rule.
C. Comments Expressing General Opposition for the Proposed Rule
Comment: At least 3,570 commenters, including 2,635 submissions
associated with form letter campaigns, expressed general disagreement
with the proposed rule. Many commenters characterized the rule as
racist, unfair, or otherwise morally wrong. Moreover, some commenters
interpreted the rule as discriminatory against black, brown, indigenous
persons, and immigrants. Additionally, commenters characterized the
rule as an immigration or asylum ban and expressed concerns that the
rule would make immigration to the United States more difficult or
eliminate the availability of asylum and
[[Page 84162]]
withholding of removal in the United States. Some commenters stated
that asylum-seekers do not pose a security or safety threat to the
United States on the basis of having traveled through other countries.
Many commenters stated that the rule conflicts with American values
and the country's deeply rooted policy of welcoming immigrants and
refugees, and they asserted that its implementation would damage the
United States' standing and reputation in the world. Commenters
believed that the United States should welcome asylum-seekers, and that
immigration benefits the United States both economically and
culturally. Some commenters believed the rule unlawfully infringes on
aliens' rights to asylum in the United States.
Many commenters also generally asserted that the rule provides
inadequate policy justification or legal analysis, which commenters
asserted is evidence that it was inappropriately motivated by the
Administration's personal animus against immigrants. Some commenters
also rejected the public health rationale, claiming that alternative
measures could be taken to protect the American public, and that the
rule would do little to mitigate the spread of disease. Additionally,
commenters believed that it is unreasonable for the Departments to make
decisions regarding public health.
Multiple commenters wrote that the rule would be discriminatory.
These commenters claimed the rule would generally contravene
international laws against discrimination, including Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT''),\12\ the Universal Declaration of
Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the Convention on the Elimination of All Forms of
Discrimination against Women, the United States' obligations under the
1951 Convention relating to the Status of Refugees (``Refugee
Convention'') \13\ and the 1967 Protocol relating to the Status of
Refugees (``Refugee Protocol''),\14\ and Article 7 of the International
Covenant on Civil and Political Rights. Some commenters claimed that
the rule specifically discriminates on the basis of national origin
because applicants could be barred from asylum eligibility on the basis
of the countries through which they have travelled.
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\12\ CAT, art. 3(1), December 10, 1984, S. Treaty Doc. No. 100-
20 (1988), 1465 U.N.T.S. 84.
\13\ July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.
\14\ Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268. Article
33.1 of the Refugee Convention states that ``[n]o Contracting State
shall expel or return (`refouler') a refugee in any manner
whatsoever to the frontiers or territories where his life or freedom
would be threatened on account of his race, religion, nationality,
membership or a particular social group or political opinion.'' 19
U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176 (emphasis added). In 1968,
the United States acceded to the Refugee Protocol, which bound
parties to comply with the substantive provisions of Articles 2
through 34 of the Convention with respect to refugees. See I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 429 (1987).
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Some commenters said the rule violates guidance provided by the
United Nations High Commissioner for Refugees (``UNHCR'') because it
denies asylum in ``blanket terms'' based on consideration of the
prevalence of a disease in the countries through which asylum seekers
have travelled and because the standard of evidence for triggering the
bar is low.
Response: To provide an overview of the Departments' response to
these comments, the Departments emphatically disagree with contentions
that the rule is immoral, motivated by racial animus, or promulgated
with discriminatory intent. This rulemaking applies equally to all
asylum seekers. The demographics of asylum seekers are as vast and
varied as the number of countries around the globe and the Departments
did not promulgate this rule to impact any particular race, religion,
nationality, or category of aliens who may seek asylum.
The Departments also strongly disagree that this rule illegally
infringes on the right to seek asylum. Unlike statutory withholding of
removal and protections under the regulations issued pursuant to the
legislation implementing Article 3 of CAT (``CAT regulations''), asylum
is a discretionary benefit. No one has the right to be granted asylum
in the United States and this rule does not alter an alien's ability to
seek asylum through the statutorily-prescribed channels, including
credible fear interviews for aliens in expedited removal proceedings.
Additionally, aliens subject to the bars imposed by this rule on asylum
and withholding of removal may still receive protection against removal
if they establish they are eligible for deferral of removal under the
CAT regulations.
The United States continues to fulfill its international
commitments as implemented by domestic law. This rule merely reflects
the need to protect the American public during times of extraordinary
threats to the public health from pandemic diseases, as permitted by
those laws.
The Departments have considered and rejected alternatives to
mitigate the spread of communicable disease within U.S. Customs and
Border Protection (``CBP'') facilities at the border. Although CBP has
policies and procedures in place to handle communicable diseases, CBP
is not equipped to provide medical support sufficient to meet the
unique and specialized challenges posed by particularly infectious or
highly contagious illnesses or diseases brought into CBP facilities. 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 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 a highly contagious
illness or disease were to be transmitted within a CBP facility, CBP
operations could face significant disruption.
As the Departments explain below, the U.S. government is not bound
by UNHCR guidance. And the Departments disagree with the premise that
the rule's standards for triggering the bars to eligibility for asylum
and withholding of removal are inadequate. The Departments proposed the
rule to clarify that authorities provided by Congress can be used to
mitigate harms arising from the spread of communicable disease to DHS
officers on the border, aliens in DHS custody, and the general public,
as well as significant operational and resource strains associated with
public health procedures and protocol the Departments must implement,
and in the case of COVID-19, are implementing, to mitigate the spread
of communicable disease. Additionally, the rule requires that the
application of the security bars to asylum and withholding of removal
be tailored to the specific threat posed by the relevant public health
emergency.
D. Basis for the Rule
1. Legal Authority
Several commenters generally argued that the proposed rule is
contrary to international or domestic law, including the Refugee
Convention and Refugee Protocol, CAT, and the INA, and is contrary to
Congressional intent in enacting these laws and ratifying these
treaties to provide protection to those fleeing persecution or torture.
[[Page 84163]]
Antiterrorism and Effective Death Penalty Act of 1996 (``AEDPA'')
Comment: Commenters argued that the proposed rule ignores or
contradicts Congressional intent by not acknowledging the distinction
between national security and economic concerns in AEDPA, citing
legislative history and sections 413 and 421 of the legislation, which
incorporated the terrorism-related removal grounds at INA
212(a)(3)(B)(i) and 237(a)(4)(B) as mandatory bars to eligibility for
asylum and withholding of removal. The commenters argued that Congress
intended for these provisions to limit the scope of danger to the
security of the United States bars to those aliens who have engaged in
violent acts or other terrorism-related activity, in marked contrast to
the type of threat posed by a communicable disease.
Response: The Departments disagree with the commenters' analysis of
sections 413 and 421 of AEDPA. As discussed in the NPRM, with respect
to aliens whom there are reasonable grounds for regarding or believing
are a danger to the security of the United States and thus ineligible
for asylum and withholding of removal, 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, finding
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.\15\
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\15\ 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. In fact, 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.\16\ The proposed legislation as originally
passed by the Senate defined ``national security'' to mean ``the
national defense and foreign relations of the United States.'' \17\
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.\18\ 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:
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\16\ H.R. Rep. No. 104-518, at 38 (1996) (Conf. Rep.).
\17\ 142 Cong. Rec. H2268-03, at H2276 (Mar. 14, 1996) (S. 735,
title VI, 401(a)).
\18\ Section 401(a) of title IV of S. 735 (as passed the Senate
on June 7, 1995), 141 Cong. Rec. S7864 (July 7, 1995).
(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 . . . .\19\
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\19\ Id.
But Congress then seemingly abandoned this bifurcation between security
and the economy. First, the Conference Report merged economic
considerations into the definition of national security. 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 suggests 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 economic 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 rule, it makes even greater sense for it to
encompass economic concerns (and, consequently, public health concerns
of such magnitude that they become economic concerns). A pandemic can
cause immense economic damage, in addition to the human toll of the
illness. Thus, the entry of aliens who may carry communicable 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.
Finally, while aliens who are described in the terrorism-related
removal grounds fall under the ``danger to security'' bars to asylum
and withholding, there is nothing in the language of those sections
limiting the application of those bars to terrorism grounds. In fact,
terrorism-related activity is a separate statutory bar to asylum
eligibility from the danger to the security of the United States bar.
And the INA specifies that an alien engaging in such activity ``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), thus indicating
such an alien represents only a subset of the larger category of aliens
for whom there are reasonable grounds to believe are a danger to the
security of the United States.
The Departments are not making changes to the final rule in
response to these comments.
Refugee Convention, Refugee Protocol, UNHCR Guidance and Statements,
the Universal Declaration of Human Rights, and the International Health
Regulations
Comment: Several commenters claimed that the NPRM is inconsistent
with U.S. obligations under the Refugee Convention and the Refugee
Protocol, including the principal of nonrefoulement, and that those
obligations have been implemented into domestic U.S. law through the
Refugee Act of 1980. They argued that domestic statutes must be
interpreted consistently with international law where possible, and
cite sources relating to the U.S. role in negotiation of the Refugee
Convention and in the ratification of the Refugee Protocol evincing the
intent of the U.S. not to exclude refugees from protection for reasons
of health. Commenters argued that the danger to the security of the
United States bars to asylum and withholding of removal derive from
Articles 32 and 33(2) of the
[[Page 84164]]
Refugee Convention. They claimed that these provisions regarding
national security do not encompass health concerns. Several commenters
also pointed out that withholding of removal is not a discretionary
benefit but instead a mandatory protection under Article 33 of the
Refugee Convention as codified at section 241(b)(3) of the INA. Two
commenters cited UNHCR's guidance and academic papers in arguing that
the danger to the security of the United States bars must be based on
individualized determinations. Another commenter specifically argued
that the ``reasonable person'' standard proposed by the rule, and the
possibility that a person could be expelled for passing through a
country where COVID-19 was prevalent without proof of that person's
infection (via testing), violates UNHCR guidance against refoulement
without evidence of a health risk. An individual also commented that
such a denial would violate Article 14 of the Universal Declaration of
Human Rights, which guarantees the right to seek and enjoy asylum from
persecution. A legal services provider cited to UNHCR guidance,\20\ as
well as U.S. correspondence during the formulation of the Refugee
Protocol, in arguing the invalidity of security bars applying to an
entire class of asylum seekers. Another commenter cited to the 2006
UNHCR guidance for the propositions that (1) the dangers to the
security of the United States bars must be restrictively interpreted;
(2) the danger posed to national security must be sufficient to justify
refoulement; and (3) refoulement must be proportionate to the danger
presented.\21\ The commenter then concluded that the proposed rule
would fail under all three considerations. Another commenter stated
that not considering an asylum seeker's intent with respect to conduct
that could give rise to a security bar would be contrary to the
humanitarian social purpose of the Refugee Act and the Refugee
Convention. Multiple commenters also cited to 2020 UNHCR guidance,\22\
as prohibiting the closure of borders for public health reasons without
preserving asylum seekers' rights under international law, noting that
the guidance recommended relying on the screening and quarantine of
asylum seekers, stated that refoulement could not be justified on a
public health basis and stated that a total lock-out of asylum seekers
would violate rules of proportionality.
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\20\ UNHCR, Advisory Opinion from the UNHCR on the Scope of the
National Security Exception Under Article 33(2) of the 1951
Convention Relating to the Status of Refugees 5 (2006).
\21\ See, e.g., Message from the President of the United States,
Transmitting the Protocol Relating to the Status of Refugees, at
VIII (1968); Dep't of Health, Education, and Welfare (``HEW''),
Memorandum for Ambassador Graham Martin re: Protocol Relating to the
Status of Refugees (July 22, 1968); HEW, Letter to Ambassador Graham
Martin re: Protocol Relating to the Status of Refugees (July 16,
1968).
\22\ UNHCR, Key Legal Considerations on Access to Territory for
Persons in Need of International Protection in the Context of the
COVID-19 Response (Mar. 2020).
---------------------------------------------------------------------------
Several commenters stated that the rule breaches international
health regulations that bind the United States and require it to
exercise health powers with full respect for human rights. A legal
services provider commented that the international health regulations
provide for the humane treatment of migrants during a screening or
quarantine period.
Response: The United States has undertaken certain obligations
under the Refugee Protocol, which incorporates Articles 2-34 of the
Refugee Convention. Article 33 of the Refugee Convention, as understood
in U.S. law, generally precludes state parties from removing
individuals to any country where their lives or freedom would be
threatened on account of their race, religion, nationality, political
opinion, or membership in a particular social group. Congress made the
decision to implement its non-refoulement obligations under the Refugee
Protocol through the protection of statutory withholding of removal at
section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and in the Foreign
Affairs Reform and Restructuring Act (``FARRA''), to implement its CAT
non-refoulement obligations through regulations, which resulted in
withholding and deferral of removal protections under the CAT
regulations.\23\ It was Congress's deliberate decision to establish a
requirement that an alien show it is more likely than not that his or
her ``life or freedom would be threatened'' for statutory withholding
of removal, the standard designed to meet U.S. obligations under the
Refugee Protocol. The Supreme Court stated in INS v. Stevic that ``it
seems clear that Congress understood that refugee status alone did not
require [statutory] withholding of deportation, but rather, the alien
had to satisfy the [more likely than not] standard'' under statutory
withholding of removal.\24\
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\23\ Public Law 105-277, div. G, subdiv. B, title XXII, sec.
2242 (b), 112 Stat. 2681-822 (1998), codified at 8 U.S.C. 1231 note;
8 CFR 208.16(b)-(c), 208.17, 208.18; 1208.16(b)-(c), 1208.17,
1208.18.
\24\ 467 U.S. 407, 428 (1984) (citation omitted). See Cardoza-
Fonseca, 480 U.S. at 440-41.
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An alien who can demonstrate that he or she would more likely than
not face persecution on account of a protected ground or torture is
entitled to withholding of removal or, if more likely than not to be
tortured but subject to a mandatory bar to eligibility for withholding,
is entitled to CAT deferral of removal. As the Tenth Circuit has
stated, ``the Refugee Convention's non-refoulement principle--which
prohibits the deportation of aliens to countries where the alien will
experience persecution--is given full effect by the Attorney General's
withholding-only rule''.\25\ And the Ninth Circuit explained that
Article 3 of the CAT was implemented in the United States by the FARRA
and its implementing regulations.\26\ The Departments also note that
neither of these treaties is self-executing and therefore they are not
directly enforceable in the U.S. legal context except to the extent
that they have been implemented by domestic legislation.\27\
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\25\ R-S-C v. Sessions, 869 F.3d 1176, 1188 & n.11 (10th Cir.
2017); see also Cazun v. U.S. Att'y Gen., 856 F.3d 249, 257 & n.16
(3d Cir. 2017),),); Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th
Cir. 2016).
\26\ Maldonado v. Lynch, 786 F.3d 1155, 1162 (9th Cir. 2015).
\27\ Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005)
(``The 1967 Protocol is not self-executing, nor does it confer any
rights beyond those granted by implementing domestic
legislation.''); Auguste v. Ridge, 395 F.3d 123, 132 (3d Cir. 2005)
(CAT ``was not self-executing'').
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Article 33 of the Refugee Convention includes an exception from
non-refoulement obligations, similar to the section 241(b)(3)(B)(iv)
security exception, which provides that the benefit of those
obligations ``may not . . . be claimed by a refugee whom there are
reasonable grounds for regarding as a danger to the security of the
country in which he is.'' Rejection of withholding of removal claims
from aliens who would risk bringing in or further spreading a
communicable disease such as COVID-19 into the United States is
therefore consistent with the non-refoulement provisions of the Refugee
Convention and the Refugee Protocol, as national security concerns
encompass the security risks associated with an international public
health emergency like the COVID-19 pandemic, or other communicable
diseases of public health significance that may arise in the future.
Asylum under the immigration laws, on the other hand, is a
discretionary form of relief. Section 208 of the INA reflects the fact
that Article 34 of the Refugee Convention is precatory and accordingly
provides that aliens meeting the eligibility requirements for asylum
``may'' be granted asylum and contains various bases upon which an
alien meeting the definition of a refugee is
[[Page 84165]]
nonetheless ineligible to apply for or receive asylum and authorizes
the creation of new eligibility bars through regulation.\28\ The
federal judiciary has rejected arguments that the Refugee Protocol, as
implemented in domestic law, requires that every qualified refugee
receive asylum.\29\
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\28\ Article 34 states: ``The Contracting States shall as far as
possible facilitate the assimilation and naturalization of refugees.
They shall in particular make every effort to expedite
naturalization proceedings and to reduce as far as possible the
charges and costs of such proceedings.'' See also R-S-C, 869 F.3d at
1188; Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017), Cazun,
856 F.3d at 257 & n.16; Ramirez-Mejia, 813 F.3d at 241.
\29\ DHS v. Thuraissigiam, 140 S. Ct. 1959, 1965 n.4 (2020)
(``[E]ven if an applicant qualifies, an actual grant of asylum is
discretionary.''); See also Cardoza-Fonseca, 480 U.S. at 441, Grace
v. Sessions, 856 F.3d 27, 40 (1st Cir. 2017) (``[W]ithholding of
removal has long been understood to be a mandatory protection that
must be given to certain qualifying aliens, while asylum has never
been so understood'').
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The Supreme Court has ruled that while UNHCR's interpretation of
(or recommendations regarding) the Refugee Convention and Refugee
Protocol, such as set forth in the UNHCR Handbook, ``may be a useful
interpretative aid,'' \30\ it is not binding on the U.S. government,
recognizing that ``[i]ndeed, the Handbook itself disclaims such force,
explaining that `the determination of refugee status under the
[Refugee] Convention and the [Refugee] Protocol . . . is incumbent upon
the Contracting State in whose territory the refugee finds himself.' ''
\31\
---------------------------------------------------------------------------
\30\ INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999).
\31\ Id.
---------------------------------------------------------------------------
The Universal Declaration of Human Rights is a non-binding
instrument, not an international agreement; thus, it does not impose
obligations on the United States.\32\ Moreover, although it proclaims
the right of ``everyone'' to ``seek and to enjoy'' asylum, it does not
purport to state specific standards for establishing asylum
eligibility, and it certainly cannot be read to impose an obligation on
the United States to grant asylum to ``everyone.'' \33\
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\32\ Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 734-35 (2004)
(citing John P. Humphrey, The U.N. Charter and the Universal
Declaration of Human Rights, in The International Protection of
Human Rights 39, 50 (Evan Luard ed., 1967) (quoting Eleanor
Roosevelt as stating that the Declaration is `` `a statement of
principles . . . setting up a common standard of achievement for all
peoples and all nations' and `not a treaty or international
agreement . . . impos[ing] legal obligations.' '')).
\33\ Art. 14(1).
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The Departments do not agree with the commenters' assertions that
the rule is inconsistent with the International Health Regulations.
This rule implements the immigration authorities of the Departments
with respect to eligibility for asylum and withholding of removal,
rather than any public health authorities. Specifically, the rule
clarifies the Departments' understanding of the bars to eligibility for
asylum and withholding of removal based on their being reasonable
grounds for regarding or believing an alien to be a danger to the
security of the United States. The International Health Regulations do
not purport to address or govern asylum eligibility, and the
regulations specifically exclude ``security measures'' from the
definition of ``health measures.'' \34\ Accordingly, the Departments
believe the rule is sufficiently tailored to permit the U.S. government
to implement recommendations stemming from the International Health
Regulations in concert with the application of the danger to security
of the United States bars to asylum and withholding of removal in
contexts where the Secretary and Attorney General determine, in
consultation with the Secretary of Health and Human Services, per the
framework established by this rule, such recommendations are
insufficient to ensure the security of the United States. Likewise, the
Departments disagree that the International Health Regulations
otherwise bind the Departments from employing this statutory authority.
---------------------------------------------------------------------------
\34\ World Health Organization, International Health
Regulations, Art. 1 (3d ed. 2005).
---------------------------------------------------------------------------
The Departments are not making changes to the final rule in
response to these comments.
Unaccompanied Alien Children and the Trafficking Victims Protection
Reauthorization Act of 2008
Comment: Several commenters expressed concern about the proposal's
impact on unaccompanied alien children (UAC). Some commenters noted
protections provided for UAC by the Trafficking Victims Protection
Reauthorization Act of 2008 (``TVPRA''), which they argue demonstrates
a general intent by Congress to protect UAC. A legal services provider
described details of the TVPRA's provisions requiring UAC whom DHS
seeks to remove to be placed into removal proceedings under section 240
of the INA, 8 U.S.C. 1229a (``section 240 proceedings''), rather than
into expedited removal proceedings, and mandating that asylum officers
within DHS exercise initial jurisdiction over asylum applications filed
by UAC. The commenter wrote that the proposed rule could undermine
Congress' intent and deprive UAC of access to benefits such as Special
Immigrant Juvenile classification. Another commenter argued that
turning away children at the border, even if they are assessed to have
been exposed to a covered disease, would be in violation of TVPRA,
adding that they must be transferred to Office of Refugee Resettlement
custody and offered the ability to seek protection from removal. An
advocacy group commented that the proposal could deny statutorily-
protected due process rights to UAC, writing that the possibility of a
UAC being barred from asylum on the basis of passing through a country,
despite being exempted by Congress from a bar ``related to the
availability of protection'' in the same country, would be absurd. It
stated that other immigration law provisions related to public health
or medical examination do not bar eligibility for humanitarian or TVPRA
protections. It further argued that while it is true that the INA
exempts UAC from expedited removal proceedings, and thus that they
cannot be expelled from the United States before they have the
opportunity to make their case, the proposed rule would still remove
UAC's due process protections and subject them to refoulement.
Commenters argued that the NPRM is contrary to the best interests of
children generally, contravening State child welfare laws and the
Convention on the Rights of the Child. The campaign argued that the
proposal would violate UAC's right to safety by returning them to
abusers, persecutors, and traffickers for reasons outside of their
control.
Response: It is certainly true that not all of the statutory bars
to the right to apply for asylum are applicable to UAC (including INA
section 208(a)(2)(A) regarding aliens who can be removed to a safe
third country pursuant to a bilateral or multilateral agreement and INA
section 208(a)(2)(B) regarding aliens who file asylum applications more
than one year of their arrival). That said, nothing in this rule
negates the statutory rights and protections of UAC, including under
the TVPRA. For instance, UAC retain the right to apply for asylum
notwithstanding section 208(a)(2)(A)-(B) of the INA. INA 208(a)(2)(E).
Notably, however, Congress did not exempt UAC from any of the statutory
bars to asylum eligibility. As a result, UAC seeking asylum, like all
other asylum seekers, are ineligible for asylum if they are subject to
any of the mandatory bars at section 208(b)(2)(A)(i)-(vi) of the Act, 8
U.S.C. 1158(b)(2)(A)(i)-(vi)--including the danger to the security of
the United States bar--and if subject to any additional bars
implemented pursuant to the Attorney General's and the
[[Page 84166]]
Secretary's authority to establish additional limitations on asylum
eligibility by regulation. INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).
Unfortunately, UAC are not immune from pandemic disease, and those
bringing such a disease to the United States would have the same impact
on the security of the United States as any other aliens seeking
asylum.
The rule also does not curtail any other rights or protections to
which UAC are entitled under statute. As commenters note, UAC from
contiguous territories may withdraw their applications for admission
and voluntarily return if it is determined that they are not at risk of
trafficking or persecution and that they are capable of making an
independent decision to withdraw. 8 U.S.C. 1232(a)(2). All federal
agencies must transfer UAC to HHS custody within 72 hours of
determining their UAC status (absent exigent circumstances). 8 U.S.C.
1232(b)(3). UAC from non-contiguous countries whom DHS seeks to remove
must be placed in section 240 proceedings, 8 U.S.C. 1232(a)(5)(D),
where they can pursue asylum or any other relief or protection for
which they may be eligible and where immigration judges may make some
modifications to ordinary courtroom proceedings to account for their
status.\35\ If UAC do apply for asylum, including after they have been
placed into section 240 proceedings, USCIS has initial jurisdiction
over their claims. INA 208(b)(3)(C). As UAC are not amenable to
expedited removal, they will not be impacted by the reforms to the
expedited removal process contained in this rule.
---------------------------------------------------------------------------
\35\ EOIR, Operating Policies and Procedures Memorandum 17-03:
Guidelines for Immigration Court Cases Involving Juveniles,
Including Unaccompanied Alien Children (Dec. 20, 2017), https://www.justice.gov/eoir/file/oppm17-03/download.
---------------------------------------------------------------------------
Thus, the Departments are not making changes to the final rule in
response to these comments.
Public Health Service Act of 1944
Comment: A legal services provider argued that the proposed rule is
not supported by the Public Health Service Act of 1944 (``PHSA''). The
commenter wrote that, as an initial matter, the Centers for Disease
Control and Prevention's reliance on that statute in ordering the
expulsion of certain aliens is improper. The commenter cited articles
in arguing that PHSA is a quarantine law and not an immigration law,
and thus that it can only be used for the suspension of entry without
regard for immigration status rather than as an ``extrajudicial
deportation system.''
Response: The authority for this rule is contained in title 8 of
the U.S. Code's INA, not title 42's PHSA. The rule is intended to
clarify and operationalize the Departments' understanding of INA
208(b)(2)(A)(iv) and 241(b)(3)(B)(iv). Accordingly, arguments regarding
the propriety of the use of the PHSA for expulsions is outside the
context of this rule. The Departments are not making changes to the
final rule in response to these comments.
The Departments would also note that when Congress created the INA
a mere eight years after the enactment of the PHSA, it explicitly
considered and affirmed the use of the INA to protect the nation from
pandemic diseases (though in the context of a different provision, as
asylum and withholding of removal in their current forms would not
exist for many years). On April 25, 1952, during House floor
consideration of H.R. 5678, to be enacted as the (McCarran-Walter)
Immigration Act of 1952, the bill's author, Francis Walter, entered
into a debate regarding Abraham Multer's amendment (which was
decisively defeated) to limit the bill's grant to the President of the
power to bar the entry of aliens (now found at INA section 212(f)). Mr.
Multer stated that:
As the bill is presented, we find a provision . . . which
provides that at any time the President finds the entry of any
aliens or class of aliens would be detrimental to the interests of
the United States he may by proclamation suspend the entry of those
aliens. The first part of my amendment simply provides that instead
of being able to do that at any time, the President may make a
proclamation and effectuate such a suspension only in the event of a
national emergency, or a state of war.\36\
---------------------------------------------------------------------------
\36\ 98 Cong. Rec. 4423 (April 25, 1952).
---------------------------------------------------------------------------
Mr. Walter responded that:
I rise in opposition to the amendment . . . . [T]his language
``whenever the President finds that the entry of any aliens or class
of aliens in the United States would be detrimental to the interests
of the United States'' is absolutely essential because when there is
an outbreak of an epidemic in some country, whence these people are
coming, it is impossible for Congress to act. People might
conceivably in large numbers come to the United States and bring all
sorts of communicable diseases with them. . . . In the judgment of
the committee, it is advisable at such times to permit the President
to say that for a certain time we are not going to aggravate that
situation.\37\
---------------------------------------------------------------------------
\37\ Id.
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Other Comments Concerning Legal Authority
Comment: One commenter stated that ``the danger of persecution
should generally outweigh all but the most egregious of adverse
factors'' and that the proposal fails to operate by this principle.
Another cited 2011 U.S. Immigration and Customs Enforcement (``ICE'')
guidance and emphasized that that guidance interpreted the public
health removal priority narrowly and only when ``articulable'' public
safety issues were present. The commenter also cited a 2014 DHS
memorandum as providing that immigrant health concerns should result in
the delay, rather than expedition, of removal proceedings. One
commenter stated that, under the INA, asylum seekers cannot be
penalized where their country is unable or unwilling to protect them
from persecution. The commenter argued that the proposed rule would
impute the failure of a country to contain an outbreak to an individual
and thus contravene this principle.
Response: The principle that the danger of persecution should
generally outweigh all but the most egregious of adverse factors
derives from the Board of Immigration Appeals decision in Matter of
Pula,\38\ which addressed the exercise of discretion to grant or deny
asylum to an applicant who had already established eligibility for
asylum. This final rule, however, addresses a quite distinct question
by clarifying the Departments' understanding of the mandatory bars to
eligibility for asylum (and withholding of removal), not an asylum
officer's or immigration judge's exercise of discretion once an
applicant establishes such eligibility. If there are reasonable grounds
for regarding or believing an applicant to be a danger to the security
of the United States, he or she is statutorily ineligible for asylum
and withholding of removal, and the adjudicator would not have the
discretion to grant either form of protection.\39\
---------------------------------------------------------------------------
\38\ 19 I&N Dec. 467 (BIA 1987).
\39\ Moreover, the Supreme Court has determined that in
assessing the ``serious nonpolitical crime'' bar to eligibility for
withholding of removal, adjudicators need not weigh the risk of
persecution in determining the applicability of that bar, finding
that ``[a]s a matter of plain language, it is not obvious that an
already-completed crime is somehow rendered less serious by
considering the further circumstance that the alien may be subject
to persecution if returned to his home country.'' INS v. Aguirre-
Aguirre, 526 U.S. at 426.
---------------------------------------------------------------------------
The ICE guidance concerning removal priorities and the DHS
memorandum cited by the commenter are unrelated to eligibility for
asylum or withholding of removal or the interpretation of the
[[Page 84167]]
statutory bars for aliens for whom there are reasonable grounds for
regarding or believing are dangers to the security of the United
States. Finally, the rule seeks to mitigate the risk of a serious
communicable disease being brought to the United States, or being
further spread within the country, by clarifying that such public
health threats must be considered when determining whether there are
reasonable grounds for regarding or believing an alien to be a danger
to the security of the United States. The rule does not seek to
penalize asylum seekers for the action or inaction of another country,
but is rather intended to safeguard the public health and the security
of the United States. Accordingly, the Departments are not making
changes to the final rule in response to these comments.
2. Substantive Comments on Need/Rationale for the Rule
Comment: Many commenters provided input on the rationale for the
proposed rule or other feedback on whether the rule is necessary to
serve its stated goals. Several commenters claimed that its public
health claims are specious. Many commenters claimed that the rule would
block asylum eligibility on the pretext of a pandemic response, and
that the rule improperly assigns a public health risk to asylum-
seekers.
Commenters also expressed opposition on the basis that the rule
contains no objective standard for applying the proposed health
measures. Some suggested that the rule should take into account the
availability of effective treatments in applying the bars. One
criticized the rule for not taking into account whether a disease is
more prevalent in the United States than in the asylum seeker's country
of origin and that this oversight undermines the rule's rationale.
Another requested information about the empirical basis for the rule,
including the number of asylum seekers who have brought contagious
diseases into the United States, the source of that data, the effects
of those diseases on the general population, and how such a disease
could spread in the process of detention and deportation, and argued
that limiting asylum can only be justified by compelling answers to
these inquiries. Likewise, a few individual commenters stated that the
Departments must prove that asylum seekers and other immigrants embody
a substantial and direct threat to U.S. health and safety during a
pandemic.
Multiple commenters said that the Departments' justification for
the rule is at odds with the administration's messaging regarding the
severity of the COVID-19 pandemic within the United States.
Some commenters mischaracterized the rule as a travel ban rather
than a clarification as to bars to asylum and withholding of removal
eligibility. These commenters stated that the rationale for the rule is
flawed because it limits nonessential travel across the southern border
and denies entry to asylum seekers arriving by land, but grants broad
exceptions for travel by U.S. citizens, lawful permanent residents, and
people engaged in trade or education. The commenters believe that other
individuals traveling across the border are just as likely to transmit
COVID-19, and therefore questioned the Departments' logic in creating
the danger to the security of the United States bars.
Many commenters claimed that the public health objectives of the
proposed rule could be achieved through alternative means without
affecting aliens' eligibility to receive asylum or withholding of
removal. These commenters stated that the United States has existing
procedures to address communicable diseases without targeting asylum
eligibility. A few commenters argued that COVID-19 can be managed
through sensible policies, including implementing quarantine policies,
social distancing, testing, education and trainings, medical treatment,
use of personal protective equipment, and contact tracing, citing the
advice of public health experts. Similarly, a commenter suggested that
additional legal representation and medical services at the border
should be considered instead of this rule.
Many commenters suggested eliminating or altering detention
policies, or improving conditions of detention, instead of implementing
the rule. Some argued that the Departments' rationale that asylum
seekers held in congregate settings pose a risk to staff and other
detainees is pretextual because the Federal Government has the
discretion and authority to release asylum seekers and unaccompanied
minors from custody. These commenters proposed reducing the population
of aliens in detention centers by releasing aliens on bond and
encouraging them to stay with friends and family (some citing data
stating that 92 percent of asylum seekers have friends and family in
the United States with whom they could shelter) in lieu of the proposed
rule. Commenters also claimed that communicable diseases are often
designated as public health threats because they require timely
diagnosis, treatment, and contact tracing, but the rule does not
include provisions for an appropriate public health response (such as
testing, treatment, and contact tracing where appropriate). Other
commenters argued the proposed rule is pretextual because UAC are
currently being released by ICE only after they test negative for
COVID-19, citing a recent news publication.
Many commenters compared the proposed rule to other countries'
responses to the COVID-19 pandemic, stating that other countries have
adopted immigration policies that protect against the pandemic without
eliminating eligibility for asylum protection. Several commenters said
these countries prove that asylum seekers can be safely processed
during a pandemic by adopting enhanced health measures and quarantine
requirements. Another commenter argued that the proposal cannot be
justified by a lack of COVID-19 testing capacity in the United States.
Many commenters stated that COVID-19 is not a reasonable basis for
the proposed restrictions on asylum because the United States has one
of the highest per capita infection and mortality rates for COVID-19,
belying the proposed rule's claim to protect Americans from COVID-19.
Commenters cited data showing that some countries, including Canada and
Mexico, have fewer COVID-19 cases than the United States, arguing that
the rule is unnecessary because United States poses the greater threat
of spreading COVID-19. Several commenters said that the United States'
COVID-19 high infection rate makes removing asylum seekers to other
countries a significant public health threat to other countries and to
asylum seekers themselves.
Some commenters added that the diseases listed in the rule do not
pose a risk to the general public or are not subject to U.S. quarantine
laws. Other commenters argued that regulations to control the spread of
disease should not apply to treatable conditions, especially the ones
that do not pose a significant health risk to the public.
A commenter claimed that the fact that the rule creates a judicial
review process is evidence that the proposed rule uses public health as
a pretext to deny asylum and withholding of removal. This commenter
argued that because asylum seekers often remain in detention for longer
than the prescribed 7 to 10 days for judicial review, aliens would
remain at risk to contract or spread disease during this prolonged time
period. The commenter concluded the proposed rule is an ineffective
protection against the spread of disease.
[[Page 84168]]
Another commenter stated that the proposed rule cannot be justified
by the length of the adjudication process for asylum seekers. The
organization asserted that the DOJ's own policies contribute to the
immigration court backlog, including increasing the number of
respondents in removal proceedings and changing policies for asylum
seekers who are eligible for bond. The commenter concluded that the
Departments should not use the consequences of their policies as the
basis for banning the same asylum seekers from humanitarian relief.
Response: The Departments disagree that the rule lacks an objective
basis for applying the danger to the security of the United States bars
to asylum and withholding of removal. This rule specifically provides
that aliens whose entry poses a public health danger to the United
States constitute a ``danger to the security of the United States'' and
thus are 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. The bars apply to aliens whose entry poses a
heightened risk of bringing into the United States or further spreading
within our country serious contagious diseases, posing a danger to the
security of the United States, during times 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. More
specifically, the bars apply in certain delineated instances after a
communicable disease has triggered an ongoing declaration of a public
health emergency under Federal law. They also apply after the Secretary
and the Attorney General, in consultation with the Secretary of Health
and Human Services, have jointly determined that the physical presence
in the United States of aliens who are coming from areas of the world
where a communicable disease of public health significance is or was
prevalent or epidemic would cause a danger to the public health in the
United States, and they consequently jointly designated the relevant
areas and the period of time or circumstances under which it is
necessary for the public health that aliens or classes of aliens who
have come from those areas (and are still within the number of days
equivalent to the longest known incubation and contagion period for the
disease) be regarded as a danger to the security of the United States.
The Departments note that many comments referred to factors or facts
specific to the ongoing COVID-19 pandemic, but that the rule is
intended to address future pandemics and is not limited to current
circumstances.
These factors are consistent with the Attorney General's
determination 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.\40\ In that decision, the Attorney General made clear that the
``nontrivial degree of risk'' standard is satisfied where there is a
reasonable belief that an alien poses a danger.\41\ In Yusupov v.
Attorney General,\42\ the Third Circuit determined that the Attorney
General's understanding that the bar to eligibility for statutory
withholding of removal ``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.'' \43\
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.'' \44\ As discussed in
detail in the NPRM and above, epidemics and pandemics, such as the
COVID-19 crisis, pose a danger to the United States.
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\40\ Matter of A-H-, 23 I&N Dec. at 788.
\41\ Id.
\42\ 518 F.3d 185 (3rd Cir. 2008) (as amended Mar. 27, 2008).
\43\ Id. at 204.
\44\ Id.
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The Departments disagree with commenters who stated that to be
barred from eligibility asylum or withholding of removal under this
rule, the Departments must prove that an alien poses a substantial and
direct threat to the health and safety of the United States residents
during a pandemic. As explained above, the Attorney General has
clarified that the appropriate standard to apply is a ``nontrivial
degree of risk.'' Pandemics such as COVID-19 can cause serious illness
or death on a mass scale, and inflict serious, or even catastrophic,
damage to the country's economy, and thus, to the security of the
United States.
Applying the danger to the security of the United States bars to
eligibility for asylum and withholding of removal is necessary to
reduce health and safety dangers to DHS personnel and to the public. On
this, the Departments defer to the expertise of the CDC,\45\ which has
determined that the introduction into Border Patrol stations and POEs
of those aliens traveling from Canada and Mexico who are usually held
for ``material lengths of time'' in the congregate areas of these
facilities ``increases the serious danger of introducing COVID-19 to
others in the facilities--including DHS personnel, U.S. citizens, U.S.
nationals, and LPRs, and other aliens--and ultimately spreading COVID-
19 into the interior of the United States.'' \46\ The CDC based its
assessment on the fact that:
---------------------------------------------------------------------------
\45\ Courts routinely recognize the CDC's public health
expertise. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 650 (1998)
(``the views of public health authorities, such as the U.S. Public
Health Service, CDC, and the National Institutes of Health, are of
special weight and authority''); In re Approval of Judicial
Emergency Declared in Eastern District of California, 956 F.3d 1175,
1181 (9th Cir. 2020) (determining that it would not be safe to
resume normal court operations until ``the CDC lifts its guidance
regarding travel-associated risks and congregate settings and
physical distancing''); and Hickox v. Christie, 205 F. Supp. 3d 579,
598-99 (D.N.J. 2016) (relying on CDC recommendations to determine
the legality of state-mandated quarantine in light of the risk of
Ebola posed by persons entering the United States after treating
Ebola patients).
\46\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424, 56433 (final rule)
(September 11, 2020).
[T]here are structural and operational impediments to quarantining
and isolating [such] aliens in CBP facilities that neither HHS/CDC
nor CBP can overcome, especially given the large number of [such]
aliens that move through the congregate areas of the facilities.
Border Patrol stations and POEs were designed for short-term holding
of individuals in congregate settings [and were] not designed and
equipped with sufficient interior space or partitions to quarantine
potentially infected persons, or isolate infected persons. They also
are not equipped to provide on-site care to infected persons who
present with severe disease.\47\
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\47\ Id.
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CDC laid out the consequences of placing such aliens CBP facilities:
The public health risks . . . include transmission and spread of
COVID-19 to CBP personnel, U.S. citizens, lawful permanent
residents, and other persons in the POEs and Border Patrol stations;
further transmission and spread of COVID-19 in the interior; and the
increased strain that further transmission and spread of COVID-19
would put on the United States healthcare system and supply chain
during the current public health emergency.\48\
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\48\ Order Suspending the Right To Introduce Certain Persons
From Countries Where a Quarantinable Communicable Disease Exists, 85
FR 65806, 65807 (October 16, 2020) (notice).
[[Page 84169]]
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The Departments have also considered the array of alternatives
commenters argued the Departments could implement to reduce the risk of
aliens spreading communicable disease in the United States. The
Departments disagree that the rule is unnecessary because of the
availability of the alternatives posed, which include quarantines,
social distancing, testing, education and trainings, medical treatment,
use of personal protective equipment, and contact tracing.
In the context of COVID-19, the CDC has already determined these
alternatives to not be sufficient to adequately protect the public
health. The CDC has determined that ``quarantine, isolation, and
conditional release are still not workable options on the scale that
would be needed for protecting U.S. public health from the introduction
of COVID-19'' \49\ and that ``Federal Orders requiring the quarantine,
isolation, or conditional release of persons arriving into the United
States from foreign countries may be inadequate to protect public
health from the serious danger of the introduction into the United
States of a quarantinable communicable disease.'' \50\
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\49\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR at 56455.
\50\ Id. at 56526.
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As to quarantines, the CDC has concluded that:
Federal quarantine and isolation . . . where HHS/CDC funds and
operates residential facilities with 24-hour wrap-around services
for persons arriving into the United States from a foreign country
may be scalable and effective for hundreds of persons, but not
thousands of them. Even then, Federal quarantine and isolation
require substantial resources and are not sustainable for extended
periods of time.\51\
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\51\ Id.
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A Federal quarantine and isolation of covered aliens would have
likely required the procurement or construction and equipping of
numerous permanent or temporary facilities across the Northern and
Southern land borders, in close proximity to the POEs and Border
Patrol stations. The facilities would have to accommodate a rotating
population of covered aliens--including family units, single adults,
and children with varying countries of origin, social customs, and
criminal histories--for the duration of each covered alien's
quarantine or isolation period. During that period, HHS/CDC and CBP
would have to shelter, feed, and provide medical services to each
covered alien onsite. The burden of undertaking such a joint public
health and safety mission across thousands of miles of territory
during a pandemic is impracticable. [T]o the knowledge of HHS/CDC,
the largest Federal quarantine and isolation operation in modern
U.S. history is the one that HHS/CDC and other agencies conducted in
early 2020 [in response to COVID-19] for the approximately 3,200
persons who disembarked from cruise ships in U.S. ports or were
repatriated from Asia. That operation would have been dwarfed by an
ongoing quarantine and isolation mission for covered aliens. . . .
HHS/CDC and CBP could not have . . . . quarantined or isolated a
daily average population of 3,292 covered aliens from March 21, 2020
to the present. The relevant agencies simply lack the personnel and
resources to operate such a large and complex Federal quarantine and
isolation program, spread over thousands of miles of territory, and
a period of many months, during a global pandemic. This is
especially true when HHS/CDC and CBP must prioritize their finite
resources for the benefit of the public health and safety,
respectively, of the domestic population.\52\
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\52\ Id. at 56433. The CDC noted that ``the Federal government
no longer operates Public Health Service hospitals capable of acting
as dedicated quarantine and isolation facilities able to house
hundreds of people for multiple weeks. The securing of sites was
challenging because when the agencies identified suitable
facilities, local officials sometimes objected to the use of the
facilities.'' Id. at 56430.
The Departments also disagree with suggestions that increased
testing of aliens could serve as an adequate alternative to the rule.
In many cases, it is not possible to know whether an individual is
infected at the time of processing or apprehension. Where testing is
available, the time frame required to obtain test results may both be
operational unfeasible and expose DHS officers, other aliens, and
domestic communities to possible infection while results are pending.
---------------------------------------------------------------------------
The CDC concluded that:
HHS/CDC considered whether it could avert the serious danger of
the introduction of COVID-19 into CBP facilities through COVID-19
testing. Specifically, HHS/CDC considered the asymptomatic
transmission of COVID-19; the lack or limited availability of
diagnostic testing for COVID-19; the time required to obtain
diagnostic test results; the need to prioritize testing resources
for the domestic population . . . . In any pandemic caused by a
novel virus that spreads asymptomatically there will be a period
when diagnostic testing is not widely available due to the time
necessary to create, manufacture, distribute, administer, and
receive the results of diagnostic tests. Even then, it may be
appropriate to prioritize diagnostic testing for some populations
over others, and diagnostic testing may produce at least some false
negatives.\53\
---------------------------------------------------------------------------
\53\ Id. at 56433-34 n.70.
---------------------------------------------------------------------------
In congregate settings, travelers infected with a quarantinable
communicable disease (whether asymptomatic or symptomatic) may
spread the disease to other travelers or government personnel or
private sector workers who may, in turn, spread disease to the
domestic population. In such a scenario, the subsequent separation
of the original, infected traveler would not mitigate the spread of
disease through other individuals who interacted with the traveler
in the congregate setting.\54\
---------------------------------------------------------------------------
\54\ Id. at 56426.
The Departments disagree with commenters' suggestions that public
health interests would be better served if the Departments eliminated
detention pending proceedings. The INA requires that all aliens placed
into expedited removal proceedings are subject to mandatory detention
from the commencement of proceedings until their credible fear
interviews, INA 235(b)(1)(B)(iii)(IV), subject to mandatory detention
if found not to have a credible fear, id., and also subject to
mandatory detention if found to have a credible fear ``for further
consideration of their application for asylum'' in asylum-and-
withholding-only proceedings. Such aliens can be released by paroling
them pursuant to section 212(d)(5) of the INA or on bond.\55\ As
explained in the NPRM, once a non-detained alien is placed into such
proceedings, it can be months or years before their cases are
adjudicated, as immigration courts in EOIR have a backlog of more than
1,000,000 pending cases, at least 517,000 of which include an asylum
application. Of those released, many simply abscond without pursuing
their asylum claims. There were 595,430 fugitive aliens at the end of
fiscal year 2019.\56\ In 2003, DOJ's Inspector General issued a report
that found that the former INS had successfully carried out removal
orders with respect to only 13 percent of non-detained aliens who were
subject to final removal orders--and was able to remove only three
percent of non-detained aliens who had unsuccessfully
[[Page 84170]]
sought asylum.\57\ Recent initiatives to track family unit cases
revealed that close to 82 percent of completed cases have resulted in
an in absentia order of removal. It has been reported that EOIR's
immigration courts have higher failure to appear rates than any other
state or federal courts in the country.\58\ In fiscal year 2017, 44
percent of never detained aliens, 41 percent of released aliens, and 49
percent of unaccompanied alien minors (who have generally been released
to sponsors, 8 U.S.C. 1232(c)(2)-(3)) who received removal orders
received them in absentia for failing to appear.\59\ Even putting aside
the issue of absconders, releasing aliens with a communicable disease
from detention merely transfers the risk from DHS officers and other
detainees to the general public.
---------------------------------------------------------------------------
\55\ In Matter of X-K-, 23 I&N Dec. 731, 736 (BIA 2005), the BIA
concluded that arriving aliens at POEs found to have a credible fear
and placed into section 240 proceedings were subject to mandatory
detention, but those apprehended between POEs were eligible for
bond. The Attorney General overruled Matter of X-K- in Matter of M-
S-, 27 I&N Dec. 509 (A.G. 2019), and determined that all aliens
found to have a credible fear were subject to mandatory detention
(and thus only releasable on parole). However, in Padilla v. ICE,
953 F.3d 1134, 1143 (9th Cir. 2020) (petition for cert. filed Aug.
24, 2020), the Ninth Circuit upheld a district court's grant of a
nationwide preliminary injunction requiring, in part, that all
aliens found to have a credible fear be eligible for a bond hearing
and possible release (not through parole) on bond.
\56\ Enforcement and Removal Operations, ICE, U.S. Immigration
and Customs Enforcement Fiscal Year 2019 Enforcement and Removal
Operations Report at 10. Alien fugitives are those who had failed to
leave the United States based upon a final order of removal or who
had failed to report to ICE after receiving notice to do so. Id. at
10 n.9.
\57\ Office of the Inspector General, Evaluation and Inspections
Division, DOJ, The Immigration and Naturalization Service's Removal
of Aliens Issued Final Orders (I-2003-004) at i, ii (2003).
\58\ Mark Metcalf, U.S. Immigration Courts & Aliens Who
Disappear Before Trial, 2019 Center for Immigration Studies at 1, 7-
8 n.1-2.
\59\ Planning, Analysis & Statistics Division, EOIR, DOJ,
Statistics Yearbook: Fiscal Year 2017, at 33 (figure 25).
---------------------------------------------------------------------------
The Departments also reject the notion of stopping or reducing the
enforcement of immigration laws as a means of reducing the strain on
the nation's immigration system. The solution is not to ignore the rule
of law but to find ways to promote compliance with the law and to
increase the efficiency of the nation's immigration system.
As to simply allowing aliens to reside with friends and family
pending their asylum-and-withholding-only proceedings, this would
reduce the transmission of disease within detention centers themselves.
However, as the CDC concluded, such a practice would merely transfer
the risk from DHS officers and other detainees to the general public
and could exacerbate community spread within the interior. The CDC has
also found that:
[I]t is not reasonable to assume that all . . . aliens [entering the
United States illegally or without proper documents, who would need
to be placed in congregate setting,] can or will comply with
conditional release orders or safely self-quarantine or self-isolate
after introduction into the country. That has not been HHS/CDC's
experience with foreign nationals arriving in the United States on
commercial flights, which require valid travel documents and
clearance of customs. Even some foreign nationals who produce valid
travel documents, fly internationally, and clear customs do not
comply with self-quarantine or self-isolation protocols, or provide
contact information to HHS/CDC for use in public health monitoring
and contract tracing investigations. . . . Persons who are
unprepared to comply with U.S. legal processes and lack
transportation and a permanent U.S. residence would likely encounter
difficulties complying with conditional release orders or self-
quarantine or self-isolation protocols. For such orders or protocols
to be effective, persons who HHS/CDC temporarily apprehends and then
conditionally releases with orders--or, alternatively, persons to
whom HHS/CDC recommends self-quarantine or self-isolation--must be
able to travel to suitable quarantine or isolation locations, and
then quarantine or isolate for the time period prescribed or
recommended by HHS/CDC. Many [aliens entering the United States
illegally or without proper documents, who would need to be placed
in congregate settings,] would have to overcome significant hurdles
to meet those basic requirements. Moreover, implementation of
conditional release orders for covered aliens would divert
substantial HHS/CDC resources away from existing public health
operations during the COVID-19 pandemic. . . .
To implement conditional release orders for covered aliens, HHS/
CDC would have to open and operate new quarantine stations at
numerous Border Patrol stations and POEs, surge technical support to
CBP at the same locations, or do some combination of both. HHS/CDC
would also have to monitor the health of tens of thousands of . . .
aliens introduced into the United States, and alert public health
departments about any health issues that need follow-up. HHS/CDC
does not have resources and personnel available to execute those
additional functions; HHS/CDC would have to reallocate personnel
from existing quarantine operations, which would jeopardize the
effectiveness of those operations, endanger public health, and
impose additional costs on U.S. taxpayers.\60\
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\60\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR at 56452-53.
Further, the Departments strongly disagree with comments that
suggested the rule is pretextual, unnecessary, or ineffective because
of the high rate of COVID-19 infections in the United States. Rather,
the Departments defer to the expertise of the CDC, which has concluded
that the introduction of additional cases, in addition to threatening
the health and safety of DHS officers and other aliens, could
exacerbate the spread of disease in the general public and further
strain medical providers in many communities, presenting a serious
threat to the security of the United States. As the CDC has stated,
``even if persons or property in the United States are already infected
or contaminated with a quarantinable communicable disease, the
introduction of one or more additional persons capable of disease
transmission in the same or different localities can nevertheless
present a serious danger of the introduction of the disease into the
United States'' \61\ and ``helping to slow the community transmission
of COVID-19 and the number of new COVID-19 cases in the States in the
U.S.-Mexico border region . . . helps protect the domestic population
from COVID-19.'' \62\ For these reasons, the Departments see no need to
provide additional empirical data, as requested by commenters,
regarding the number of asylum seekers who have brought contagious
diseases into the United States, the source of that data, the effects
of those diseases on the general population, and how such a disease
could spread in the process of deportation, including while an alien is
in ICE custody. In addition, ``arbitrary and capricious'' review is
``highly deferential, presuming the agency action to be valid.'' \63\
It is ``reasonable for the [agency] to rely on its experience'' to
arrive at its conclusions, even if those conclusions are not supported
with ``empirical research.'' \64\
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\61\ Id. at 56454.
\62\ Id. at 56456.
\63\ Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010)
(citing Motor Vehicle Mfrs Ass'n v. State Farm Mut. Auto Ins. Co,
463 U.S. 29, 43 (1983)).
\64\ Id. at 1069.
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The Departments also disagree with commenters who argued that the
fact that other countries have not curtailed asylum eligibility because
of the COVID-19 pandemic proves that the NPRM is unnecessary or
pretextual. The Departments are utilizing longstanding authority under
domestic law to mitigate the danger of aliens bringing into the United
States or exacerbating the spread within the United States of a serious
contagious disease and thereby mitigate a threat to the security of the
United States. It is outside the scope of this rule to evaluate the
availability of legal tools to foreign governments regarding
restricting asylum eligibility based on a threat to the national
security. Further, the Departments disagree with comments that state
that the risk of spreading a contagious disease or illness to the
alien's home country or country of removal outweighs the Federal
government's interest in preventing or mitigating potentially
catastrophic harm to the health and security of the United States or is
even a relevant consideration in interpreting the applicability of
section 208(b)(2)(A)(iv) or section 241(b)(3)(B)(iv) of the INA, which
are solely focused on the danger to the security of the United States.
As the CDC has concluded, the ``faster a[n alien who will be placed in
a congregate setting] is returned . . . the lower the
[[Page 84171]]
risk the alien poses of introducing transmitting, or spreading COVID-19
into POEs, Border Patrol stations, other congregate settings, and the
interior [of the United States].'' \65\
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\65\ Notice of Order Under Sections 362 and 365 of the Public
Health Service Act Suspending Introduction of Certain Persons From
Countries Where a Communicable Disease Exists, 85 FR 17060, 17067
(Mar. 20, 2020).
---------------------------------------------------------------------------
Some commenters opposed the NPRM because they believed that the
diseases referred to in the NPRM do not present a significant risk to
the general public or are treatable. To the contrary, the diseases are
serious by any measure. The term ``communicable disease of public
health significance'' includes any of the following diseases:
(1) Communicable diseases as listed in a Presidential Executive
Order, as provided under Section 361(b) of the Public Health Service
Act. . . .\66\
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\66\ The current list of quarantinable communicable diseases is
available at http://www.cdc.gov and http://www.archives.gov/federal-register.
---------------------------------------------------------------------------
(2) Communicable diseases that may pose a public health
emergency of international concern if it meets one or more of the
factors listed in [42 CFR] Sec. 34.3(d) and for which the Director
has determined a threat exists for importation into the United
States, and such disease may potentially affect the health of the
American public. . . .
(i) Any of the communicable diseases for which a single case
requires notification to the World Health Organization (WHO) as an
event that may constitute a public health emergency of international
concern, or
(ii) Any other communicable disease the occurrence of which
requires notification to the WHO as an event that may constitute a
public health emergency of international concern. . . .
(3) Gonorrhea.
(4) Hansen's disease, infectious.
(5) Syphilis, infectious.
(6) Tuberculosis, active.\67\
---------------------------------------------------------------------------
\67\ 42 CFR 34.2(b).
---------------------------------------------------------------------------
Under section 1 of Executive Order 13295, as amended:
Based upon the recommendation of the Secretary of Health and
Human Services . . ., in consultation with the Surgeon General . . .
the following communicable diseases are hereby specified pursuant to
section 361(b) of the [PHSA]:
(a) Cholera; Diphtheria; infectious Tuberculosis; Plague;
Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa,
Marburg, Ebola, Crimean-Congo, South American, and others not yet
isolated or named).
(b) Severe acute respiratory syndromes, which are diseases
[other than influenza] that are associated with . . . pneumonia or
other respiratory illness, are capable of being transmitted from
person to person, and that either are causing, or have the potential
to cause, a pandemic, or, upon infection, are highly likely to cause
mortality or serious morbidity if not properly controlled. . . .
In addition, the bars will only apply (1) to communicable diseases
that have triggered an ongoing declaration of a public health emergency
under Federal law, and (2) where the Secretary and the Attorney General
have, in consultation with HHS, jointly determined that, because a
communicable disease of public health significance (in accordance with
HHS regulations) is prevalent or epidemic in an area of the world, the
physical presence in the United States of an alien or a class of aliens
who have come from such area during a period in which the disease is or
was prevalent or epidemic there would cause a danger to the public
health in the United States, and have consequently designate the place,
the period of time, or circumstances under which they deem it necessary
for the public health that such alien or class of aliens be regarded as
a danger to the security of the United States. The Departments believe
this framework provides the Departments sufficient flexibility to apply
the bars in cases of potential future pandemics or public health crises
while ensuring that the bars are only applied in situations that
present a public health crisis sufficient to threaten the security of
the United States.
In addition, the Departments disagree that the availability of
treatment is an adequate marker to determine whether a contagious
disease poses a threat to the security of the United States such that
the bar to asylum and withholding of removal should apply. Treatment
may only, and to a partial extent at that, ameliorate symptoms without
curing a disease, and may be prohibitively expensive or resource-
intensive.
The Departments note that as to the ``judicial review protocol,''
it is prescribed by statute and is not something the Departments
created through regulation. Section 235(b) of the INA, 8 U.S.C.
1225(b), provides that:
The Attorney General shall provide by regulation and upon the
alien's request for prompt review by an immigration judge of a
determination . . . that the alien does not have a credible fear of
persecution. Such review shall include an opportunity for the alien
to be heard and questioned by the immigration judge, either in
person or by telephonic or video connection. Review shall be
concluded as expeditiously as possible, to the maximum extent
practicable within 24 hours, but in no case later than 7 days after
the date of the determination . . . .
The Departments disagree with comments suggesting that the rule's
rationale is flawed because the United States has been allowing certain
classes of individuals to travel to the United States and because the
rule does not apply to U.S. citizens, lawful permanent residents, and
people engaged in trade and education. Of course, only aliens may
receive asylum and withholding of removal. Aliens seeking asylum or
withholding of removal, including aliens with a lawful immigration
status, are subject to the bar, which the Departments have put in place
to protect the United States from those who are determined to be a
danger to the Nation's security.\68\
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\68\ When evaluating aliens' eligibility for asylum and
withholding of removal, this rule does not apply the public health
bars to those aliens who file such an application upon return from
Canada pursuant to the U.S.-Canada safe third country agreement.
---------------------------------------------------------------------------
Finally, the Departments disagree that protecting the security of
the United States is inconsistent with the administration's messaging
regarding the COVID-19 pandemic and decline to further respond on the
basis that such messaging is outside the scope of this rule.
E. Proposed Changes to the Rule
1. Clarifying Application of ``Danger to the Security of the United
States'' Bars to Eligibility for Asylum and Withholding of Removal
Categorical Nature of the Bars
Comment: One commenter stated that denying asylum seekers
``categorically'' would contravene the intent of U.S. immigration law
and especially the Refugee Act. Relying on the plain language of the
statute, a legal services provider argued that the proposal exceeds its
statutory authority by potentially barring, without time limitation,
thousands of individuals on a class-wide basis who pose no risk to the
United States. Similarly, a group of commenters cited Grace v.
Whitaker,\69\ and an advocacy group provided citations to additional
cases, in arguing that asylum determinations must be made on an
individualized basis. Other commenters argued that no individualized
determination would be possible under the NPRM as it instructs
adjudicators that they ``may consider'' symptoms and travel history for
a determination as to whether an alien is subject to the danger to the
security of the United States bars and simultaneously instructs
adjudicators that the Secretary of Homeland Security and the Attorney
General have already ``deem[ed]'' entire classes of individuals to be
regarded as a danger to the security of the United States. More
specifically, commenters argued that:
[[Page 84172]]
``[p]roposed 8 CFR 208.13(c)(10) and 1208.13(c)(10) do not provide
clear guidance as to whether adjudicators are required to apply an
individualized or a categorical bar, and in some circumstances appears
to entirely remove discretion from adjudicators and require a blanket
determination that a person be subject to the bar, without an
individualized determination.''
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\69\ 344 F. Supp.3d 96 (D.D.C. 2018), aff'd in part and vacated
in part by Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020).
---------------------------------------------------------------------------
Response: The commenters raised a valid concern that the NPRM did
not provide sufficiently clear guidance as to whether adjudicators are
required to apply the proposed bars in an individualized or categorical
fashion. Of course, all statutory bars to eligibility, including the
danger to the security of the United States bars, for asylum and
withholding of removal are ``categorical,'' in that any alien to whom
they apply is ineligible for asylum.'' As to asylum, ``[p]aragaph (1)
[describing which aliens may be granted asylum] shall not apply to an
alien if the [Secretary or the] Attorney General determines that . . .
.'' INA 208(b)(2)(A), 8 U.S.C. 208(b)(2)(A) (emphasis added). As to
withholding of removal, ``[s]ubparagraph (A) [describing which aliens
may not be removed to a country where their life or freedom would be
threatened] does not apply to an alien . . . if the [Secretary or the]
Attorney General decides that . . . .'' INA 241(b)(3)(B), 8
U.S.C.(b)(3)(B) (emphasis added). The parameters under which an alien
is considered ineligible for asylum and withholding of removal in order
to protect law enforcement officers and the public during a public
health crisis are ones that should be decided by the Secretary and the
Attorney General, taking into consideration the advice of governmental
experts, not individual officials or adjudicators on an ad hoc basis.
The role of individual officials and adjudicators should be to
determine whether aliens in fact meet the criteria for ineligibility
that have been set forth to protect our country.
Therefore, the final rule clarifies that the bars established by
the rule (implementing the Departments' understanding of the danger to
the security of the United States bars) are ``categorical'' in the
following manner. First, if a communicable disease has triggered an
ongoing declaration of a public health emergency under Federal law,
such as 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, then an alien is ineligible for asylum and withholding of
removal (on the basis of there being reasonable grounds for regarding
the alien as a danger to the security of the United States) if the
alien either exhibits symptoms indicating that he or she is afflicted
with the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate, or has come into contact with the disease, per
guidance issued by the Secretary or the Attorney General, as
appropriate.
Second, if, regarding a communicable disease of public health
significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly
Determined that the physical presence in the United States
of aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or who have embarked at a place or
places where such disease is prevalent or epidemic (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
Designated the foreign country or countries (or one or
more subdivisions or regions thereof), or place or places, and the
period of time or circumstances under which they jointly deem it
necessary for the public health that aliens or classes of aliens
described in the first bullet point who were present in an impacted
region within the number of days equivalent to the longest known
incubation and contagion period for the disease be regarded as a danger
to the security of the United States, including any relevant exceptions
as appropriate,
Then, an alien or class of aliens are ineligible for asylum and
withholding of removal (on the basis of there being reasonable grounds
for regarding the alien or class of aliens as a danger to the security
of the United States) if the alien or class of aliens are described in
the first bullet point and are regarded as a danger to the security of
the United States as provided in the second bullet point.
While the discretionary/categorical distinction was not discussed
in the NPRM, as the D.C. Circuit ruled in Nat'l Mining Ass'n v. Mine
Safety and Health Admin:
An agency's final rules are frequently different from the ones
it published as proposals. The reason is obvious. Agencies often
``adjust or abandon their proposals in light of public comments or
internal agency reconsideration.'' . . . Whether in such instances
the agency should have issued additional notice and received
additional comment on the revised proposal ``depends, according to
our precedent, on whether the final rule is a `logical outgrowth' of
the proposed rule.'' . . . While we often apply the doctrine simply
by comparing the final rule to the one proposed, we have also taken
into account the comments, statements and proposals made during the
notice-and-comment period. . . . In South Terminal Corp. v. EPA, the
case that gave birth to the ``logical outgrowth'' formulation, the
court did the same. 504 F.2d 646, 659 (1st Cir. 1974). The court
held that the final rule was ``a logical outgrowth''-not simply of
the proposed rule--but ``of the hearing and related procedures''
during the notice and comment period.\70\
---------------------------------------------------------------------------
\70\ 512 F.3d 696, 699 (D.C. Cir. 2008) (citations omitted).
As the Circuit had realized earlier in Int'l Harvester Co. v.
Ruckelshaus,\71\ ``[a] contrary rule would lead to the absurdity that
in rule-making under the [Administrative Procedure Act] the agency can
learn from the comments on its proposals only at the peril of starting
a new procedural round of commentary.''
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\71\ 478 F.2d 615, 632 n.51 (D.C. Cir. 1973).
---------------------------------------------------------------------------
As illustrated by the thoughtful comments the Departments received
highlighting the need to clarify whether the NPRM was discretionary or
categorical, the clarification in the final rule meets any ``logical
outgrowth'' requirements under the APA.
Applicability to Aliens Who Are Applying for Asylum or Withholding of
Removal in the United States Upon Return From Canada (Pursuant to the
Agreement Between the Government of the United States and the
Government of Canada for Cooperation in the Examination of Refugee
Status Claims From Nationals of Third Countries)
Comment: Several commenters cited litigation in Canada surrounding
the ``safe third country'' agreement between the United States and
Canada and noted that a Canadian federal court found the agreement to
be unconstitutional. One commenter stated that if published, this final
rule would further damage the reputation of the United States as a
leader in providing humanitarian protection.
Response: The Departments note that maintenance of the United
States' reputation as a leader in providing humanitarian protection
must not eclipse the importance of maintaining a strong and effective
safe third country agreement with our Canadian partners. Accordingly,
this rule provides for an exemption for those aliens who apply for
asylum or withholding of removal upon return from Canada to the United
States pursuant to the U.S.-Canada safe third country agreement.
[[Page 84173]]
Level of Danger Required To Invoke the Danger to Security Bars to
Asylum and Withholding of Removal
Comment: Several commenters argued, citing Yusupov v. Att'y Gen. of
U.S., that the danger to the security of the United States bars to
eligibility for asylum and withholding of removal may only be applied
to an applicant who poses an ``actual'' threat rather than a possible
or potential threat or to one who ``may'' pose a danger. The commenters
contend that the rule is impermissibly broad because it applies the
bars to those who do not actually carry a communicable disease,
contrary to the actual threat standard.
One commenter also wrote that Yusupov requires that security bars
apply only in a narrow set of circumstances and that, given the
widespread nature of the COVID-19 pandemic even within the United
States, the proposal contravenes this requirement. The commenter
further asked that the Departments demonstrate how border enforcement
personnel face a higher risk from asylum seekers than from others those
officials regularly encounter in their own communities and how finding
an applicant ineligible for asylum would reduce the risk to enforcement
personnel. Another legal services provider wrote that the Departments'
focus on the probable cause standard is a ``distraction'' and cannot
allow the Departments to rely on a potential risk rather than an actual
one as the grounds for a security bar. A professional association
expressed worry that the proposed rule could apply an asylum bar to an
applicant on the basis of a probable cause standard and using evidence
that does not meet the standard of admissibility for court proceedings.
Additionally, commenters argued that the mere potential exposure of
an asylum seeker to a disease or the untrained opinion of a non-expert
adjudicator of a person's symptoms could not provide a reasonable basis
for barring the applicant from eligibility for asylum.
Another commenter added that the threat posed by an individual
asylum applicant's health falls below the ``non-trivial'' standard set
forth in Matter of A-H-,\72\ arguing that the threat of migrants must
be viewed individually.
---------------------------------------------------------------------------
\72\ Matter of A-H-, 23 I&N Dec. 774, 788 (A.G. 2005).
---------------------------------------------------------------------------
Response: The Departments fully acknowledge that an alien must
actually pose the requisite level of danger, noting the Ninth Circuit's
conclusion that ``[t]he bottom line in Yusupov, which we adopt, is that
. . . the alien must `actually pose a danger' to United States security
. . . .'' \73\ However, as the Departments stated in the NPRM, it also
must be recognized that the danger posed by aliens during a pandemic is
unique. In many cases it will not be possible to know whether any
particular individual is infected at the time of apprehension or
application. As the CDC has explained, depending on the disease at
issue, 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. In
conclusion, an alien who arrives from a location in which the spread of
a communicable disease already poses a serious danger and who will need
to be placed in a congregate setting represents on their own a danger
to the security of the United States.
---------------------------------------------------------------------------
\73\ Malkandi v. Holder, 576 F.3d 906, 914 (9th Cir. 2009).
---------------------------------------------------------------------------
Of course, this rule cannot eliminate all risk that border
enforcement personnel may face in their communities related to a
communicable disease of public health significance. It is not designed
to do so, nor could it. The final rule is designed to ameliorate the
specific risk identified by the CDC of their being placed in close
personal contact in congregate settings with aliens at a heightened
risk of infection.
Finally, the Departments reject that reliance on the probable cause
standard is a ``distraction.'' It is the legal standard set forth in
binding precedent and is necessary to understand the ``reasonable
grounds'' component of the danger to the security of the United States
bars to eligibility for asylum and withholding of removal. In Matter of
A-H-, the Attorney General determined that ``reasonable'' in the
context of the danger to the security of the United States bar to
withholding of removal ``implied the use of a `reasonable person'
standard'' that was ``substantially less stringent than preponderance
of the evidence,'' and instead akin to ``probable cause.'' \74\ 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.'' \75\
---------------------------------------------------------------------------
\74\ 23 I&N Dec. at 788-89.
\75\ Id. at 789 (citation omitted).
---------------------------------------------------------------------------
Accordingly, the Departments are not making changes to the final
rule in response to these comments.
Public Health Concerns as a Basis for Finding ``Danger to the Security
of the United States'' or Otherwise Bar Eligibility for Asylum
Comment: Several commenters argued that public health concerns
should not be a basis for denying asylum or for finding reasonable
grounds for regarding an applicant to be a danger to the security of
the United States. Some commenters argued that the rule exceeds the
Departments' authority, as only Congress can expand upon the ``danger
to security'' bar or define the bounds of asylum eligibility.
Commenters contended that section 208(b)(2)(C) of the INA does not give
the Departments authority to add new bars to asylum eligibility and
that the INA unambiguously defines ``dangers to the security of the
United States'' without reference to public health and thus that the
NPRM is an unlawful attempt to expand the statute.
Commenters also argued that section 208 of the INA intentionally
omits public health concerns as a basis of denial (such as by not
incorporating the INA's health-related inadmissibility grounds, INA
212(a)(1), 8 U.S.C. 1182(a)(1), as a basis for finding an alien
ineligible for asylum) and that when Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(``IIRIRA'') it could have defined the danger to the security of the
United States bar, but chose not to do so. One commenter cited
dictionary definitions of ``reasonable'', ``danger'', and ``security''
to argue that the proposed rule contravenes the INA. Another argued
that the NPRM is unjust and inconsistent with the character of the INA
in that it applied a bar based on a factor outside of an asylum
seeker's control.
Another commenter argued that the ``expresio unis'' canon of
construction, whereby when multiple items of a category are expressly
mentioned, others in the same class are excluded, leads to the
conclusion that because the three statutory bars to applying for
asylum, INA 208(a)(2), do not include public health concerns, such
concerns should not bar an alien from being able to apply for asylum.
Another commenter argued more generally that the NPRM violates section
208(a)(1) of the INA, which guarantees the right of every alien
physically present in the United States to apply for asylum, by denying
asylum seekers who arrive in the United States the right to seek
refuge.
Other commenters argued that the danger to the security of the
United
[[Page 84174]]
States bars should only be read to apply to criminal and/or terrorist-
related concerns, one arguing that because other mandatory bars to
asylum found in INA 208(b)(2)(A) include references to crimes, the term
danger to the security of the United States must be read narrowly to
involve considerations of criminal threats or intentional harm to
others rather than for any type of harm. The commenter cited the
``ejusdem generis'' canon of construction whereby when ``a more general
term follows more specific terms in a list, the general term is usually
understood to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.'' Several commenters argued
that the bars should be limited to terrorism-related threats and that
the proposed rule misinterprets Matter of A-H-, reasoning that
``economic interests'' should be understood as economic interests that
could be targeted by terrorists, not those affected by public health
concerns. Another group of commenters stated that nothing in the INA
permits a definition of ``economic interests'' which includes public
health concerns.
Response: The Departments disagree with comments stating that
public health concerns cannot constitute reasonable grounds for
regarding or believing an alien as a danger to the security of the
United States. As then-Secretary of Homeland Security, Michael
Chertoff, stated in 2006, ``[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.'' \76\ 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.\77\
For example, 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.\78\
---------------------------------------------------------------------------
\76\ 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.
\77\ 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).
\78\ See id.
---------------------------------------------------------------------------
The Departments reject the argument that because the statutory bars
to eligibility for asylum and withholding of removal do not
specifically reference the health-related inadmissibility grounds found
at section 212(a)(1)(A) of the INA, that no public health concerns can
be considered in assessing an applicant's potential danger to the
security of the United States. This rule was never designed to
incorporate all these health-related grounds--which can make an alien
inadmissible as a result of the lack of immunization, physical or
mental disorders that may pose or have posed a threat to the property,
safety, or welfare of the alien or others, and drug abuse and
addiction--into the bars to eligibility for asylum and withholding. It
is only in limited circumstances involving declared Federal public
health emergencies or joint determinations by the Secretary of Homeland
Security and Attorney General that aliens coming from areas of the
world where a communicable disease of public health significance is
prevalent or epidemic would constitute a danger to public health and
that an asylum or withholding applicant would be considered to pose a
danger to the security of the United States. Similarly, the Departments
reject commenters' arguments that because the asylum bars do not
specifically mention public health concerns, that the bar regarding
danger to the security of the United States should be interpreted to
exclude such concerns.
Additionally, the rule does not contravene section 208(a)(1) of the
INA since it does not create a bar to applying for asylum. Rather, it
clarifies the Departments' understanding of a longstanding statutory
bar to asylum eligibility. Finally, the bars to applying for asylum at
section 208(a)(2) and the bars to asylum eligibility at section
208(b)(2) in fact do include factors that are outside an applicant's
control or ``categorical,'' such as the existence of a safe third
country agreement. INA 208(a)(2)(A).
The Departments are not making changes to the final rule in
response to these comments.
Guidance and Training for Officers Determining Application of the Bars
2. Application of the Danger of the Security of the United States Bars
in Credible Fear Screenings in the Expedited Removal Process
Comment: Several commenters expressed concern about applying the
danger to the security of the United States bars at the credible fear
stage, where previously negative credible fear determinations could not
be based on aliens being subject to such bars. Commenters argued that
this would deny individuals with a well-founded fear of persecution the
opportunity to establish their eligibility for humanitarian protection,
that it would eliminate all exercise of judgement or discretion, and
make it nearly impossible to disprove the application of the bars,
which deprives asylum seekers of the opportunity to seek asylum in
court before an immigration judge.
Other commenters argued that the proposed rule is ultra vires by
creating an ``infectious disease'' bar to asylum and withholding of
removal that would disqualify applicants at the credible fear stage,
when such individuals (even if infected with COVID-19 at the time of
arrival) would be unlikely to remain infectious by the time of
adjudication of their applications for asylum or withholding of
removal. They argued that the NPRM would not protect border security
personnel from a communicable disease or prevent spread in border
facilities or the community, because the period when an applicant is
most likely to spread a communicable disease is during the credible
fear process (including the credible fear interview and review by an
immigration judge) that can take from seven to ten days. The commenters
stated that this timeline was not sufficiently addressed in the
proposed rule and expressed concern that CBP and ICE would continue
holding individuals in ``congregate settings'' during the credible fear
process, a practice that would put many others at risk prior to the
application of the NPRM's changes to the credible fear process. The
commenters also questioned why DHS could not test each asylum seeker
upon apprehension and provide results within the time required for a
credible fear interview and review by an immigration judge.
An individual commenter asked several questions about the
procedural steps that would be involved should asylum seekers stop
exhibiting the perceived symptoms that led to a determination that they
may have COVID-19. Specifically, the commenter asks whether an
immigration judge could overturn a negative credible fear finding and
whether the BIA could overturn a denial of asylum when the applicant
has ceased exhibiting the symptoms that were the basis of the
determination.
Another commenter argued that the agencies' assertion that the
NPRM's impact on time spent making and reviewing screening decisions
``would be minimal'' was incorrect because
[[Page 84175]]
adding the consideration of a danger to the security of the United
States bars in the screening process would ``exponentially increase the
length and complexity of the adjudication.'' Another legal services
provider expressed concern that the proposal's anticipation of
``minimal'' review time indicates the review will be ``cursory and not
appropriately detailed.''
Response: The rule does not create an ``infectious'' or
``communicable'' disease bar to asylum and withholding of removal.
Rather, the rule clarifies the Departments' understanding of the
existing statutory bars regarding aliens who are reasonably regarded to
be dangers to the security of the United States.
The Departments acknowledge that an applicant may be most likely to
spread a communicable disease upon and soon after arrival, which
coincides with the period in which an alien placed into expedited
removal proceedings would be going through credible fear screening.
However, this is not always true. As the CDC has stated, there is an
``ever-present risk that future pandemics may present new or different
challenges . . . . A new virus could have a longer incubation period
than . . . the virus that causes COVID-19 . . . or cause a disease that
takes longer to run its course.'' \79\ By way of example, the
incubation period for tuberculosis can be years in length, and that of
hepatitis B can be up to 180 days.\80\
---------------------------------------------------------------------------
\79\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR at 56527.
\80\ Illinois Department of Public Health, available at https://dph.illinois.gov/sites.default/files/publications/commchartschool-032817.pdg (last visited on October 15, 2020); Center for Acute
Disease Epidemiology, Iowa Department of Public Health, The
Epidemiology of Common Communicable Diseases, available at https://idph.iowa.gov/Portals/1/userfiles/79/Documents/Epi%20of%20Common%20Communicable%20Diseases%20June%202013%20-%20FINAL.pdf (last visited on October 15, 2020).
---------------------------------------------------------------------------
The Departments did consider limiting the scope of this rule, such
as by only applying the bars to those aliens who are symptomatic. But
as the CDC has determined in the context of COVID-19:
Identifying those infected with COVID-19 can be difficult, as
asymptomatic cases are currently believed to represent roughly 40%
of all COVID-19 infections. The infectiousness of asymptomatic
individuals is believed to be about 75% of the infectiousness of
symptomatic individuals. HHS/CDC's current best estimate is that
between 40 to 50% of infections are transmitted prior to symptom
onset (pre-symptomatic transmission).\81\
---------------------------------------------------------------------------
\81\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right To Introduce and Prohibition of Introduction
of Persons Into United States From Designated Foreign Countries or
Places for Public Health Purposes, 85 FR at 56429.
The Departments note that the final rule is not, as the NPRM
proposed, modifying the regulatory framework to apply the danger to the
security of the United States bars at the credible fear stage. In the
interim between the NPRM and the final rule, the Global Asylum Final
Rule did so for all of the bars to eligibility for asylum and
withholding of removal. In any event, the Departments do not intend for
asylum officer and immigration judge assessments of the applicability
of the security bars in the credible fear process to be ``cursory and
not appropriately detailed.'' As stated in the proposed rule, it is
anticipated that asylum officers and immigration judges will need to
spend additional time during the credible fear process to determine
whether an alien is ineligible for asylum or withholding of removal
based on the security bars. However, the Departments believe that the
additional time spent making such determinations will be minimal
because the issues to be explored by the asylum officer and the
immigration judge will usually be fairly straightforward and not
involve complex analysis, e.g., the place and time of an alien's
embarkation.
The Departments are not making changes to the final rule in
response to these comments.
Higher Standard for Credible Fear Determinations
Comment: Multiple commenters argued that the rule impermissibly
raises the standard for demonstrating a credible fear and imposes the
burden onto the asylum seeker to ``disprove the assumption that they
are a danger to security due to public health.'' The commenters state
that asylum seekers would be ill equipped to meet the proposed higher
standards in the credible fear screening process due to trauma, lack of
evidence or key information when they arrive at the border, lack of
legal representation, and lack of English proficiency, all of which
renders them incapable of contributing meaningfully to their own
defense. Another commenter added that the rule denies asylum seekers
the opportunity to receive meaningful administrative or judicial
review. Another noted that asylum seekers would have difficulty proving
they do not have a disease at this stage in the process because they
would not have access to physicians, medical screenings, or tests while
in detention. Another commenter argued that the burden of proof
concerning credible fear and application of the national security bars
should fall to the government, given the danger, including death, that
some asylum seekers may face upon return to their home country.
Response: The rule does not, and could not, alter the standard for
demonstrating a credible fear of persecution, which is set by statute
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). Asylum officers and immigration judges will
continue to assess credible fear for purposes of potential eligibility
for asylum by determining whether there is a significant possibility
that the alien can establish eligibility for asylum--which of necessity
requires the alien to demonstrate a significant possibility of each
element of asylum eligibility. Thus, to meet the credible fear
standard, the alien need only establish a significant possibility that
the danger to the security of the United States bar does not apply and
a significant possibility of meeting the other relevant eligibility
criteria.
The Departments do not agree that it is appropriate to place the
burden on the government concerning the application of the danger to
the security of the United States bars, or that they could even do so
consistent with the INA. Section 235(b)(1)(B)(iii)(II) of the INA,
which requires an asylum officer to prepare a written record of a
negative credible fear determination analyzing why ``the alien has not
established a credible fear of persecution,'' states that it is the
alien's responsibility to establish a credible fear of persecution.
While the burden lies with the alien, the officer is charged with
eliciting (in a non-adversarial manner) relevant information that bears
on whether the alien has a credible fear of persecution, including
whether there is a significant possibility that the danger to the
security of the United States bars does or does not apply. 8 CFR
208.30(d). The Departments point out that testimony alone, if otherwise
credible, can be sufficient to meet the alien's burden of proof.\82\
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\82\ INA 208(b)(1)(B)(ii) and 241(b)(3)(C), 8 U.S.C.
1158(b)(1)(B)(ii) and 1231(b)(3)(C); 8 CFR 208.13(a), 208.16, and
208.16(c)(2).
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[[Page 84176]]
The Departments are not making changes to the final rule in
response to these comments.
Role of Asylum Officers and Border Agents
Comment: Several commenters raised concerns that the rule, by
placing this inquiry in the credible fear stage of the removal process,
increases the decision-making authority of ``low-level immigration
officials,'' including border agents and asylum officers, to make
complex national security determinations without the proper expertise
and without the ``significant pre-hearing preparations'' that would
accompany removal proceedings before an immigration judge. Several
commenters posed questions about what kind of guidance, training, or
other measures would be implemented to enable CBP officers, asylum
officers, and immigration judges to determine whether an asylum seeker
is exhibiting symptoms consistent with a contagious disease. Others
asked whether such trainings would address implicit and explicit bias
in making such determinations, and how such determinations would be
tracked and measured. Another commenter argued that requiring asylum
officers to make determinations about withholding of removal under the
CAT regulations violates 8 CFR 208.16(a), which states that asylum
officers ``shall not'' decide withholding claims.
Response: As noted, the final rule is not, as the NPRM proposed,
modifying the regulatory framework to apply the danger to the security
of the United States bars at the credible fear stage because, in the
interim between the NPRM and the final rule, the Global Asylum Final
Rule did so for all of the bars to eligibility for asylum and
withholding of removal. In any event, the application of asylum
eligibility bars at the credible fear stage has no bearing on how
asylum officers or immigration judges assess alleged trauma during the
screening process. Adjudicators in both Departments are trained to make
these assessments and are well versed in assessing the credibility of
applicants, including accounting for trauma as relevant. Regarding
commenters' concerns about requiring asylum officers to determine
whether the bars apply during the credible fear interview, the
Departments note that asylum officers are well trained in asylum law
and are more than capable of determining whether statutory bars apply,
especially in the credible fear-screening context. An asylum officer
must have ``had professional training in country conditions, asylum
law, and interview techniques comparable to that provided to full-time
adjudicators of applications [for asylum],'' and ``is supervised by an
officer who [has had similar training] and has had substantial
experience adjudicating asylum applications.'' INA 235(b)(1)(E), 8
U.S.C. 1235(b)(1)(E)); 8 CFR 208.1(b). DHS asylum officers regularly
make determinations on a variety of issues surrounding eligibility in a
manner consistent with their extensive and multi-faceted training and
country conditions and other resources at their disposal. Asylum
officers receive extensive training in all the requirements for asylum
eligibility, international human rights law, non-adversarial
interviewing techniques, and other national and international refugee
laws and principles. 8 CFR 208.1(b). This training includes specific
lessons on cross-cultural communication; interviewing survivors of
torture; and working with an interpreter, all of which touch on
explicit and implicit bias. With the publication of this rule, asylum
officers will receive additional training on the standards and
requirements set forth in this rule. The Departments also note that
even before promulgation of the Global Asylum Final Rule, asylum
officers already elicited testimony related to mandatory bars to asylum
and/or withholding of removal in the credible fear context--they simply
did not apply them under then-current regulations.\83\
---------------------------------------------------------------------------
\83\ See Government Accountability Office, Actions Needed to
Strengthen USCIS's Oversight and Data Quality of Credible and
Reasonable Fear Screenings (Feb. 2020) at 10 (``In screening non-
citizens for credible or reasonable fear. . . [a] USCIS asylum
officer is to determine if the individual has any bars to asylum or
withholding of removal that will be pertinent if the individual is
referred to immigration court for full removal proceedings.''),
https://www.gao.gov/assets/710/704732.pdf; USCIS Refugee, Asylum,
and International Operations, Lesson Plan on Credible Fear of
Persecution and Torture Determinations (Apr. 30, 2019) at 31 (``Even
though the bars to asylum do not apply to the credible fear
determination, the interviewing officer must elicit and make note of
all information relevant to whether a bar to asylum or withholding
applies or not.''), https://fingfx.thomsonreuters.com/gfx/mkt/11/10239/10146/2019%20training%20document%20for%20asylum%20screenings.pdf.
---------------------------------------------------------------------------
Lastly, responding to commenters' concerns that such determinations
would be ``final,'' 8 CFR 208.16(a) provides that an asylum officer
``shall not decide whether . . . removal of an alien . . . must be
withheld.'' The rule provides for the asylum officer to conduct a
screening for potential eligibility for withholding and deferral of
removal. Asylum officer screening for these protections is currently
part of the credible fear process and do not result in a grant or
denial of withholding or deferral of removal, which can only be done by
an immigration judge, 8 CFR 208.16(a), 208.17, 1208.16(a), and 1208.17.
An asylum officer's determination following a credible fear interview
can be reviewed by an immigration judge, either as part of a de novo
review of a negative credible fear determination, or in asylum-and-
withholding-only proceedings, where the immigration judge is not bound
by findings of the asylum officer. As the Supreme Court has observed,
``[a]n alien subject to expedited removal thus has an opportunity at
three levels to obtain an asylum hearing, and the applicant will obtain
one unless the asylum officer, a supervisor, and an immigration judge
all find that the applicant has not asserted a credible fear.'' \84\
---------------------------------------------------------------------------
\84\ Thuraissigiam, 140 S. Ct. at 1965-66.
---------------------------------------------------------------------------
The Departments have reviewed and considered the comments and are
not making changes to the final rule in response to these comments.
Confidentiality of Health Information
Comment: One commenter stated that the rule violates asylum
seekers' right to privacy and confidentiality by requiring them to
disclose health information to immigration officers. The commenter also
faulted the rule for failing to include specifics on how asylum
seekers' personal health information, medical records, and health data
would be collected, stored, and transmitted.
Response: Information voluntarily provided to DHS for purposes of
adjudicating a requested benefit often contains sensitive personally
identifiable information. In particular, health information that is
collected and maintained within DHS systems of records, for example in
the context of the health ground of inadmissibility, INA 212(a)(1), 8
U.S.C. 1182(a)(1); INA 237(a)(1)(A), 8 U.S.C. 1227((a)(1)(A), as it
applies to applications for adjustment of status, INA 245(a)(2), 8
U.S.C. 1255(a)(2), is appropriately protected and handled in the same
manner as other sensitive information possessed by DHS. Information
about the safeguarding of health information and other sensitive
information may be found in the various System of Records Notice and
Privacy Impact Assessments that DHS and its components are statutorily
required to prepare.\85\ Moreover, asylum, credible fear, reasonable
fear and by policy, refugee information, enjoy heighted
[[Page 84177]]
confidentiality protections provided for in accordance with 8 CFR
208.6.
---------------------------------------------------------------------------
\85\ Available at https://www.dhs.gov/uscis-pias-and-sorns.
---------------------------------------------------------------------------
Written Record and Immigration Judge Review of Negative Credible Fear
Determinations
Comment: One commenter addressed the proposed provision at 8 CFR
208.30(e)(1), which calls for a written record in the credible fear
proceeding ``subject to (e)(5)''. The commenter stated this amendment
was unclear and warned that excusing any credible fear interview from
the written record requirement violates the statute at 8 U.S.C.
1225(b)(1)(B)(iii)(II).
Response: The Departments appreciate the comment received and
acknowledge the ambiguity that may have been created from the proposed
amendment to section 208.30(e)(1). The proposed language was intended
to simply clarify that when an asylum officer creates a written record
of his or her determination following a credible fear interview, the
officer should, as applicable, include a written record of their
determination as to whether the alien has demonstrated that it is more
likely than not that he or she would be tortured in the country of
removal. After considering the comment, the Departments have revised
the language of the proposed amendment (now at section 208.30(e)(4)
following the promulgation of the Global Asylum Final Rule) to make
this clearer.
Violation of Congressional Intent for Credible Fear Screening Process
Comment: A joint submission argued that Congress did not grant DHS
authority to create bars to credible fear that are unrelated to asylum
eligibility at the time of the adjudication of an application. Multiple
commenters argued that Congress intended for the credible fear process
to employ a ``low screening standard'' in order to ensure that asylum
seekers with genuine claims have access to the full asylum process and
are not returned to persecution, and faulted the proposal for raising
this standard.
Response: The NPRM did propose to modify the then-existing
regulatory framework in order to apply the danger to the security of
the United States bars at the credible fear stage. However, subsequent
to the publication of the NPRM, the intervening Global Asylum Final
Rule amended the regulatory framework to apply all bars to eligibility
for asylum and withholding of removal--including the danger to the
security of the United States bars--at the credible fear stage. This
rule does not make additional revisions to that regulatory framework.
In any event, the final rule does not create a ``bar'' to credible
fear unrelated to asylum eligibility. The Departments will continue to
employ the ``low screening standard'' prescribed in statute and
regulations--a significant possibility that the alien could establish
eligibility for asylum. However, pursuant to the Global Asylum Final
Rule, asylum officers must determine whether aliens are subject to a
bar to relief as part of the significant possibility anaylsis.
Accordingly, the Departments are not making changes to the final rule
in response to these comments.
3. Streamlining Screening for Deferral of Removal Eligibility in
Expedited Removal
Ability of Asylum Seekers To Meet Higher Standard for Protection Under
CAT in Credible Fear Screenings
Comment: The Departments received multiple comments concerning the
provisions of the rule that amend the screening standard for potential
eligibility for deferral of removal under the CAT regulations. Under
the rule, section 208.30(e)(5)(i)(B) is amended to provide that where
the asylum officer determines that the applicant is subject to the
danger to the security of the United States bars to asylum and
withholding of removal, the officer will screen for potential deferral
of removal protection under the CAT regulations for an alien who has
raised a fear of torture by determining whether the alien is able to
establish that it is more likely than not that he or she would be
tortured in the prospective country of removal, rather than whether
there is a reasonable possibility that the alien would be tortured in
the prospective country of removal. Several commenters stated that the
``more likely than not'' standard is unreasonable in the context of a
credible fear screening and argued that this standard was only
appropriate for a full immigration hearing before an immigration judge,
where a ``more likely than not standard'' is used as the eligibility
standard for deferral of removal. The commenters further argued that
raising the standard of proof to the level of a full immigration
hearing was inappropriate because individuals in screenings are likely
to have less than the required amount of evidence at the time of their
arrival and insufficient time to prove their case. Multiple commenters
argued that applying the ``more likely than not'' standard at the
expedited removal stage violates the expedited removal standard that
was intentionally designed by Congress to be ``generous'' and ``over-
inclusive'' to avoid the risk of refoulement. The commenters said
requiring individuals subject to a danger to the security of the United
States bar to prove they are ``more likely than not'' to be tortured in
the country of removal was an unlawful change to the credible fear
standard intended by Congress and clearly articulated in the text and
legislative history of IIRIRA. Other commenters noted that those
seeking protection under the CAT regulations who have suffered recent
trauma and psychological harm would have difficulty understanding
complex legal requirements and would be unable to fully disclose
everything that has happened to them in a ``rushed'' interview with a
stranger, resulting in an undue risk that those facing torture would
not be provided appropriate protection. Another commenter added that
allowing removal to a third country at the early screening stage would
mean that no thorough record will exist as to a person's risk of
torture in that third country, a risk the commenter argued may be very
high considering the permeability of borders and ease of movement of
persecutors between Mexico and Central American countries.
Response: The Departments first note that the expedited removal
provisions of the INA do not even reference screening for withholding
or deferral of removal under the CAT regulations. The rule continues to
apply the credible fear standard required by statute, defined as a
significant possibility that the alien can establish eligibility for
asylum. INA 235(b)(1)(B)(v). It is only when the alien is determined
not to meet that significant possibility standard due to the
application of the danger to the security of the United States bars
(subject to review by an immigration judge), and determined not to meet
the screening standard for withholding of removal (a reasonable
possibility of persecution on account of a protected ground and a
reasonable possibility of torture), that DHS will use the ``more likely
than not'' standard to screen for potential eligibility for deferral of
removal. There is no statutory requirement to even screen for deferral
of removal, putting aside the screening standard used by DHS when it
voluntarily engages in screening.
The Departments note that the utilization of the ``more likely than
not'' standard in deferral screenings only applies to aliens determined
by DHS to be ineligible for asylum and withholding of removal pursuant
to the danger to the security of the United States eligibility bars (or
ineligible for asylum pursuant to the Third-Country Transit Final
Rule). Aliens determined
[[Page 84178]]
by asylum officers to be ineligible for asylum or withholding of
removal pursuant to the other mandatory bars will continue to be
screened for deferral of removal under the reasonable possibility of
torture standard, as provided by the Global Asylum Final Rule.
Sending an alien to immigration court for a deferral of removal
adjudication often results in his or her release into the United States
for periods of years while the aliens await decisional finality. The
need to streamline and expedite screening for deferral of removal is
especially great in the context of outbreaks of communicable disease to
prevent infected aliens from release into the United States when they
are not even ultimately eligible for deferral. As the CDC has
concluded, the ``faster a covered alien \86\ 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 [of the United States].'' \87\
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\86\ In the context of the CDC Order, a ``covered alien''
includes those ``persons who are traveling from Canada or Mexico
(regardless of their country of origin), and who must be held longer
in congregate settings in POEs or Border Patrol stations to
facilitate immigration processing, would typically be aliens seeking
to enter the United States at POEs who do not have proper travel
documents, aliens whose entry is otherwise contrary to law, and all
aliens who are apprehended near the border seeking to unlawfully
enter the United States between POEs.'' 85 FR at 17067.
\87\ Id.
---------------------------------------------------------------------------
The Departments disagree that the ``more likely than not'' standard
is an inappropriate screening standard for potential protection under
the CAT regulations. In fact, Congress made clear that in providing
protection under the CAT regulations, the government should not grant
protection to aliens barred from eligibility for withholding of removal
``[t]o the maximum extent consistent with the obligations of the United
States under [CAT].'' \88\ The sole purpose of CAT deferral is to
provide protection to such aliens (barred from eligibility for
withholding of removal) in order ensure that they are not refouled to a
country where it is likely that they will be tortured. The preamble to
the 1999 CAT rule stated 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[,]'' \89\ 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).'' \90\
---------------------------------------------------------------------------
\88\ FARRA sec. 2242(c), 8 U.S.C. 1231 note (c).
\89\ Regulations Concerning the Convention Against Torture, 64
FR 8478, 8480 (Feb. 19, 1999).
\90\ 8 CFR 208.17(a), 1208.17(a).
---------------------------------------------------------------------------
This rule furthers Congress's mandate 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 aliens
meet at the credible fear stage their ultimate burden to demonstrate
eligibility for deferral of removal--i.e., that it is more likely than
not that they would be tortured in the country of removal. 8 CFR
208.16(c)(2), 208.17(a).
Regarding the commenter's concern about the alien's ability to meet
his or her burden with respect to possible torture, as the Departments
have noted, asylum officers are trained to research and consider
country conditions information, and engage in non-adversarial interview
techniques that are designed to elicit all relevant information.\91\
And, as the Departments have noted, testimony alone, if otherwise
credible, can be sufficient to meet the alien's burden.\92\ The
Departments are confident that officers will be able to access and
consider all relevant information that may bear on an alien's potential
risk of torture in any particular country.
---------------------------------------------------------------------------
\91\ 8 CFR 208.30(d).
\92\ INA 208(b)(1)(B)(ii) and 241(b)(3)(C), 8 U.S.C.
1158(b)(1)(B)(ii) and 1231(b)(3)(C); 8 CFR 208.13(a), 208.16, and
208.16(c)(2).
---------------------------------------------------------------------------
Regarding commenters' concerns that this standard is higher than
the asylum standard, the ``more likely than not'' standard better
aligns the initial screening standard of proof with the higher standard
used to determine whether aliens are in fact eligible for this form of
protection when applying before an immigration judge (than the ultimate
standard for asylum eligibility). As noted, Congress intended the
``more likely than not'' standard to meet United States' non-
refoulement obligations in Article 33(1) of the Refugee Convention, not
the lower asylum standard.
The Departments recognize that a higher screening standard may make
it more difficult to receive a positive fear determination, though that
standard is consistent with the higher burden of proof required for
considerations of the merits. However, the Departments disagree with
commenters that raising the screening standard for deferral of removal
will require aliens to submit significantly stronger documentary
evidence. Just as in screenings for asylum and withholding of removal
eligibility, the testimony of the applicant, if credible, may be
sufficient to sustain the alien's burden of proof without
corroboration. 8 CFR 208.17(a). At the credible fear interview stage,
these claims rest largely on the applicant's testimony, which does not
require any additional evidence gathering on the applicant's part.
Additionally, an alien who receives an adverse ``more likely than not''
determination by an asylum officer may seek review of such
determination by an immigration judge.
Requirement To Affirmatively Raise and Affirmatively Establish
Likelihood of Torture in Prospective Country of Removal
Comment: Several commenters argued that, since asylum seekers
fleeing torture often experience trauma and lack of understanding of
U.S. immigration law, they should not be required to make an
affirmative statement in credible fear interviews that they may be
tortured if returned to their home country. Some commenters opposed the
requirement that an asylum seeker in the expedited removal process
``affirmatively establish'' that torture in the prospective country of
removal is more likely than not. A group of commenters said the rule
would essentially require asylum seekers to somehow ``affirmatively
establish'' eligibility for withholding of removal or protection under
the CAT regulations in an unknown third country. Another commenter said
it is unclear how the Departments understand ``affirmatively
establish'' (in the proposed regulations) in relation to
``affirmatively raise'' (only stated in the preamble). The commenter
said the shift to ``affirmatively establish'' in the proposed
regulations appears to suggest a heightened burden on the asylum
seeker, in addition to raising the required risk of torture, signaling
a burden of presenting affirmative proof of torture at the credible or
reasonable fear interviews. The commenter said it is unclear and
confusing as to what standard the Departments are inserting.
Response: The Departments appreciate the comments concerning the
``affirmatively establish'' language that appeared in the regulatory
language of the proposed rule. The adverb was included to make clear
that the alien has the burden of proof to establish that torture is
more likely than not to occur in the prospective country of removal.
After considering the comments, the Departments have concluded that the
term ``affirmatively'' may cause confusion and is not necessary to
clarify the burden of proof, which clearly rests with the alien.
Accordingly, the term ``affirmatively'' has been deleted from
[[Page 84179]]
the regulatory text in the final rule at sections
208.30(e)(5)(i)(B)(3), (e)(5)(iii)(B), (e)(5)(iii)(B)(3), and
1208.30(g)(2)(iv)(A). An alien's obligation is simply to ``establish.''
As to ``affirmatively raises'', the preamble to the NPRM stated
that ``[i]f the alien affirmatively raises fear of torture . . . the
asylum officer will then assess, as appropriate, the alien's
eligibility for deferral of removal under the CAT regulations'' and
that ``[a]n 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.''
\93\ The Departments have concluded that the phrase ``affirmatively
raises'' could cause confusion, and thus incorporate the preceding
sentences by reference in this final rule with the understanding that
``affirmatively raises'' should read, ``has raised''.
---------------------------------------------------------------------------
\93\ Security Bars NPRM, 85 FR at 41213 (emphasis added).
---------------------------------------------------------------------------
The INS and now DHS's longstanding practice has been to ask every
alien subject to expedited removal about a potential fear of return.
The regulatory text at 8 CFR 235.3(b)(2)(i), which is not changed by
this rule, does not state this explicitly, providing that:
In every case in which the expedited removal provisions will be
applied and before removing an alien from the United States pursuant
to this section, the examining immigration officer shall create a
record of the facts of the case and statements made by the alien.
This shall be accomplished by means of a sworn statement using Form
I-867AB . . . . The examining immigration officer shall read (or
have read) to the alien all information contained on Form I-867A.
However, the preamble to the regulation made clear that all aliens
placed into expedited removal were to be questioned about a fear of
return:
Service procedures require that all expedited removal cases will
be documented by creation of an official Service file, to include a
complete sworn statement taken from the alien recording all the
facts of the case and the reasons for a finding of inadmissibility.
This sworn statement will be taken on a new Form I-867AB, Record of
Sworn Statement in Proceedings under Section 235(b)(1) of the Act.
The form will be used in every case where it is determined that an
alien is subject to the expedited removal process, and contains a
statement of rights, purpose, and consequences of the process. . . .
The final page of the form contains a standard question asking if
the alien has any fear or concern of being removed or of being sent
home.\94\
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\94\ Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 FR 10312, 10319 (Mar. 6, 1997) (interim rule with
request for comments) (emphasis added).
Accordingly, CBP/ICE officers ask aliens these questions during the
expedited removal process:
Why did you leave your home country or country of last
residence?
Do you have any fear or concern about being returned to
your home country or being removed from the United States?
Would you be harmed if you are returned to your home
country or country of last residence?
The alien's answers to these questions are memorialized on the I-
867B Form.\95\
---------------------------------------------------------------------------
\95\ DHS, Form I-867B (08/01/07) (Jurat for Record of Sworn
Statement in Proceedings under Section 235(b)(1) of the Act).
---------------------------------------------------------------------------
Thus, all aliens receiving credible fear screening interviews will
already have been asked whether they have a fear of return and have
answered in the affirmative (triggering the credible fear process).
Aliens with a fear of return based on torture would presumably have
stated such a fear at that time.
Unidentified Third Country
Comment: Many commenters stated that the rule would eliminate even
the prospect of protection under the CAT regulations because DHS
officials would be permitted to send an alien to a third country unless
the alien proves during a credible fear interview that they would be
persecuted or tortured in that specific country--without any
requirement that the person be informed of the identity of the country
in advance, which one commenter argued is nonsensical, immoral, and
cruel. Without notice of the country a person would be sent to, these
commenters said asylum applicants would face a near-impossible burden
to avoid being sent to a place where they may be tortured.
Response: The Departments appreciate the comments and agree that an
alien should be informed of the identity of a prospective country of
removal, provided with an opportunity to raise a fear of torture if
removed to that country, and to have that fear assessed to determine
whether he or she has established that it is more likely than not that
they will be tortured in that country. That was always the Departments'
intent, and the Departments accordingly include language in the final
rule clarifying that aliens must be notified of the identity of the
proposed country.
Unclear Process for Removability Determinations
Comment: Some commenters stated that the proposed rule is unclear
as to the process by which determinations about removability to a third
country will be made for individuals who have shown a credible fear of
persecution or torture in their home country. The commenters said that
given that asylum seekers only request withholding or deferral of
removal in removal proceedings before an immigration judge after the
credible fear process is completed, it is unclear when and how asylum
seekers would be advised of the potential for removal to a third
country and provided an opportunity to withdraw their request in order
to prevent removal to the third country. Another commenter said asylum
seekers will be confused by this advisal and feel coerced into
abandoning any claim for protection out of fear that they might be
removed to a country that they may never have been to, and where they
have no support system or means of ensuring their safety or survival.
Other commenters said the rule fails to include an exception for LGBTQ
persons who may not be able to survive in a third country due to on-
the-ground homophobia or transphobia, as it remains illegal or
fundamentally dangerous to openly identify as LGBTQ (or even be
perceived as LGBTQ) in over 80 countries around the world.
Response: The Departments appreciate the comments concerning the
rule's requirement that aliens be notified of the possibility of third
country removal at the time of requesting withholding or deferral of
removal and provided an opportunity to withdraw their request in order
to prevent removal to the third country. However, after considering the
comments, the Departments are not making changes to the final rule.
Once an asylum officer determines that an alien has not established
the requisite fear with respect to potential eligibility for asylum and
withholding of removal because they are subject to the danger to the
security of the United States eligibility bars, if the alien had raised
a fear of torture in the prospective country of removal, the asylum
officer will assess whether it is more likely than not that the alien
would be tortured in that country of removal, and thus potentially
eligible for deferral of removal. Prior to that assessment, the alien
would be notified of the possibility of removal to a third country and
provided the opportunity to proceed to removal pursuant to INA 241(b),
as appropriate.
The Departments do not view the process as coercive as suggested by
the commenters. Rather, the process provides applicants with an
opportunity to avoid an outcome that already exists.
[[Page 84180]]
Under current regulations, an alien who is granted withholding or
deferral of removal is protected from removal only to a particular
country, and remains subject to removal to other countries. 8 CFR
1208.30(f). This rule provides the alien with the option to return to
his or her home country rather than to seek withholding or deferral
protection, which could lead to such third country removal.
As stated previously, asylum officers are trained to research and
consider country conditions information and engage in non-adversarial
interview techniques designed to elicit all relevant information.
Accordingly, the Departments are confident that officers will be able
to access and consider all relevant information that may bear on an
LGBTQ person's potential risk of torture in any particular country.
Similarities With the MPP Process
Comment: Several commenters raised concerns related to the Migrant
Protection Protocols (MPP), which implement DHS's authority under INA
235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to return certain aliens
temporarily to Mexico during the pendency of their section 240 removal
proceedings. They argued that the Departments failed to acknowledge and
discuss adverse legal precedent issued in the MPP context and claimed
that this rule broadens the ``disastrous humanitarian consequences''
caused by the MPP. Specifically, one commenter noted that under the
MPP, individuals must ``affirmatively'' express a fear of return to
Mexico and then prove that it is ``more likely than not'' that they
``will face persecution or torture if returned to Mexico,'' the same
standards used to avoid being sent to a third country under the NPRM.
Further, they pointed out that in Innovation Law Lab v. Wolf,\96\ the
Ninth Circuit held that the MPP ``does not comply with the United
States' anti-refoulement obligations,'' and the commenter claimed that
the use of the same standards in the third country removal process also
does not provide sufficient protection against non-refoulement.
---------------------------------------------------------------------------
\96\ 951 F.3d 1073 (9th Cir. 2020).
---------------------------------------------------------------------------
Response: This rule is in no way related to the MPP and does not
constitute an expansion or modification of the MPP. The MPP implements
DHS's authority under INA 235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to
return certain aliens temporarily to Mexico during the pendency of
their section 240 removal proceedings. The MPP does not involve or
implement any bars to eligibility for asylum or withholding of removal.
This rule, on the other hand, allows the Departments to consider
emergency public health concerns when determining whether there are
reasonable grounds for regarding or believing an alien to be a danger
to the security of the United States'' and, thus, ineligible to be
granted asylum or withholding of removal. Although the Ninth Circuit
held that the plaintiffs in Innovation Law Lab were likely to succeed
on the merits of their claim that the MPP's non-refoulment screening
procedures did not meet U.S. non-refoulment obligations, the
Departments disagree, and the question remains in litigation. The
Supreme Court granted a stay of the district court's preliminary
injunction, declining to halt the use of the MPP non-refoulment
screening procedures,\97\ and the Supreme Court has granted a petition
for certiorari.\98\
---------------------------------------------------------------------------
\97\ Wolf v. Innovation Law Lab, No. 19A960 (Mar. 11, 2020).
\98\ Wolf v. Innovation Law Lab, No. 19-1212, __ S. Ct.__, 2020
WL 6121563, 20 Cal. Daily Op. Serv. 10,700 (petition for cert.
granted Oct. 19, 2020).
---------------------------------------------------------------------------
To the extent that commenters refer to country conditions in
Mexico, this final rule permits removal to any third country (in which
the alien has not demonstrated that he or she would be more likely than
not persecuted because of a protected ground or tortured). Therefore,
conditions in any specific country are no more relevant than conditions
in any other country, and it is merely speculative as to which third
countries DHS might consider in the future.
The Departments also point out that the Ninth Circuit concluded
that ``plaintiffs have shown a likelihood of success on the merits of
their claim that the MPP does not comply with the United States' anti-
refoulement obligations'' \99\ presumably based upon ``several features
of the MPP that, in [plaintiffs'] view, provide insufficient protection
against refoulement'' \100\ features that are not present in this final
rule. Unlike under the expedited removal process, under the MPP (1)
aliens ``must volunteer, without any prompting, that they fear
returning,'' \101\ (2) aliens must demonstrate that it is more likely
than not that they will be persecuted,\102\ and (3) ``an asylum seeker
is not entitled to advance notice of, and time to prepare for, the
hearing with the asylum officer; to advance notice of the criteria the
asylum officer will use; to the assistance of a lawyer during the
hearing; or to any review of the asylum officer's determination.''
\103\
---------------------------------------------------------------------------
\99\ Id. at 1093.
\100\ Id. at 1088.
\101\ Id. at 1089. As previously noted, DHS's longstanding
practice has been to ask every alien subject to expedited removal
about a potential fear of return.
\102\ Id. at 1088-89. In credible fear screenings in the
expedited removal process, aliens need to show only a significant
possibility that they would be eligible for asylum or a reasonable
possibility that they would be persecuted or tortured for purposes
of demonstrating potential eligibility for withholding of removal.
INA 235(b), 8 U.S.C. 1225(b); 8 CFR 208.30.
\103\ Id. at 1089. In the expedited removal process, an alien
may seek review of a negative credible fear determination by an
immigration judge. INA 235(b)(1)(B)(iii)(III), 8 U.S.C.
1225(b)(1)(B)(iii)(III). Aliens are entitled to a ``consultation
period'' before their credible fear interview. INA 235(b)(1)(B)(iv),
8 U.S.C. 1225(b)(1)(B)(iv) (``An alien who is eligible for such
interview may consult with a person or persons of the alien's
choosing prior to the interview or any review thereof . . . .'').
The current period is 48 hours. Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 FR 10312, 10320 (1997) (interim
rule with request for comments). Aliens in expedited removal
proceedings know of the charges against them, as aliens are only
eligible for expedited removal if they are inadmissible on the basis
of section 212(a)(6)(C) or (a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C)
or (a)(7).
---------------------------------------------------------------------------
Accordingly, the Departments conclude that MPP procedures and
related litigation are not relevant to this rule, and the Departments
are not making changes to the final rule in response to these comments.
4. Restoring Prosecutorial Discretion With Regard to Third Country
Removal
Comment: Several commenters claimed that the rule would put
protection from removal from the United States, including deferral of
removal under the CAT regulations, out of reach for virtually everyone
at the border and force those within the Unites States to play a ``game
of roulette'' in which they could be removed to virtually any country
in the world unless they withdraw their application for deferral. The
commenters opposed the NPRM, stating that it would leave the United
States government providing essentially no protection to those fleeing
persecution or torture. Other commenters similarly stated that the rule
threatens to eliminate the prospect of protection under the CAT
regulations by allowing removal to third countries. Another advocacy
group said asylum seekers sent to third countries would be unable to
challenge DHS' decision to do so, and the only option left for them
would be to withdraw their application for protection altogether.
Response: The Departments have reviewed and considered comments
that have expressed concerns regarding the exercise of discretion to
remove aliens to third countries who are only potentially eligible for
deferral of removal under the CAT regulations due to the security bars
to eligibility for
[[Page 84181]]
asylum and withholding of removal. The Departments remind commenters
that third country removal is already authorized by statute and
utilized in cases where the United States government has a safe third
country agreement with another country. INA 208(a)(2)(A).\104\ And,
unlike asylum, statutory withholding of removal and protection under
the CAT regulations provide protection from removal only to the
particular country regarding which an alien has established he or she
is more likely than not to be persecuted or tortured if removed there.
An alien can be removed to another country where the alien has not
established that he or she is more likely than not to be persecuted
(and is not subject to a bar to eligibility for withholding) or
tortured if removed to that particular country. 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:
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\104\ See also Asylum Claims Made by Aliens Arriving From Canada
at Land Border Ports-of-Entry, 69 FR 69490, 69492 (Nov. 29, 2004);
Agreement Between the Government of the United States of America and
the Government of the Republic of Guatemala on Cooperation Regarding
the Examination of Protection Claims, 84 FR 64095 (Nov. 20, 2019).
[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.\105\
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\105\ Asylum Claims Made by Aliens Arriving From Canada at Land
Border Ports-of-Entry, 69 FR at 69492.
The Departments note that restoring DHS's discretionary ability to
remove certain aliens to third countries only applies to aliens
determined to be ineligible for asylum and withholding of removal
pursuant to the danger to the security of the United States eligibility
bars, or ineligible for asylum pursuant to the Third-Country Transit
Final Rule. Aliens determined by asylum officers to be ineligible for
asylum or withholding pursuant to the other mandatory bars will
continue to be screened for deferral of removal under the reasonable
possibility of torture standard, as provided by the Global Asylum Final
Rule, and placed in immigration court for asylum-and-withholding-only
removal proceedings should they establish such a reasonable
possibility.
As noted previously, sending aliens to immigration court for a
deferral adjudication often results in their release into the United
States for periods of years. Restoring DHS's ability to instead remove
such aliens to third countries is especially important in the context
of outbreaks of communicable disease. As the Departments explained in
the NPRM, this would give DHS flexibility to quickly process aliens
during national health emergencies during which placing an alien into
section 240 proceedings (now, pursuant to the Global Asylum Final Rule,
into asylum-and-withholding-only 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. The
government's interest in protecting the security of the United States
outweighs an alien's interest in receiving protection in the country of
their choosing. UNHCR itself has concluded that ``refugees do not have
an unfettered right to choose their `asylum country,' '' that, even if
their ``intentions . . . ought to be taken into account,'' they and
``may be returned or transferred to a state where they had found, could
have found or, pursuant to a formal agreement, can find international
protection.'' \106\ UNHCR explained that ``[t]he 1951 Convention
relating to the Status of Refugees and its 1967 Protocol do not
prohibit such return or transfer.'' \107\ As discussed, pandemics
(e.g., 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 has it origin with or can be exacerbated by
infected aliens seeking to enter the United States illegally or without
proper documents, the Departments believe the entry and presence of
potentially infected aliens in certain circumstances warrant the use of
discretion to remove aliens placed into expedited removal proceedings
to third countries, avoiding the need for their lengthy detention or
release into American communities during the pendency of their asylum-
and-withholding-only proceedings. Accordingly, the Departments disagree
with commenters that suggest the rule should permit aliens who are
subject to the danger to the security of the United States bars to
challenge DHS's exercise of prosecutorial discretion in removing them
to third countries.
---------------------------------------------------------------------------
\106\ UNHCR, Legal Considerations Regarding Access to Protection
and a Connection Between the Refugee and the Third Country in the
Context of Return or Transfer to Safe Third Countries ] 2 (Apr.
2018), https://www.refworld.org/pdfid/5acb33ad4.pdf.
\107\ Id.
---------------------------------------------------------------------------
The Departments remind commenters that the danger to the security
of the United States bars are applicable not just during the present
COVID-19 public health emergency, but for future pandemics or public
health emergencies that meet the thresholds in this rule. Thus, the
application of the bars to asylum and withholding of removal will be
tailored to accommodate the specific circumstances of those public
health emergencies. The application of these bars is designed to
prevent the entry or limit the further spread of serious communicable
diseases into the United States, which would be exacerbated by lengthy
review processes to review claims made by recent entrants to the United
States.
5. Other Comments on Proposed Changes
Removal of the Reconsideration of a Negative Fear Determination
Comment: Many commenters, including legal services providers and
advocacy groups, expressed concern that proposed 8 CFR
1208.30(g)(2)(iv)(A) would eliminate asylum officers' authority to
reconsider negative credible fear determinations that had been affirmed
on review by immigration judges, which they described as an important
layer of due process for asylum seekers. Multiple commenters reasoned
that the ability of the asylum officer to reconsider provides an
important safeguard for unrepresented and/or traumatized asylum seekers
who were unable to fully express a fear of return during an initial
interview and review hearing. Several commenters argued that preventing
reconsideration in no way advances the purported health objective of
the proposed rule. Another commenter stated that the lack of
explanation of such a major change suggests an ``alarming lack of
thoroughness or analysis'' in the Departments' promulgation of the
proposal.
Response: The Departments appreciate the comments received, and
want to state that an inadvertent typographical omission resulted in
the elimination of the existing reference to DHS's reconsideration
authority at 1208.30(g)(2)(iv)(A). In any event, the Global Asylum
Final Rule reinserted the relevant regulatory text at 8 CFR
208.30(g)(2)(i). DHS may continue to reconsider a negative credible
fear finding that has been concurred upon by an immigration judge after
providing
[[Page 84182]]
notice of its reconsideration to the immigration judge.
Improper Reference to the Third-Country Transit Ban
Comments: Commenters expressed concern regarding the interplay of
this rulemaking effort with the interim final rule Asylum Eligibility
and Procedural Modifications \108\ (``Third-Country Transit IFR'').
Specifically, commenters were concerned that that rule had been vacated
and enjoined by Federal courts. A few commenters asserted that the
Departments failed to justify why a proposed rule focused on an
eligibility bars based on public health would address an unrelated
eligibility bar. One commenter asserted that the Departments should
eliminate provisions that reference the Third-Country Transit IFR or
provide additional justification for how and why the provisions remain
pertinent. Another commenter argued that the reference to the IFR is
improper because its legitimacy is under review in federal courts, has
been vacated by at least one, and that the Departments provided no
notice that the third-country transit ``ban'' is again being considered
for incorporation as a regulation.
---------------------------------------------------------------------------
\108\ 84 FR 33829 (July 16, 2019).
---------------------------------------------------------------------------
Response: The Departments recently promulgated the Third-Country
Transit Final Rule, Asylum Eligibility and Procedural Modifications, 85
FR 82260 (December 17, 2020), which responded to comments received on
the Third-Country Transit IFR and made minor changes for clarity and
correction of typographical errors, and promulgated the Global Asylum
Final Rule. As these rules supersede the Third-Country Transit IFR,
this Security Bars and Processing final rule modifies the NPRM's
proposed changes to the Third-Country Transit IFR's regulatory text to
reflect the text of the now-operative Global Asylum Final Rule. This
also serves to resolve any possible concerns regarding modifying the
text of a regulation subject to a preliminary injunction.
Due Process Concerns
Comment: Numerous commenters expressed concern about the NPRM's
impact on due process. A religious organization alleged generally that
the rule would deprive aliens of the opportunity to be heard before a
judge. A legal services provider remarked that immigration proceedings
must conform to the Fifth Amendment's due process requirement and
stated that legal scholars have observed that expedited removal
proceedings do not afford asylum seekers with important due process
protections such as access to counsel. The commenter said the Supreme
Court had previously noted its ``discomfort'' with the minimal due
process protections, given the severe consequence of deportation, and
the commenter argued the proposal would further diminish due process
protections by denying asylum seekers access to the court and the BIA.
One commenter alleged, without elaboration, that the rule
``circumvents mandatory procedural rights enshrined in the removal
process.'' Another commenter stated that the Due Process Clause
requires that agencies implement procedures for access to ``a statutory
right to apply for asylum'' fairly and consistently, and argued that
the NPRM would contravene this requirement by ``throw[ing] the
procedures for accessing asylum protections into chaos.''
One commenter argued that constitutional due process rights extend
to aliens and that they are especially important in asylum cases, where
the consequences of adverse decisions are severe and could result in
deportation, torture, or death. The commenter claimed further that the
rule attempts to evade these protections and statutory asylum
procedures and apply arbitrary, unlawful indicia of dangerousness
without justification.
An advocacy group wrote that UNHCR guidance requires that asylum
applicants be afforded due process. Similarly, an international agency
commented that ``UNHCR's position is that it is contrary to
international law to deprive asylum seekers of access to a full
examination of the substance of their claim based on an exclusionary
ground.'' The commenter reasoned that screening interviews are
inadequate to assess the factual and legal issues surrounding asylum,
especially given the lack of legal assistance, translation, and time to
recover from trauma that an applicant may face.
Response: The rule does not violate constitutional or statutory due
process protections. The Supreme Court recently ruled in United States
v. Thuraissigiam \109\ (in the context of reversing a Ninth Circuit
decision that had declared the expedited removal statute's limitation
on federal habeas review as unconstitutional for suspending the writ of
habeas corpus and violating due process) that:
---------------------------------------------------------------------------
\109\ 140 S. Ct. at 1959.
While aliens who have established connections in this country
have due process rights in deportation proceedings, the Court long
ago held that Congress is entitled to set the conditions for an
alien's lawful entry into this country and that, as a result, an
alien at the threshold of initial entry cannot claim any greater
rights under the Due Process Clause. See Nishimura Ekiu v. United
States, 142 U.S. 651, 660 . . . (1892). Respondent attempted to
enter the country illegally and was apprehended just 25 yards from
the border. He therefore has no entitlement to procedural rights
other than those afforded by statute.\110\
---------------------------------------------------------------------------
\110\ Id. at 1963-64.
[R]espondent contends that IIRIRA violates his right to due process
by precluding judicial review of his allegedly flawed credible-fear
proceeding. . . . The Ninth Circuit agreed, holding that respondent
``had a constitutional right to expedited removal proceedings that
conformed to the dictates of due process.'' . . .
[T]he dissent [is in] correct in defending the Ninth Circuit's
holding. That holding is contrary to more than a century of precedent.
In 1892, the Court wrote that as to ``foreigners who have never been
naturalized, nor acquired any domicil or residence within the United
States, nor even been admitted into the country pursuant to law,''
``the decisions of executive or administrative officers, acting within
powers expressly conferred by Congress, are due process of law.''
Nishimura Ekiu, 142 U.S. at 660. . . . Since then, the Court has often
reiterated this important rule. See, e.g., Knauff, 338 U.S. at 544 . .
. (``Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned''); Mezei, 345
U.S. at 212 . . . (same); Landon v. Plasencia, 459 U.S. 21, 32 . . .
(1982) (``This Court has long held that an alien seeking initial
admission to the United States requests a privilege and has no
constitutional rights regarding his application, for the power to admit
or exclude aliens is a sovereign prerogative'').
Respondent argues that this rule does not apply to him because he
was not taken into custody the instant he attempted to enter the
country (as would have been the case had he arrived at a lawful port of
entry). Because he succeeded in making it 25 yards into U.S. territory
before he was caught, he claims the right to be treated more favorably.
The Ninth Circuit agreed with this argument. We reject it. It
disregards the reason for our century-old rule regarding the due
process rights of an alien seeking initial entry. That rule rests on
fundamental propositions: ``[T]he power to admit or exclude aliens is a
sovereign prerogative,'' id., at 32 . . ; the Constitution gives ``the
political department of the government'' plenary authority to decide
which aliens to
[[Page 84183]]
admit, Nishimura Ekiu, 142 U.S. at 659 . . ; and a concomitant of that
power is the power to set the procedures to be followed in determining
whether an alien should be admitted, see Knauff, 338 U.S. at 544 . . .
.
This rule would be meaningless if it became inoperative as soon as
an arriving alien set foot on U.S. soil. When an alien arrives at a
port of entry--for example, an international airport--the alien is on
U.S. soil, but the alien is not considered to have entered the country
for the purposes of this rule. On the contrary, aliens who arrive at
ports of entry--even those paroled elsewhere in the country for years
pending removal--are ``treated'' for due process purposes ``as if
stopped at the border.'' Mezei, 345 U.S. at 215 . . ; see Leng May Ma
v. Barber, 357 U.S. 185, 188-190 . . . (1958); Kaplan v. Tod, 267 U.S.
228, 230-231 . . . (1925). The same must be true of an alien like
respondent. As previously noted, an alien who tries to enter the
country illegally is treated as an ``applicant for admission,'' Sec.
1225(a)(1), and an alien who is detained shortly after unlawful entry
cannot be said to have ``effected an entry,'' Zadvydas v. Davis, 533
U.S. 678 . . . (2001). Like an alien detained after arriving at a port
of entry, an alien like respondent is ``on the threshold.'' Mezei, 345
U.S. at 212 . . . . The rule advocated by respondent and adopted by the
Ninth Circuit would undermine the ``sovereign prerogative'' of
governing admission to this country and create a perverse incentive to
enter at an unlawful rather than a lawful location. Plasencia, 459 U.S.
at 32 . . . .
For these reasons, an alien in respondent's position has only those
rights regarding admission that Congress has provided by statute.\111\
---------------------------------------------------------------------------
\111\ Id. at 1981-83.
---------------------------------------------------------------------------
Due process most fundamentally requires notice and an opportunity
to be heard.\112\ Contrary to commenters' assertions, this rule does
not deprive aliens of a hearing before an immigration judge. As the
Departments noted in the NPRM, if an alien subject to expedited removal
is unable to establish during a credible fear screening the requisite
possibility of eligibility for asylum or withholding of removal because
of the danger to the security of the United States eligibility bars,
the asylum officer's determination is reviewable by an immigration
judge, as would be the officer's determination that the alien has not
established it to be more likely than not that he or she would be
tortured in the prospective country of removal.
---------------------------------------------------------------------------
\112\ LaChance v. Erickson, 522 U.S. 262, 266 (1998) (``The core
of due process is the right to notice and a meaningful opportunity
to be heard.'').
---------------------------------------------------------------------------
If, based on this review, the alien is placed in asylum-and-
withholding-only proceedings, the alien will have an opportunity to
raise whether he or she was correctly identified as subject to the
bars, as well as other claims. If an immigration judge determines that
the alien was incorrectly determined to be subject to the bars, and the
alien has otherwise established the requisite fear of persecution or
torture, then the alien will be able to seek asylum and withholding of
removal. And the alien can appeal the immigration judge's decision in
these proceedings to the BIA and then seek review from a federal court
of appeals.
As discussed above, a commenter argued that the NPRM uses public
health as a pretext to deny asylum because the Departments provide for
immigration judge review, which can take several days, in which time
the alien may spread or contract a dangerous virus while in DHS
custody. Other commenters faulted the Departments for a process they
claim to be too swift. When read together, commenters faulted the
Departments for providing a review process that presents significant
risk of spreading a disease during a pandemic because of lengthy
review, while at the same time violating due process because the review
process is too short. The Departments disagree with the premise of each
assertion, but note that these competing arguments illustrate the
balance that the Departments are striving to achieve with this rule--
mitigating risk of harm while providing due process protections.\113\
The rule balances the interests of public safety with that of due
process.
---------------------------------------------------------------------------
\113\ Landon v. Plasencia, 459 U.S. 21, 34 (1982) (``In
evaluating the procedures in any case, the courts must consider the
interest at stake for the individual, the risk of an erroneous
deprivation of the interest through the procedures used as well as
the probable value of additional or different procedural safeguards,
and the interest of the government in using the current procedures
rather than additional or different procedure.'').
---------------------------------------------------------------------------
As discussed, the Departments disagree that the rule heightens the
credible fear standard regarding potential eligibility for asylum. As
noted, it clarifies the Departments' understanding of danger to the
security of the United States bars. It does not alter the statutory
credible fear standard of ``significant possibility.''
The Departments disagree that this rule will not be applied fairly
and consistently, that it deprives aliens of a ``statutory right to
apply for asylum,'' or that it will throw procedures for accessing
asylum into chaos. This rule applies equally and fairly to all aliens
who enter or attempt to enter the United States, whether at the
southern border, the northern border, or any of the more than 300 land,
air and sea POEs. Further, aliens' right to apply for asylum is, where
applicable, limited by the expedited removal process, which prohibits
the filing of an asylum application and a full hearing on that
application where the alien is unable to establish the requisite fear
of persecution or torture. It is not clear from the comment how or why
the asylum system would be thrown into chaos. The Departments therefore
cannot address the claim.
The Departments also disagree that the rule violates due process on
the basis that it does not conform to UNHCR guidance and that screening
interviews are inadequate. The Departments are not bound by UNHCR
guidance or supposed ``international norms.'' Further, the Departments
have many years of combined experience in implementing the credible
fear screening and review process, and believe the current
infrastructure and personnel are well positioned to implement this
final rule.
Comment: Several commenters argued that applying danger to the
security of the United States bars at the credible fear screening stage
would deprive asylum seekers of a full, fair and meaningful opportunity
to have their asylum claims adjudicated because the credible fear
screening stage does not include due process protections. Other
commenters remarked that asylum seekers with meritorious claims would
be denied the opportunity to testify and present their case before a
judge if asylum officers determine they are a danger to national
security on public health grounds, even if they are not actually
infected with COVID-19 or another contagious disease.
A legal services provider described the procedural safeguards of
section 240 proceedings, including increased opportunity for
administrative and judicial review, and faulted the proposal for
conflating threshold eligibility and questions of a claim's ultimate
merits that are more appropriate for section 240 proceedings.
Another legal services provider stated that the proposal would deny
asylum seekers due process by making it easier to deport those
``branded as diseased'' before they can access legal counsel to help
establish the merits of their claims to asylum.
One commenter remarked that the proposal would increase the
evidentiary burden on asylum seekers early in the process and would
increase the likelihood that vulnerable individuals
[[Page 84184]]
are returned to countries where they risk persecution or torture, and
argued that asylum seekers' right to avoid being returned to countries
where their lives would be in danger outweighs the administrative
efficiencies cited as justification for the proposal.
A legal services provider argued that applying the danger to the
security of the United States bars at the credible fear stage would
lead to ``tremendous due process concerns'' because asylum seekers
would be forced to present their cases to asylum officers without
access to counsel, after arduous and traumatic journeys to the United
States, and after enduring poor conditions in CBP or ICE custody. A
professional association agreed and stated that expedited removal
proceedings lack important procedural safeguards such as a meaningful
opportunity to present evidence to a neutral factfinder, access to
legal counsel, the opportunity to receive findings of fact and
conclusions of law, and access to administrative or judicial review. A
legal services provider stated that asylum seekers must have access to
legal counsel in order to ensure an adequate review of the merits of
their cases in the current process and suggested legal assistance would
be even more important due to changes contained in the NPRM.
Response: The Departments disagree that applying the danger to the
security of the United States bars at the credible fear screening
violates due process on the grounds that it does not provide a full,
fair and meaningful opportunity for an alien to have his or her asylum
application adjudicated. As noted above, the Global Asylum Final Rule
already took this step. In any event, Congress provided for the
credible fear process, and many aliens seeking admission and expressing
a fear of return to their home countries are removed each year on the
basis that they failed to establish a credible fear.
The Departments recognize that, during a pandemic, aliens with
otherwise meritorious claims may be subject to the danger to the
security of the United States bars. However, it was Congress's decision
to make aliens who there are reasonable grounds for regarding or
believing to be a danger to the security of the United States
categorically ineligible for asylum and withholding of removal. In any
event, aliens who are determined not to have a credible fear of
persecution or torture may seek immigration judge review of whether the
security bars were properly applied. If an immigration judge finds the
bars were improperly applied, and that the alien has established a
credible fear, the alien will not be removed, but rather placed into
asylum-and-withholding-only proceedings.
The Departments also recognize that an alien may be subject to the
danger to the security of the United States bars where he or she is not
infected with the relevant communicable disease at the time the
determination is made, but disagree that this violates due process or
that it requires a heightened evidentiary standard. The bars do not
require a positive diagnosis, only that DHS or DOJ have reasonable
grounds for regarding the alien as a danger. As noted above, the
Attorney General in Matter of A-H- ruled that ``reasonable'' in this
context ``implied the use of a `reasonable person' standard'' that was
``substantially less stringent than preponderance of the evidence,''
and instead akin to ``probable cause.'' \114\ 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.''
\115\ Further, ``[t]he information relied on to support the . . .
determination need not meet standards for admissibility of evidence in
court proceedings . . . . `It [i]s enough that the information relied
upon by the Government [i]s not `intrinsically suspect.' '' \116\ These
standards that have been previously applied to interpretations of the
security eligibility bars support application of the bars in instances
where each individual alien is not known to be carrying a particular
disease. Rather, it is enough, for example, that the prevalence 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.
---------------------------------------------------------------------------
\114\ 23 I&N Dec. at 788-89 (emphasis added).
\115\ Id. at 789 (citation omitted).
\116\ Id. at 789-90.
---------------------------------------------------------------------------
The Departments reject the assertion that the rule violates due
process based on the claim that it prohibits access to counsel prior to
the bars' application at credible fear screenings, or that it deprives
aliens of a meaningful opportunity to present evidence to a neutral
factfinder, to receive findings of fact and conclusions of law, or to
access administrative or judicial review. The rule does not alter the
ability of aliens to consult with counsel, INA 235(b)(1)(B)(iv), 8
U.S.C. 1225(b)(1)(B)(iv), to present testimony to the asylum officer in
an interview conducted in a non-adversarial manner, with the goal of
eliciting all relevant and useful information bearing on whether the
alien can establish a credible fear of persecution, reasonable
possibility of persecution, reasonable possibility of torture, or
whether it is more likely than not that the alien will be tortured in
the prospective country of removal, INA 235(b)(1)(B)(iii)(II), 8 U.S.C.
1225(b)(1)(B)(iii)(II), 8 CFR 208.30(d), or to request an immigration
judge's de novo review of the asylum officer's determination, INA
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III), 8 CFR
1003.42(d)(1).
Comment: Some commenters emphasized that the NPRM could allow the
removal of an applicant seeking deferral of removal to a third country
before the adjudication of the case in immigration court by an
immigration judge. Some commenters claimed that removing asylum seekers
to third countries before their pending asylum claims are adjudicated
would unfairly and illegally deprive them of the opportunity to
establish eligibility for asylum. A legal services provider said the
proposed rule's efforts to effectuate third country removals would
deliberately interfere with EOIR's review of the merits of the asylum
seeker's claim, who could be deported abruptly prior to their day in
court.
Another commenter said the rule would deport thousands of people to
likely deaths before they even have a chance to express their fear.
Response: The Departments disagree that the rule allows for the
removal of an alien seeking protection from a third country before
their asylum claims are adjudicated. The rule provides for removal to a
third country only after the alien has been determined by an asylum
officer to not have a credible fear of persecution or a reasonable
possibility of persecution or torture due to the danger to the security
of the United States bars, and only after the alien has had an
opportunity for de novo review of that determination by an immigration
judge. Thus, the alien's only available form of protection, should the
alien be eligible, would be deferral of removal, which only protects
the alien from removal to the particular country from which removal has
been deferred. 8 CFR 208.17(b)(2). Thus, removal to a third country
prior to a full adjudication of the deferral claim does not deprive the
alien of protection that would be provided by deferral--removal to that
particular country. Rather, it brings efficiency to the process by
treating the alien as though he or she has received such protection
without the need for a full adjudication of the deferral claim. Under
this rule, DHS will provide notice to the alien of the prospective
third country, and the alien will have an
[[Page 84185]]
opportunity to establish that he or she would be more likely than not
to be tortured in such third country. Even the current deferral of
removal regulations provide that an alien who is granted deferral be
informed ``that removal has been deferred only to the country in which
it has been determined that the alien is likely to be tortured, and
that the alien may be removed at any time to another country where he
or she is not likely to be tortured.'' 8 CFR 208.17(b)(2),
1208.17(b)(2).
6. Other Issues Related to the Rule
1. Requests to Extend Comment Period
Comment: Several commenters requested that the Departments extend
the 30-day comment period, citing the APA, Executive Order 12866, and
instances where rulemakings have been open longer than 60 days. Some
commenters claimed that the rule is complex, sweeping, and that it
would rewrite fundamental aspects of U.S. asylum law, arguing that the
30-day comment period is therefore insufficient to analyze the impact
of the proposed changes and receive proper input from key stakeholders
such as public health and medical experts. Several other commenters
argued that the 30-day comment period is particularly inadequate given
the COVID-19 crisis, which had already taxed the resources and capacity
of organizations. Multiple commenters stated that the comment period
was inappropriate given the concurrent proposed rule Procedures for
Asylum and Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 FR 36264 (June 15, 2020) (``Global Asylum NPRM''), which
closed for comments on July 15, 2020. Several commenters claimed that
there was a lack of urgency in promulgating this final rule given that
few asylum interviews are occurring because of the March 20, 2020 CDC
order.\117\ One commenter asserted that asylees, lawful permanent
residents, and U.S citizens who have family members with pending
determinations did not provide comment on this rule due to fear of
retaliation from the Administration and thus the comment period is
missing critical stakeholder input.
---------------------------------------------------------------------------
\117\ Notice of Order Under Sections 362 and 365 of the Public
Health Service Act Suspending Introduction of Certain Persons From
Countries Where a Communicable Disease Exists, 85 FR 17060, 17067
(Mar. 20, 2020).
---------------------------------------------------------------------------
Response: The Departments disagree that the comment period was
insufficient and decline to extend it. The Departments also disagree
with the commenters' characterizations of the rule as complex,
sweeping, or rewriting fundamentals of asylum law. The rule is designed
to be as narrow as the scope of a given public health emergency, and is
only operable under a discrete set of circumstances during such an
emergency. The rule merely clarifies that the Departments'
understanding of the danger to the security of the United States bars
to eligibility for asylum and withholding of removal encompasses public
health concerns, restores prosecutorial discretion to DHS, and
streamlines the process for screening for potential eligibility for
deferral of removal under the CAT regulations. The Departments also
disagree that the comment period should have been longer due to the
Global Asylum NPRM. This rule is separate and distinct, dealing with a
much more limited set of issues.
The APA is silent as to the duration of the public comment period
and does not establish a minimum duration.\118\ Executive Order 12866
encourages, but does not require, agencies to provide at least 60 days
for the public to comment on significant rules. Federal courts have
presumed 30 days to be a reasonable comment period length. For example,
the D.C. Circuit has stated that ``[w]hen substantial rule changes are
proposed, a 30-day comment period is generally the shortest time period
sufficient for interested persons to meaningfully review a proposed
rule and provide informed comment.'' \119\ The Departments believe that
the 32-day comment period for this rule provided an adequate
opportunity for public input, and decline to extend the period.
Contrary to commenters' claims that this rule lacks urgency, the
duration of the comment period is a reflection of the urgency with
which the Departments believe they must address public health concerns
given the ongoing pandemic and risk of future pandemics.
---------------------------------------------------------------------------
\118\ 5 U.S.C. 553(c).
\119\ Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d
1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193,
1201 (D.C. Cir. 1984)).
---------------------------------------------------------------------------
The sufficiency of the 32-day comment period for this rule is
supported by the over 5,000 public comments received. The public,
including attorneys, advocacy groups, religious, community, and social
organizations, law firms, federal, state and local entities and elected
officials provided a great number of detailed and informative comments.
Given the quantity and quality of the comments received in response to
the proposed rule, and other publicly available information regarding
the rule, the Departments believe that the 32-day comment period was
sufficient. The Departments recognize that the comment period was open
during the ongoing COVID-19 pandemic, but disagrees that it should be
extended on that basis. Over 5,000 comments were successfully submitted
and accepted online, not requiring in-person transmission of comments
or even use of the U.S. Postal Service.
The Departments reject the assertion that some members of the
public were unable to provide comments due to their immigration status.
One commenter asserted, without evidence, that asylees, lawful
permanent residents, and U.S citizens who have family members with
pending determinations did not provide comment on this rule due to fear
of retaliation from the Administration and thus the comment period is
missing critical stakeholder input. The Departments solicited comments
from all interested persons as part of this rulemaking. The Departments
neither solicited nor required persons to provide information about
their immigration status in order to submit a comment, and the
Department would have no way of knowing the status of any commenter
unless volunteered. In the NPRM, the Departments cautioned commenters
that ``all comments received are considered part of the public record
and made available for public inspection . . . . 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.'' \120\
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\120\ Security Bars and Processing, 85 FR at 41201.
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2. Rulemaking Process/APA Concerns
Comment: Approximately 20 submissions expressed concerns that the
NPRM does not comply with the APA. Multiple commenters argued that it
is arbitrary and capricious because it does not meet the Departments'
statutory, non-refoulement, and constitutional mandates to protect
asylum seekers' rights or because it raises the burden of proof on
asylum; fails to consider other factors that could mitigate the risk of
COVID-19 infection; uses COVID-19 as a pretext to exclude applicants
from countries where COVID-19 is prevalent, but less prevalent than in
the United States; fails to demonstrate that the Departments engaged in
reasoned, data-driven decision making; and was written in a piecemeal
and duplicative fashion, which demonstrates an intent to evade
comprehensive evaluation and comment.
[[Page 84186]]
One commenter stated that the timing of this rule merits very close
scrutiny given the recent publication of the Global Asylum NPRM,
asserting that this demonstrates apparent bad faith by attempting a
``second bite at the apple'' and that the Departments' public health
rationale should not be granted deference.
A legal services provider claimed that the rule is arbitrary and
capricious because it ``ignores the significant reliance interests of
[the legal service provider] and organizations like it.'' Namely, the
organization stated that it has developed processes and educational
material for asylum seekers and for its staff and volunteers based on
asylum law ``as it currently exists,'' and that it ``trains its staff,
volunteers, and pro bono attorneys on asylum law using curricula that
have been standardized and perfected.'' It argued that the rule ``would
require [the organization] to expend significant resources to revise,
reprint, and retrain all of this existing materials and procedures, to
the detriment of [the organization] and the communities it serves.''
Response: The Departments also disagree with commenters' claim that
the Departments purposefully separated their asylum-related policy
goals into separate regulations in order to prevent the public from
being able to meaningfully review and provide comment. Each of the
Departments' rules stand on their own, include explanations of their
basis and purpose, and allow for public comment, as required by the
APA.\121\
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\121\ Little Sisters of the Poor Saints Peter & Paul Home v.
Pennsylvania, 140 S. Ct. 2367, 2386 (2020) (explaining that the APA
provides the ``maximum procedural requirements'' that an agency must
follow in order to promulgate a rule).
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The Departments also disagree that the promulgation of this rule is
arbitrary and capricious or that it violates the APA. As discussed
previously, the APA requires agencies to engage in ``reasoned decision
making'' \122\ and directs that agency action be set aside if it is
arbitrary or capricious, 5 U.S.C. 706(2)(A). However, this is a
``narrow standard of review'' and ``a court is not to substitute its
judgment for that of the agency,'' \123\ but is instead to assess only
whether the decision was ``based on a consideration of the relevant
factors and whether there has been a clear error of judgment.'' \124\
Arbitrary and capricious review is ``highly deferential, presuming the
agency action to be valid.'' \125\ It is ``reasonable for the [agency]
to rely on its experience'' to arrive at conclusions, even if those
conclusions are not supported with ``empirical research.'' \126\
Moreover, the agency need only articulate ``a rational connection
between the facts found and the choice made.'' \127\
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\122\ Michigan v. EPA, 576 U.S. 743, 750 (2015), quoting
Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359 (1998).
\123\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513
(2009).
\124\ Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971).
\125\ Sacora, 628 F.3d at 1068.
\126\ Id. at 1069.
\127\ Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29, 43 (1983).
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Under this deferential standard, and contrary to commenters'
claims, the Departments have provided reasoned explanations for the
changes in this rule more than sufficient to satisfy the APA's
procedural requirements. The NPRM and final rule describe each
provision in detail and provides an explanation for each change from
current law or from the NPRM. The Departments explained that these
changes are intended to mitigate the risk of a dangerous communicable
disease being brought to, or further spread within, the United States.
The Departments disagree that the rule exceeds statutory authority.
This rule clarifies that existing statutory limitations on asylum and
withholding eligibility may include emergency public health concerns.
This falls squarely within the Departments' statutory authority.
The Departments also disagree that the rule raises the burden of
proof on asylum seekers beyond the international standard. First, the
rule continues to apply the statutory standard of credible fear of
persecution, defined as a significant possibility that an alien could
establish eligibility for asylum. Second, the ultimate standard for
statutory withholding of removal and protection under the CAT
regulations--intended by Congress to meet the United States' non-
refoulement obligations under the Refugee protocol and CAT--remains the
same at ``more likely than not.''
Contrary to commenters' assertions, the Departments did consider
and implement other factors that could mitigate risk of COVID-19
infection.
The Departments also reject as unfounded the assertion that the
rule uses COVID-19 as a pretext to exclude applicants from countries
where COVID-19 is prevalent, but less prevalent than in the United
States. The rule is not limited to the COVID-19 pandemic, and is
intended to allow the Departments to respond quickly and effectively to
unknown future health emergencies that meet the criteria it defines.
Additionally, the rule applies equally to all countries or regions
outside the United States where a ``disease is prevalent or epidemic,''
but does not require that the disease be ``less prevalent'' in the
United States at the time the determination is made. Due to
inconsistencies in reporting standards, lack of reporting, or
intentional misreporting, it can be difficult to gauge at any given
time whether a disease is more prevalent than in the United States.
Moreover, the Departments have a duty to ensure the security of the
United States without regard to whether the pandemic is more prevalent
or less prevalent elsewhere.
Recently, the number of COVID-19 cases has been overwhelming in
countries where a significant number of asylum seekers originate from
or travel through. The vast majority of inadmissible aliens seeking
asylum originate from or travel through areas where COVID-19 is
widespread, such as Latin America. The World Bank recently noted that
``Latin America and Caribbean is the region hardest hit by the COVID-19
Pandemic'' \128\ and it was recently reported that ``Latin America and
the Caribbean marked 10 million cases. . . and with more than 360,000
deaths, the region is the worst hit in terms of fatalities, according
to official figures.'' \129\
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\128\ World Bank, Press Release: Latin America and the Caribbean
Must Seek to Contain the Costs from COVID-19 While Waiting for a
Vaccine, Oct. 9, 2020, available at https://www.worldbank.org/en/news/press-release/2020/10/09/latin-america-caribbean-contain-costs-covid19.
\129\ Abhaya Srivastava, India Infections Top Seven Million . .
. , Int. Bus. Times, Oct. 11, 2020.
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As of December 15, 2020, Mexico had 1,277,494 cumulative COVID-19
cases, including 166,733 new cases in October, 182,705 new cases in
November, and 115,967 new cases in December (as of December 15).\130\
Areas along the U.S. southwest border are also seeing a high number of
positive COVID-19 cases. For example, in Sonora, Mexico, there have
been 47,476 confirmed cases (and [3,759] deaths) as of December 15,
2020, including 4,075 new cases in October, 5,373 new cases in
November, and 2,090 new cases in December (as of December 15).).\131\
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\130\ Government of Mexico, COVID-19 Tracking Map, Graph of
Confirmed Cases, https://datos.covid-19.conacyt.mx/#DOView (last
visited December 17, 2020).
\131\ Government of Mexico, COVID-19 Tracking Map https://datos.covid-19.conacyt.mx/#COMNac and https://datos.covid-
19.conacyt.mx/fHDMap/(last visited December 17, 2020).
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The Departments disagree that this rulemaking is piecemeal or
duplicative, and reject the assertion that the NPRM was intended to
evade comprehensive evaluation and comment, or that the
[[Page 84187]]
timing of this rulemaking in conjunction with the Global Asylum NPRM
evidences bad faith. Though there is some overlap in function, these
separate rulemakings had different goals and responded to separate
emergencies. Namely, the Global Asylum NPRM sought to provide ``much-
needed guidance on the many critical, yet undefined, statutory terms
related to asylum applications [in a manner that] not only improves the
efficiency of the system as a whole, but allows adjudicators to focus
resources more effectively on potentially meritorious claims rather
than on meritless ones.'' \132\
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\132\ Global Asylum Final Rule, 85 FR at 80284.
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As discussed, the Security Bars NPRM sought to ensure the security
of the United States during a pandemic. Further, the Covid-19 pandemic
post-dates the Global Asylum NPRM. The Departments note that in
November of 2019, the Global Asylum NPRM was listed in the Fall 2019
Unified Agenda, approximately 2 months before the first reported cases
of Covid-19 in the United States.\133\ Finally, as stated above, this
final rule is narrowly tailored to apply under a discrete set of
circumstances generally limited in duration, whereas the Global Asylum
NPRM applied much more broadly and on a permanent basis (as does the
Global Asylum Final Rule). The Departments provided more than
sufficient notice of both rules, and the public has had ample
opportunity to participate in the rulemaking process.
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\133\ CDC, Press Release: First Travel-related Case of 2019
Novel Coronavirus Detected in United States (Jan 21, 2020),
available at https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html (last visited Nov. 12, 2020).
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The Departments disagree that this final rule is arbitrary and
capricious or that it ``ignores the significant reliance interests of
[the legal service provider] and organizations like it.'' Given the
narrow application of this rule to public health emergencies involving
communicable diseases that necessitate a response by the federal
agencies with primary jurisdiction over our immigration system, and the
infrequency of such responses in the past, it cannot be said that there
is a longstanding prior policy that may have engendered serious
reliance interests. When an agency changes course, it must ``be
cognizant that longstanding policies may have `engendered serious
reliance interests that must be taken into account.' '' \134\
---------------------------------------------------------------------------
\134\ Dept. of Homeland Sec. v. Regents of Univ. of Cal., 140
S.Ct. 1891, 1913 (2020).
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As prior to the COVID-19 public health emergency, the Departments
did not have a policy in place to guide the immigration system's
operations during public health emergencies involving communicable
diseases, there are no reliance interests to consider. Rather,
individuals or organizations will rely--during future public health
emergencies--upon the steps the Government takes now. Given that the
United States has significantly limited travel and admission during
times of other emergencies, such as in response to national security
threats from international terrorism,\135\ it is predictable that it
would take similar, expected measures limiting travel and admission in
response to a global pandemic.
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\135\ See Proclamation No. 9645, Enhancing Vetting Capabilities
and Processes for Detecting Attempted Entry into the United States
by Terrorists or Other Public-Safety Threats, 82 FR 45161 (Sept. 24,
2017).
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The commenter asserts, in essence, that it relied on the agency's
prior policy when it developed processes and educational material for
asylum seekers and for its staff and volunteers based on asylum law
``as it currently exists.'' It argued that the rule ``would require
[it] to expend significant resources to revise, reprint, and retrain
all of this existing materials and procedures, to the detriment of [the
organization] and the communities it serves.'' However, the United
States' asylum law is frequently in flux because it can be amended by
statute, regulation, policy, adjudication and by ever-evolving case law
in decisions issued by the Attorney General, the BIA, Circuit Courts of
Appeals and by the U.S. Supreme Court. As just one example, as the
Departments stated in Global Asylum NPRM, ``[t]he definition of
`particular social group' has been the subject of considerable
litigation and is a product of evolving case law, making it difficult
for EOIR's immigration judges and Board members, as well as DHS asylum
officers, to uniformly apply the framework.'' \136\
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\136\ Global Asylum NPRM, 85 FR at 36278.
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It is not reasonable for an organization to assume that asylum law
will remain static and not change in the future when developing
processes or education materials. The logical result of the commenter's
argument would be that any law firm or legal aid organization with a
specialized practice would have a legally recognized reliance interest
in maintaining the status quo of the law that concerns their clients.
While the Departments appreciate the efforts of legal service providers
to assist and educate the public, the interests raised by the commenter
are not those that may raise serious reliance interests under the
APA.\137\
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\137\ Some courts believe that such interests of organizational
plaintiffs establish standing, but that is a separate matter. See
East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265-67 (2020).
Article III of the Constitution limits the federal judicial power to
the adjudication of ``Cases'' and ``Controversies.'' U.S. CONST.
art. III, sec. 2, cl. 1. This is effectuated through the doctrine of
Article III standing. Spokeo v. Robins, 136 S. Ct. 1540, 1547
(2016); Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982).
An organization can also have third-party standing. See Kowalksi v.
Tesmer, 543 U.S. 125, 129-30 (2004).
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Finally, to the extent that such organizations have a reliance
interest based on their processes and educational materials, it is far
outweighed by the clear imperative to prevent the entry into the United
States, or the further spread within the country, of a deadly
contagious disease.
Reconciliation With Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review, 85 FR 36264 (July 15, 2020)
Comment: Multiple commenters stated that this NPRM was not
reconciled with the Global Asylum NPRM. Commenters argued that the
Global Asylum NPRM proposed changes that were inconsistent with the
changes outlined in the Security Bars and Processing NPRM. The
commenters stated that the Security Bars NPRM acknowledged the conflict
but did not indicate how the two rules would be reconciled and reasoned
that without knowledge of how the rules would be reconciled; the public
was not able to understand the full implications and adequately comment
on the NPRM. Some commenters stated that the overlapping and inconstant
language across the two notices of proposed rulemaking demonstrated
resulted in a waste of government and public time and resources.
Response: The Departments drafted the Security Bars NPRM to reflect
the regulatory framework at the time of publication. The Global Asylum
Final Rule has since been promulgated. 85 FR 80274 (December 11, 2020).
The Security Bars and Processing Final Rule reflects the changes made
to the regulatory framework by the Global Asylum Final Rule, except to
the extent that the Security Bars Final Rule further modifies that
framework. Certain of the provisions of the Security Bars NPRM have
been rendered moot by the Global Asylum Final Rule. For instance, the
Global Asylum Final Rule provided that all mandatory bars to
eligibility for asylum and withholding of removal shall be applied at
the credible fear stage, so there is no longer a need to
[[Page 84188]]
take that action specifically for the danger to the security of the
United States eligibility bar. As to the provisions of the Security
Bars NPRM that were not implemented by the Global Asylum Final Rule,
the Security Bars Final Rule makes appropriate modifications to the
post-Global Asylum regulatory framework to implement the provisions (as
modified from the NPRM in certain instances).
Additionally, as discussed, the Global Asylum Final Rule provided
that aliens who establish a credible fear of persecution, a reasonable
possibility of persecution, or a reasonable possibility of torture and
accordingly receive a positive fear determination will appear before an
immigration judge for ``asylum-and-withholding-only'' proceedings under
8 CFR 208.2(c)(1) and 8 CFR 1208.2(c)(1). Aliens receiving positive
fear determinations under the Security Bars Final Rule will be placed
in such asylum-and-withholding only proceedings rather than section 240
proceedings (as they would have under the NPRM), unless they are
removed to third countries.
3. Severability
Comment: One commenter appreciated the ``spirit'' of the
Departments' proposed severability clause, but stated that the clause
was unnecessary because, in the commenter's view, none of the rule's
provisions should be adopted.
Response: The relevant severability clause was added by the Global
Asylum Final Rule.\138\ A severability clause is a standard legal
provision that allows Congress and the Executive Branch to sever
certain provisions of a law or rule, if a court finds that they are
unconstitutional or unlawful, without nullifying the entire law or
rule. Those provisions that are unaffected by a legal ruling can be
implemented by an agency without requiring a new round of rulemaking
simply to effectuate provisions that are not subject to a court ruling.
The Departments believe that each of the provisions in the final rule
function sensibly independently of the other provisions, and thus, to
protect the rule's goals, the provisions are severable so that, if
necessary, the regulations can continue to function without a stricken
provision.
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\138\ 85 FR at 80284.
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4. Effective Date
Comment: A number of submissions expressed concern about the rule's
effective date. One commenter stated that the NPRM did not indicate
whether it would apply to those who submitted asylum applications
before its provisions became effective, and argued that doing so would
violate the well-settled presumption against retroactivity and have
serious impacts for asylum seekers. The commenter also expressed
concern that retroactive application would result in removal to a third
country for those who have previously filed for CAT protection based on
existing laws. Another commenter stated that applying the rule to those
with pending applications would unduly harm thousands of asylum
seekers, especially pro se applicants, by creating waste and
inefficiencies and by increasing asylum adjudication backlogs. Both
commenters asserted that retroactive application of law is permitted
only where expressly permitted by Congress, which they argue does not
apply here.
Response: The Departments disagree that this rule is being applied
retroactively. Contrary to the commenters' claims, and as previously
stated in the NPRM, 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 an applicable joint Secretary of Homeland Security and
Attorney General designation of an area or areas of the world as to
which it is necessary for the public health that certain aliens who
were present there be regarded as a danger to the security of the
United States, (1) filed asylum and withholding applications, or (2)
indicated a fear of return in expedited removal proceedings.'' The
final rule retains this prospective application.
Authority of Acting Secretary
Comment: Several commenters commented that Chad Wolf, the Acting
Secretary of Homeland Security, is serving in violation of the Federal
Vacancies Reform Act (``FVRA'') and lacked the authority to issue the
NPRM. A legal services provider and individual made the same argument
with respect to Chad Mizelle, the Senior Official Performing the Duties
of the General Counsel of DHS. An attorney quoted FVRA and commented
that under any timeline Acting Secretary Wolf's tenure has exceeded the
210-day limit in FVRA, and that no exception to the 210-limit applies
here. The commenter said that ignoring FVRA is no ``mere
technicality,'' and that doing so violates the constitutional principal
that the President must appoint principal officers with the advice and
consent of the Senate.
A legal services provider presented a timeline of the line of
succession of Acting Secretaries, arguing that Christopher Krebs,
Director of the Cybersecurity and Infrastructure Security Agency,
rather than Kevin McAleenan, should have succeeded Ms. Nielsen as
Acting Secretary. The commenter also argued that Mr. McAleenan exceeded
the 210-day limit provided by the FVRA, and thus that Mr. Wolf has no
valid claim to the office of Acting Secretary.
Response: As indicated in the proposed rule at section VI. H, Chad
Wolf, the Acting Secretary of Homeland Security, reviewed and approved
the proposed rule and delegated the signature authority to Mr. Mizelle.
Secretary Wolf is validly acting as Secretary of Homeland Security. On
April 9, 2019, then-Secretary Nielsen, who was Senate confirmed, used
the authority provided by 6 U.S.C. 113(g)(2) to establish the order of
succession for the Secretary of Homeland Security. This change to the
order of succession applied to any vacancy. This exercise of the
authority to establish an order of succession for DHS pursuant to 6
U.S.C. 113(g)(2) superseded the FVRA and the order of succession found
in Executive Order 13753, 81 FR 90667 (Dec. 9, 2016). As a result of
this change, and pursuant to 6 U.S.C. 113(g)(2), Kevin K. McAleenan,
who was Senate-confirmed as the Commissioner of CBP, was the next
successor and served as Acting Secretary without time limitation.
Acting Secretary McAleenan subsequently amended the Secretary's order
of succession pursuant to 6 U.S.C. 113(g)(2), placing the Under
Secretary for Strategy, Policy, and Plans position third in the order
of succession, below the positions of the Deputy Secretary and Under
Secretary for Management. Because the Deputy Secretary and Under
Secretary for Management positions were vacant when Mr. McAleenan
resigned, Mr. Wolf, as the Senate-confirmed Under Secretary for
Strategy, Policy, and Plans, was the next successor and began serving
as the Acting Secretary.
Further, because he has been serving as the Acting Secretary
pursuant to an order of succession established under 6 U.S.C.
113(g)(2), the FVRA's prohibition on a nominee's acting service while
his or her nomination is pending does not apply, and Mr. Wolf remains
the Acting Secretary notwithstanding President Trump's September 10
transmission to the Senate of Mr. Wolf's nomination to serve as DHS
Secretary. Compare 6 U.S.C. 113(a)(1)(A) (cross-referencing the FVRA
without the ``notwithstanding'' caveat), with id.
[[Page 84189]]
113(g)(1)-(2) (noting the FVRA provisions and specifying, in contrast,
that section 113(g) provides for acting secretary service
``notwithstanding'' those provisions); see also 5 U.S.C. 3345(b)(1)(B)
(restricting acting officer service under section 3345(a), in
particular, by an official whose nomination has been submitted to the
Senate for permanent service in that position).
That said, there have been recent challenges to whether Mr. Wolf's
service is invalid, resting on the erroneous contention that the orders
of succession issued by former Secretary Nielsen and former Acting
Secretary McAleenan were invalid. The Departments believe those
challenges are not based on an accurate view of the law. But even if
those contentions are legally correct--meaning that neither former
Secretary Nielsen nor former Acting Secretary McAleenan issued a valid
order of succession--under 6 U.S.C. 113(g)(2)--then the FVRA would have
applied, and Executive Order 13753 would have governed the order of
succession for the Secretary of Homeland Security from the date of
former Secretary Nielsen's resignation.
The FVRA provides an alternative basis for an official to exercise
the functions and duties of the Secretary temporarily in an acting
capacity. In that alternate scenario, under the authority of the FVRA,
Mr. Wolf would have been ineligible to serve as the Acting Secretary of
DHS after his nomination was submitted to the Senate, 5 U.S.C.
3345(b)(1)(B), and Peter Gaynor, the Administrator of the Federal
Emergency Management Agency (``FEMA''), would have--by operation of
Executive Order 13753--become eligible to exercise the functions and
duties of the Secretary temporarily in an acting capacity. This is
because Executive Order 13753 pre-established the President's
succession order for DHS when the FVRA applies. Mr. Gaynor would have
been the most senior official eligible to exercise the functions and
duties of the Secretary under that succession order, and thus would
have become the official eligible to act as Secretary once Mr. Wolf's
nomination was submitted to the Senate. 5 U.S.C. 3346(a)(2). Then, in
this alternate scenario in which, as assumed above, there was no valid
succession order under 6 U.S.C. 113(g)(2), the submission of Mr. Wolf's
nomination to the Senate would have restarted the FVRA's time limits. 5
U.S.C. 3346(a)(2).
Out of an abundance of caution, and to minimize any disruption to
DHS and to the Administration's goal of maintaining homeland security,
on November 14, 2020, with Mr. Wolf's nomination still pending in the
Senate, Mr. Gaynor exercised the authority of Acting Secretary that he
would have had (in the absence of any governing succession order under
6 U.S.C. 113(g)(2)) to designate a new order of succession under 6
U.S.C. 113(g)(2) (the ``Gaynor Order'').\139\ In particular, Mr. Gaynor
issued an order of succession with the same ordering of positions
listed in former Acting Secretary McAleenan's November 2019 order. The
Gaynor Order thus placed the Under Secretary for Strategy, Policy, and
Plans above the FEMA Administrator in the order of succession. Once the
Gaynor Order was executed, it superseded any authority Mr. Gaynor may
have had under the FVRA and confirmed Mr. Wolf's authority to continue
to serve as the Acting Secretary. Hence, regardless of whether Mr. Wolf
already possessed authority pursuant to the November 8, 2019, order of
succession effectuated by former Acting Secretary McAleenan (as the
Departments have previously concluded), the Gaynor Order provides an
alternative basis for concluding that Mr. Wolf currently serves as the
Acting Secretary.\140\
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\139\ Mr. Gaynor signed an order that established an identical
order of succession on September 10, 2020, the day Mr. Wolf's
nomination was submitted, but it appears he signed that order before
the nomination was received by the Senate. To resolve any concern
that his September 10 order was ineffective, Mr. Gaynor signed a new
order on November 14, 2020. Prior to Mr. Gaynor's new order, the
U.S. District Court for the District of New York issued an opinion
concluding that Mr. Gaynor did not have authority to act as
Secretary, relying in part on the fact that DHS did not notify
Congress of Administrator Gaynor's service, as required under 5
U.S.C. 3349(a). Batalla Vidal v. Wolf, No. 16CV4756NGGVMS, 2020 WL
6695076, at *9 (E.D.N.Y. Nov. 14, 2020). The Departments disagree
that the FVRA's notice requirement affects the validity of an acting
officer's service; nowhere does section 3349 indicate that agency
reporting obligations are tied to an acting officer's ability to
serve.
\140\ On October 9, 2020, the U.S. District Court for the
District of Columbia issued an opinion indicating that it is likely
that section 113(g)(2) orders can be issued by only Senate-confirmed
secretaries of DHS and, thus, that Mr. Gaynor likely had no
authority to issue a section 113(g)(2) succession order. Nw.
Immigrant Rights Project v. United States Citizenship & Immigration
Servs., No. CV 19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct.
8, 2020). This decision is incorrect because the authority in
section 113(g)(2) allows ``the Secretary'' to designate an order of
succession, 6 U.S.C. 113(g)(2), and an ``acting officer is vested
with the same authority that could be exercised by the officer for
whom he acts.'' In re Grand Jury Investigation, 916 F.3d 1047, 1055
(D.C. Cir. 2019). The Acting Secretary of DHS is accordingly
empowered to exercise the authority of ``the Secretary'' of DHS to
``designate [an] order of succession.'' 6 U.S.C. 113(g)(2). In
addition, this is the only district court opinion to have reached
such a conclusion about the authority of the Acting Secretary, and
the Departments are contesting that determination.
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On November 16, 2020, Acting Secretary Wolf ratified any and all
actions involving delegable duties that he took between November 13,
2019, through November 16, 2020, including the NPRM that is the subject
of this rulemaking.
Under section 103(a)(1) of the Act, 8 U.S.C. 1103(a)(1), the
Secretary is charged with the administration and enforcement of the INA
and all other immigration laws (except for the powers, functions, and
duties of the President, the Attorney General, and certain consular,
diplomatic, and Department of State officials). The Secretary is also
authorized to delegate his or her authority to any officer or employee
of the agency and to designate other officers of the Department to
serve as Acting Secretary. INA 103, 8 U.S.C. 1103, and 6 U.S.C.
113(g)(2). The Homeland Security Act further provides that every
officer of the Department ``shall perform the functions specified by
law for the official's office or prescribed by the Secretary.'' 6
U.S.C. 113(f). Thus, the designation of the signature authority from
Acting Secretary Wolf to Mr. Mizelle is validly within the Acting
Secretary's authority.
VII. Provisions of the Final Rule
The Departments have considered and responded to the comments
received in response to the proposed rule. The Departments are now
issuing this final rule to finalize the NPRM.
This final rule makes the following changes to the regulatory
provisions in the proposed rule, some of which were noted by
commenters, and to certain regulatory provisions not addressed in the
proposed rule as necessitated by the intervening promulgation of the
Global Asylum Final Rule.
1. 208.13
As discussed earlier, the final rule clarifies that the bar it
establishes to asylum eligibility (implementing the Departments'
understanding of the INA's danger to the security of the United States
bars) is ``categorical'' in the following manner.
First, if a communicable disease has triggered an ongoing
declaration of a public health emergency under Federal law, such as
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,
then an alien is ineligible for asylum on the basis of there being
reasonable grounds for regarding the alien as a danger to the security
of the United States if the alien
(A) exhibits symptoms indicating that he or she is afflicted with
the disease,
[[Page 84190]]
per guidance issued by the Secretary or the Attorney General, as
appropriate, or
(B) has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period,
per guidance issued by the Secretary or the Attorney General, as
appropriate.
Second, if, regarding a communicable disease of public health
significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (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
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
[paragraph] (A) who are still within the number of days equivalent to
the longest known incubation and contagion period for the disease be
regarded as a danger to the security of the United States, including
any relevant exceptions as appropriate,
Then, an alien or class of aliens are ineligible for asylum on the
basis of there being reasonable grounds for regarding the alien or
class of aliens as a danger to the security of the United States if the
alien or class of aliens are described in (A) and are regarded as a
danger to the security of the United States as provided for in (B).
Finally, the rule uses the more precise term ``communicable''
disease'' rather than ``communicable or infectious'' disease.\141\
---------------------------------------------------------------------------
\141\ See footnote 1. The Departments also make this change
elsewhere to the regulatory text in the NPRM.
---------------------------------------------------------------------------
2. 208.16(d)(2)
Also as discussed earlier, the final rule clarifies that the bar it
establishes to eligibility for withholding of removal is
``categorical'' in the following manner.
First, if a communicable disease has triggered an ongoing
declaration of a public health emergency under Federal law, such as
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,
then an alien is ineligible for withholding of removal on the basis of
there being reasonable grounds for regarding the alien as a danger to
the security of the United States if the alien
(A) exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate, or
(B) has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period,
per guidance issued by the Secretary or the Attorney General, as
appropriate.
Second, if, regarding a communicable disease of public health
significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (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
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
[paragraph] (A) who are still within the number of days equivalent to
the longest known incubation and contagion period for the disease be
regarded as a danger to the security of the United States, including
any relevant exceptions as appropriate,
Then, an alien or class of aliens are ineligible for withholding of
removal on the basis of there being reasonable grounds for regarding
the alien or class of aliens as a danger to the security of the United
States if the alien or class of aliens are described in (A) and are
regarded as a danger to the security of the United States as provided
for in (B).
3. 208.16(f)
As discussed, the Departments include language clarifying that
aliens must be notified of the identity of a prospective third country
of removal.
4. 208.30(e)(1)
As the Departments explained earlier, we acknowledge the ambiguity
that may have been created from the proposed amendment to section
208.30(e)(1). The proposed language was simply designed to clarify that
when an asylum officer creates a written record of his or her
determination following a credible fear interview, it should, as
applicable, include a written record of their determination as to
whether the alien has demonstrated that it is more likely than not that
he or she would be tortured in the country of removal. The Departments
have revised the language of the proposed amendment to section
208.30(e)(1) (now found at 208.30(e)(4) following the promulgation of
the Global Asylum Final Rule) to make it clearer that the written
record of determination should include, as applicable, 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.
5. 208.30(e)(5)(i)
First, the final rule places the contents of 208.30(e)(5)(i)(B)
into 208.30(e)(5)(iv) to reflect the fact that pursuant to the Global
Asylum Final Rule, all the mandatory bars to eligibility for asylum and
withholding of removal apply at the credible fear stage.
Second, under the NPRM, the introductory text to 208.30(e)(5)(i)(B)
discussed the situation where an alien would be able to establish a
credible fear of persecution but for the fact that he or she was
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. However, 208.30(e)(5)(i)(B)(3)
discussed the opposite situation, where an alien fails to establish
that it is more likely than not that he or she would be tortured in the
prospective country of removal. Section 208.30(e)(5)(iv)(A) as
restructured in the final rule eliminates this awkward construction.
Third, as the Department explained earlier, the final rule strikes
the phrase ``affirmatively establish'', and replaces it with
``establish'', in the context of describing what an alien needs to do
to demonstrate that he or she is more likely than not to be tortured in
a prospective country of removal during a screening for potential
eligibility for deferral of removal. The adverb
[[Page 84191]]
``affirmatively'' was included in the NPRM to make clear that an alien
has the burden of proof to establish that he or she would be more
likely than not to be tortured in a prospective third country of
removal. As ``affirmatively'' may cause confusion and is not necessary
to clarify the burden of proof, which clearly rests with the alien, the
final rule deletes the word ``affirmatively'' from the regulatory text
in the final rule.
Fourth, the Departments agree that an alien should be informed of
the identity of a prospective third country of removal, provided with
an opportunity to raise a fear of torture if removed to that country,
and to have that fear assessed to determine whether he or she has
established that they are more likely than not to be tortured in that
third country of removal. That was always the Departments' intent, and
the Departments accordingly include language in the final rule making
it clear.
6. 208.30(e)(5)(iii)
As mentioned earlier, the Departments recently promulgated the
Third-Country Transit Final Rule and the Global Asylum Final Rule. As
these rules supersede the Third-Country Transit IFR, the final rule
modifies the NPRM's proposed changes to the Third-Country Transit IFR's
regulatory text to reflect the now-operative text. Also, the final rule
deletes the adverb ``affirmatively'' as in 208.30(e)(5)(iv).
As an alien typically does not formally request withholding of
removal in the context of expedited removal proceedings, the rule also
clarifies that aliens should be advised of the possibility of being
removed to a third country at the time they are determined to be
subject to the mandatory bar to eligibility for withholding of removal
under section 241(b)(3)(B)(iv) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture, and clarifies that such aliens should be given the opportunity
to proceed to removal pursuant to section 241(b) of the Act.
Finally, the language in the NPRM relied on the definition of a
``reasonable fear of persecution'' found at 8 CFR 208.31(c), which did
not require an alien to demonstrate, in order to establish a reasonable
fear, that he or she was not subject to the bars to eligibility for
withholding of removal contained in section 241(b)(3)(B) of the INA, 8
U.S.C. 1231(b)(3)(B). However, the final rule relies on the definition
of a ``reasonable possibility of persecution'', as added by the Global
Asylum Final Rule. An alien is required to demonstrate, in order to
establish a reasonable possibility of persecution, that he or she is
not subject to these bars to eligibility for withholding of removal. 8
CFR 208.30(e)(2). The final rule makes conforming changes reflecting
this fact.
7. 208.30(e)(5)(iv)
As mentioned, the final rule places the contents of
208.30(e)(5)(i)(B) into 208.30(e)(5)(iv) to reflect the fact that
pursuant to the Global Asylum Final Rule, all the mandatory bars to
eligibility for asylum and withholding of removal apply at the credible
fear stage.
As mentioned above, as an alien typically does not formally request
withholding of removal in the context of expedited removal proceedings,
the rule clarifies that aliens should be advised of the possibility of
being removed to a third country at the time they are determined to be
subject to the mandatory bar to eligibility for withholding of removal
under section 241(b)(3)(B)(iv) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture, and clarifies that such aliens should be given the opportunity
to proceed to removal pursuant to section 241(b) of the Act.
Finally, as the Departments noted earlier, the utilization of the
``more likely than not'' standard in deferral screenings only applies
to aliens determined to be ineligible for asylum and withholding of
removal pursuant to the danger to the security of the United States
eligibility bars, or ineligible for asylum pursuant to the Third-
Country Transit Final Rule. Aliens determined by asylum officers to be
ineligible for asylum or withholding pursuant to the other mandatory
bars will continue to be screened for deferral of removal under the
reasonable possibility of torture standard, as provided by the Global
Asylum Final Rule. Thus, for aliens determined to be ineligible for
asylum and withholding of removal pursuant to the danger to the
security of the United States eligibility bars, or ineligible for
asylum pursuant to the Third-Country Transit Final Rule, immigration
judges will review the asylum officers' determinations on a de novo
basis as to whether aliens have established they are more likely than
not to be tortured, just as in reviewing credible fear of persecution
and reasonable possibility of persecution and torture determinations.
8. 208.30(f)
The final rule makes a clarifying change to reflect the new ``more
likely than not'' screening standard for potential eligibility for
deferral of removal.
As the Departments noted earlier, the restoration of DHS's
discretionary ability to remove certain aliens to third countries only
applies to aliens determined to be ineligible for asylum and
withholding of removal pursuant to the danger to the security of the
United States eligibility bars, or ineligible for asylum pursuant to
the Third-Country Transit Final Rule. Aliens determined by asylum
officers to be ineligible for asylum or withholding pursuant to the
other mandatory bars will continue to be screened for deferral of
removal under the reasonable possibility of torture standard, as
provided by the Global Asylum Final Rule, and placed in immigration
court for asylum-and-withholding-only removal proceedings should they
establish such a reasonable possibility. Aliens will not be removed to
a third country without having first been provided an opportunity to
demonstrate that they are more likely than not to be tortured in that
country.
9. 208.30(g)
The final rule makes a clarifying change to reflect the new ``more
likely than not'' screening standard for potential eligibility for
deferral of removal.
10. 235.6
The final rule makes a clarifying change to reflect the new
screening standard for potential eligibility for deferral of removal.
11. 1003.42
The final rule makes a clarifying change to reflect the new
screening standard for potential eligibility for deferral of removal.
12. 1208.13
The final rule makes changes analogous to those made to 208.13.
13. 1208.16
The final rule makes changes analogous to those made to 208.16.
14. 1208.16(f)
The final rule makes changes analogous to those made to 208.16(f).
As the Departments noted earlier, the restoration of DHS's
discretionary ability to remove certain aliens to third countries only
applies to aliens determined to be ineligible for asylum and
withholding of removal pursuant to the danger to the security of the
United
[[Page 84192]]
States eligibility bars (or ineligible for asylum pursuant to the
Third-Country Transit Final Rule). Aliens determined by asylum officers
to be ineligible for asylum or withholding pursuant to the other
mandatory bars will continue to be screened for deferral of removal
under the reasonable possibility of torture standard, as provided by
the Global Asylum Final Rule, and placed in immigration court for
asylum-and-withholding-only removal proceedings should they establish
such a reasonable possibility. Aliens will not be removed to a third
country without having first been provided an opportunity to
demonstrate that they are more likely than not to be tortured in that
country.
15. 1208.30(g)
The final rule makes clarifying changes to reflect the new
screening standard for potential eligibility for deferral of removal
and the ability of DHS to exercise its prosecutorial discretion to
remove certain aliens to third countries.
As the Departments noted earlier, the utilization of the ``more
likely than not'' standard in deferral screenings only applies to
aliens determined to be ineligible for asylum and withholding of
removal pursuant to the danger to the security of the United States
eligibility bars (or ineligible for asylum pursuant to the Third-
Country Transit Final Rule). Aliens determined by asylum officers to be
ineligible for asylum or withholding of removal pursuant to the other
mandatory bars will continue to be screened for deferral of removal
under the reasonable possibility of torture standard, as provided by
the Global Asylum Final Rule.
16. 1235.6
The final rule makes a clarifying change to reflect the new
screening standard for potential eligibility for deferral of removal.
VIII. Regulatory Requirements
A. Regulatory Flexibility Act
The Departments have reviewed this 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 does not regulate
``small entities'' as that term is defined in 5 U.S.C. 601(6). 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 rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Congressional Review Act
This rule is not a major rule as defined by section 804 of the
Congressional Review Act. 5 U.S.C. 804. This rule will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets.
D. Executive Order 12866, Executive Order 13563, and Executive Order
13771
This rule amends existing regulations to clarify that the statutory
``danger to the security of the United States'' bars to eligibility for
asylum and withholding of removal under INA sections 208 and 241 and 8
CFR 208.13 and 1208.13 and 8 CFR 208.16 and 1208.16, apply in certain
contexts involving public health crises caused by communicable diseases
so that aliens can be expeditiously removed, as appropriate.
The rule further allows 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 that it is more likely than not that
they will be tortured in the prospective country of removal. It
provides DHS with the option to either place such aliens into asylum
and withholding only proceedings, or remove them to countries with
respect to which the aliens have not established that it is more likely
than not that they would be tortured. Finally, the rule modifies 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 or believed to be a danger to the security of
the United States.
In some cases, asylum officers and immigration judges will need to
spend additional time during the credible fear process to determine
whether an alien is ineligible for asylum or withholding of removal
based on being reasonably regarded as a danger to the security of the
United States and whether an alien is more likely than not to be
tortured in a prospective country of removal. However, the overall
impact on the time spent making (and, in the case of immigration
judges, reviewing) screening determinations will be minimal.
Additionally, the Departments do not expect the changes to increase the
adjudication time for immigration court proceedings. The Departments
note that the changes may result in fewer positive credible fear
determinations and fewer asylum and withholding and deferral of removal
grants during periods of public health crises, but will have no effect
at times public health conditions do not trigger a security bar
designation under this rule.
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 positive credible fear
determinations and grants of relief and protection. The full extent of
the impacts on this population is unclear and will 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 changes may also result in fewer aliens being placed in
asylum-and-withholding-only 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 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
regulation.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, the Departments believe that this rule will not
have sufficient federalism implications to warrant the
[[Page 84193]]
preparation of a federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in section 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This rule does not create 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.
List of Subjects
8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 235
Inspection of Persons Applying for Admission.
8 CFR Part 1003
Executive Office for Immigration Review.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1235
Inspection of Persons Applying for Admission.
Regulatory Amendments
Department of Homeland Security
Accordingly, for the reasons set forth in the preamble, the Acting
Secretary of Homeland Security amends 8 CFR parts 208 and 235 as
follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
1. The authority citation for part 208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; 8 CFR part 2; Pub. L. 115-218.
0
2. Amend Sec. 208.13 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--(i) Public health emergencies. If a communicable disease has
triggered an ongoing declaration of a public health emergency under
Federal law, such as 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, then an alien is ineligible for asylum under
section 208 of the Act on the basis of there being reasonable grounds
for regarding the alien as a danger to the security of the United
States under section 208(b)(2)(A)(iv) of the Act if the alien:
(A) Exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate, or
(B) Has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period
for the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate.
(ii) Danger to the public health caused by an epidemic outside of
the United States. If, regarding a communicable disease of public
health significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly--
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (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
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
paragraph (c)(10)(ii)(A) of this section who are still within the
number of days equivalent to the longest known incubation and contagion
period for 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, then--
(C) An alien or class of aliens are ineligible for asylum under
section 208 of the Act on the basis of there being reasonable grounds
for regarding the alien or class of aliens as a danger to the security
of the United States under section 208(b)(2)(A)(iv) of the Act if the
alien or class of aliens are described in (c)(10)(ii)(A) of this
section and are regarded as a danger to the security of the United
States as provided for in paragraph (c)(10)(ii)(B) of this section.
(iii) The grounds for mandatory denial described in paragraphs
(c)(10)(i) and (ii) of this section shall not apply to an alien who is
applying for asylum or withholding of removal in the United States upon
return from Canada to the United States and pursuant to the Agreement
Between the Government of the United States and the Government of
Canada for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries.
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--(i) In general. 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 the regulations
issued pursuant to the legislation implementing the Convention Against
Torture 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.
[[Page 84194]]
(ii) Public health emergencies. If a communicable disease has
triggered an ongoing declaration of a public health emergency under
Federal law, such as 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, then an alien is ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien as a danger to the security of the United States under
section 241(b)(3)(B)(iv) of the Act if the alien
(A) Exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate, or
(B) Has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period
for the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate.
(iii) Danger to the Public Health Caused by an Epidemic Outside of
the United States. If, regarding a communicable disease of public
health significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (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
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
paragraph (d)(2)(ii)(A) of this section who are still within the number
of days equivalent to the longest known incubation and contagion period
for 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, then--
(C) An alien or class of aliens are ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien or class of aliens as a danger to the security of the United
States under section 241(b)(3)(B)(iv) of the Act if the alien or class
of aliens are described in paragraph (d)(2)(ii)(A) of this section and
are regarded as a danger to the security of the United States as
provided for in paragraph (d)(2)(ii)(B) of this section.
(iv) The grounds for mandatory denial described in paragraphs
(d)(2)(ii) and (iii) of this section shall not apply to an alien who is
applying for asylum or withholding of removal in the United States upon
return from Canada to the United States and pursuant to the Agreement
Between the Government of the United States and the Government of
Canada for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries.
* * * * *
(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,
after being notified of the identity of the prospective third country
of removal and provided an opportunity to demonstrate that he or she is
more likely than not to be tortured in that third country, the alien
fails to establish that they are more likely than not to be tortured
there. 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; 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. Amend Sec. 208.30 by revising paragraph (e)(4)(e)(5)(i)(A) and (B)
and (e)(5)(iii), adding paragraph (e)(5)(iv), and revising paragraphs
(f) introductory text, (f)(1), and (g)(1) 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) * * *
(4) In all cases, the asylum officer will create a written record
of his or her determination, including a summary of the material facts
as stated by the alien, 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, reasonable
possibility of persecution, reasonable possibility of torture or that
it is more likely than not that he or she would be tortured in the
prospective country of removal. In determining whether the alien has a
credible fear of persecution, as defined in section 235(b)(1)(B)(v) of
the Act, a reasonable possibility of persecution or torture, or that it
is more likely than not that he or she would be tortured in the
prospective country of removal, 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.
(5)(i)(A) Except as provided in paragraphs (e)(5)(ii) through (iv)
or paragraph (e)(6) or (7) of this section, if an alien would be able
to establish a credible fear of persecution but for the fact that the
alien is subject to one or more of the mandatory bars to applying for
asylum or being eligible for asylum contained in section 208(a)(2)(B)-
(D) and (b)(2) of the Act, including any bars established by regulation
under section 208(b)(2)(C) of the Act, then the asylum officer will
enter a negative credible fear of persecution determination with
respect to the alien's eligibility for asylum.
(B) If an alien described in paragraph (e)(5)(i)(A) of this section
is able to establish either a reasonable possibility of persecution
(including by establishing that he or she is not subject to one or more
of the mandatory bars to eligibility for withholding of removal
contained in section 241(b)(3)(B) of the Act) or a reasonable
possibility of torture, then the asylum officer will enter a positive
reasonable possibility of persecution or torture determination, as
[[Page 84195]]
applicable. The Department of Homeland Security shall place the alien
in asylum-and-withholding-only proceedings under 8 CFR 1208.2(c)(1) for
full consideration of the alien's claim for withholding of removal
under section 241(b)(3) of the Act or withholding or deferral of
removal under the regulations issued pursuant to the implementing
legislation for the Convention Against Torture.
* * * * *
(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
application for asylum. If the alien--
(A) Establishes, respectively, a reasonable possibility of
persecution (including by establishing that he or she is not subject to
one or more of the mandatory bars to eligibility for withholding of
removal contained in section 241(b)(3)(B) of the Act) or torture; or
(B) Would be able to establish a reasonable possibility of
persecution 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 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 asylum-and-withholding-only proceedings under 8 CFR
208.2(c)(1) for full consideration of the alien's claim for asylum
under section 208 of the Act, withholding of removal under section
241(b)(3) of the Act or withholding or deferral of removal under the
regulations issued pursuant to the implementing legislation for the
Convention Against Torture, or remove the alien to a third country.
(1) If the Department places the alien in asylum-and-withholding-
only proceedings under 8 CFR 208.2(c)(1), then the immigration judge
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 a third
country, it shall do so in a manner consistent with section 241 of the
Act and Sec. 241.15, including by not removing the alien to a third
country in which, after being notified of the identity of the
prospective third country of removal the alien has established during
an interview with an asylum officer that he or she is more likely than
not to be tortured in that country. Further, such a removal to a third
country shall be executed only if the alien was:
(i) Advised at the time of being determined to be subject to the
mandatory bar to eligibility for withholding of removal under section
241(b)(3)(B)(iv) of the Act and under the regulations issued pursuant
to the legislation implementing the Convention Against Torture 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, and
(ii) Provided, but did not accept, an opportunity to proceed to
removal pursuant to section 241(b) of the Act, as appropriate.
(C) If an alien fails to establish a reasonable possibility of
persecution or torture and is unable, during an interview with the
asylum officer, to establish 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 immigration judge review consistent with
paragraph (g) of this section,
(iv)(A) Except as provided in paragraphs (e)(5)(ii) and (iii) or
paragraph (e)(6) or (7) of this section, if an alien would be able to
establish a credible fear of persecution or a reasonable possibility of
persecution but for the fact that the alien is subject to the mandatory
bars to being eligible for asylum contained in section 208(b)(2)(A)(iv)
of the Act and to withholding of removal contained in section
241(b)(3)(B)(iv) of the Act:
(1) If the alien fails to 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 immigration judge review consistent with paragraph (g) of
this section;
(2) If the alien 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 asylum-and-withholding-only
proceedings under 8 CFR 208.2(c)(1) for full consideration of the
alien's claim for asylum under section 208 of the Act, withholding of
removal under section 241(b)(3) of the Act or withholding or deferral
of removal under the regulations issued pursuant to the implementing
legislation for the Convention Against Torture, or remove the alien to
a third country.
(i) If the Department places the alien in asylum-and-withholding-
only proceedings under 8 CFR 208.2(c)(1), 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.
(ii) If the Department decides to remove the alien to a third
country, it shall do so in a manner consistent with section 241 of the
Act and Sec. 241.15, including by not removing the alien to a third
country in which, after being notified of the identity of the proposed
third country of removal, the alien has established that he or she
would be more likely than not to be tortured. Further, such a removal
shall be executed only if the alien was advised at the time of being
determined to be subject to the mandatory bar to eligibility for
withholding of removal under section 241(b)(3)(B)(iv) of the Act and
under the regulations issued pursuant to the legislation implementing
the Convention Against Torture 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)(iv) and
provided with, but did not accept, an opportunity to proceed to removal
pursuant to section 241(b) of the Act, as appropriate.
(f) Procedures for a positive fear determination. If, pursuant to
paragraph (e) of this section, an alien stowaway or an alien subject to
expedited removal establishes either a credible fear of persecution,
reasonable possibility of persecution, a reasonable possibility of
torture, or that it is more likely than not that they would be tortured
in the prospective country of removal:
(1) Except as provided in paragraphs (e)(5)(iii) through (iv) of
this section, DHS shall issue a Notice of Referral to Immigration Judge
for asylum-and-withholding-only proceedings under 8 CFR 208.2(c)(1).
* * * * *
(g) * * *
(1) If, pursuant to paragraphs (e) and (f) of this section, an
alien does not establish a credible fear of persecution, reasonable
possibility of persecution, reasonable possibility of torture, or that
he or she is more likely than not to be tortured in the prospective
country of removal, DHS shall provide the alien with a written notice
of decision and inquire whether the alien wishes to have an immigration
judge review the
[[Page 84196]]
negative determination, in accordance with section
235(b)(1)(B)(iii)(III) of the Act and this Sec. 208.30. The alien must
indicate whether he or she desires such review on a Record of Negative
Fear Finding and Request for Review by Immigration Judge. If the alien
refuses to make an indication, DHS shall consider such a response as a
decision to decline review.
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
5. The authority citation for part 235 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2004 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of
Public Law 110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-
458); Public Law 112-54; Public Law 115-218.
0
6. Amend Sec. 235.6 by revising paragraph (a)(2)(i) to read as
follows:
Sec. 235.6 Referral to immigration judge.
(a) * * *
(2) * * *
(i) If an asylum officer determines that the alien has not
established a credible fear of persecution, reasonable possibility of
persecution, reasonable possibility of torture, or that it is more
likely than not that the alien would be tortured in the prospective
country of removal, and the alien requests a review of that
determination by an immigration judge; or
* * * * *
Department of Justice
Accordingly, for the reasons set forth in the preamble, and by the
authority vested in the Director, Executive Office for Immigration
Review, by the Attorney General Order Number 4910-2020, the Department
amends parts 1003, 1208, and 1235 of title 8 of the Code of Federal
Regulations as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
7. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Public Law 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Public Law 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Public Law 106-554, 114 Stat. 2763A-326 to -328.
0
8. Amend Sec. 1003.42 by revising paragraph (d)(1) to read as follows:
Sec. 1003.42 Review of credible fear determination.
* * * * *
(d) * * *
(1) The immigration judge shall make a de novo determination as to
whether there is a significant possibility, taking into account the
credibility of the statements made by the alien in support of the
alien's claim, whether the alien is subject to any mandatory bars to
applying for asylum or being eligible for asylum under section
208(a)(2)(B)-(D) and (b)(2) of the Act, including any bars established
by regulation under section 208(b)(2)(C) of the Act, and such other
facts as are known to the immigration judge, that the alien could
establish his or her ability to apply for or be granted asylum under
section 208 of the Act. The immigration judge shall make a de novo
determination as to whether there is a reasonable possibility, taking
into account the credibility of the statements made by the alien in
support of the alien's claim, whether the alien is subject to any
mandatory bars to eligibility for withholding of removal under section
241(b)(3)(B) of the Act, and such other facts as are known to the
immigration judge, that the alien would be persecuted on account of his
or her race, religion, nationality, membership in a particular social
group, or political opinion in the country of removal, consistent with
the criteria in 8 CFR 1208.16(b). The immigration judge shall also make
de novo determinations as to whether there is a reasonable possibility
that the alien would be tortured in the country of removal and whether
it is more likely than not that the alien would be tortured in the
country of removal, in both instances 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 immigration
judge, consistent with the criteria in 8 CFR 1208.16(c), 8 CFR 1208.17,
and 8 CFR 1208.18.
* * * * *
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
9. 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 Public Law 110-229; Public Law 115-218.
0
10. Amend Sec. 1208.13 by adding paragraph (c)(10) to read as follows:
Sec. 1208.13 Establishing asylum eligibility.
* * * * *
(c) * * *
(10)(i) Public health emergencies. If a communicable disease has
triggered an ongoing declaration of a public health emergency under
Federal law, such as 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, then an alien is ineligible for asylum under
section 208 of the Act on the basis of there being reasonable grounds
for regarding the alien as a danger to the security of the United
States under section 208(b)(2)(A)(iv) of the Act if the alien--
(A) Exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate, or
(B) Has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period
for the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate.
(ii) Danger to the public health caused by an epidemic outside of
the United States. If, regarding a communicable disease of public
health significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly--
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (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
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
paragraph (c)(1)(ii)(A) of this section who are still within the number
of days equivalent to the longest known incubation and contagion period
for 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, then--
(C) An alien or class of aliens are ineligible for asylum under
section 208
[[Page 84197]]
of the Act on the basis of there being reasonable grounds for regarding
the alien or class of aliens as a danger to the security of the United
States under section 208(b)(2)(A)(iv) of the Act if the alien or class
of aliens are described in paragraph (c)(10)(ii)(A) of this section and
are regarded as a danger to the security of the United States as
provided for in paragraph (c)(10)(ii)(B) of this section.
(iii) The grounds for mandatory denial described in paragraphs
(c)(10)(i) and (ii) of this section shall not apply to an alien who is
applying for asylum or withholding of removal in the United States upon
return from Canada to the United States and pursuant to the Agreement
Between the Government of the United States and the Government of
Canada for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries.
0
11. 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--(i) In general. 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 the regulations
issued pursuant to the legislation implementing the Convention Against
Torture 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.
(ii) Public health emergencies. If a communicable disease has
triggered an ongoing declaration of a public health emergency under
Federal law, such as 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, then an alien is ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien as a danger to the security of the United States under
section 241(b)(3)(B)(iv) of the Act if the alien--
(A) Exhibits symptoms indicating that he or she is afflicted with
the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate; or
(B) Has come into contact with the disease within the number of
days equivalent to the longest known incubation and contagion period
for the disease, per guidance issued by the Secretary or the Attorney
General, as appropriate.
(iii) Danger to the public health caused by an epidemic outside of
the United States. If, regarding a communicable disease of public
health significance as defined at 42 CFR 34.2(b), the Secretary and the
Attorney General, in consultation with the Secretary of Health and
Human Services, have jointly--
(A) Determined that the physical presence in the United States of
aliens who are coming from a country or countries (or one or more
subdivisions or regions thereof), or have embarked at a place or
places, where such disease is prevalent or epidemic (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
subdivisions or regions thereof), or place or places, and the period of
time or circumstances under which they jointly deem it necessary for
the public health that aliens or classes of aliens described in
paragraph (d)(2)(iii)(A) of this section who are still within the
number of days equivalent to the longest known incubation and contagion
period for 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, then--
(C) An alien or class of aliens are ineligible for withholding of
removal under section 241(b)(3) of the Act and under the regulations
issued pursuant to the legislation implementing the Convention Against
Torture on the basis of there being reasonable grounds for regarding
the alien or class of aliens as a danger to the security of the United
States under section 241(b)(3)(B)(iv) of the Act if the alien or class
of aliens are described in paragraph (d)(2)(iii)(A) of this section and
are regarded as a danger to the security of the United States as
provided for in paragraph (d)(2)(iii)(B) of this section.
(iv) The grounds for mandatory denial described in paragraphs
(d)(2)(ii) and (iii) of this section shall not apply to an alien who is
applying for asylum or withholding of removal in the United States upon
return from Canada to the United States and pursuant to the Agreement
Between the Government of the United States and the Government of
Canada for Cooperation in the Examination of Refugee Status Claims from
Nationals of Third Countries)
* * * * *
(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, after being notified of the identity of the prospective
third country of removal and provided an opportunity to demonstrate
that he or she is more likely than not to be tortured in that third
country, the alien fails to establish that they are more likely than
not to be tortured there. 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, 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
12. Amend Sec. 1208.30 by revising paragraphs (e), (g)(1)(ii),
(g)(2)(i), and (g)(2)(iv)(A) and (B) to read as follows:
[[Page 84198]]
Sec. 1208.30 Credible fear determinations of persecution, reasonable
possibility of persecution, and reasonable possibility of torture
determinations involving stowaways and applicants for admission who are
found inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the
Act, 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 of persecution, reasonable
possibility of persecution, and reasonable possibility of torture
interviews, and interviews to determine whether an alien has
established that he or she is more likely than not to be tortured in
the prospective country of removal, and in making positive and negative
fear determinations, see 8 CFR 208.30. The immigration judges will
review such determinations as provided in paragraph (g) of this section
and 8 CFR 1003.42.
* * * * *
(g) * * *
(1) * * *
(ii) If the alien is determined to be an alien described as
ineligible for asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4) and
is determined to lack a reasonable possibility of persecution or
torture under 8 CFR 208.30(e)(5)(iii), the immigration judge shall
first review de novo the determination that the alien is described as
ineligible for asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4). If
the immigration judge finds that the alien is not described as
ineligible for asylum in 8 CFR 208.13(c)(4) or 8 CFR 1208.13(c)(4),
then, except as provided in 8 CFR 208.30(e)(iv), the immigration judge
shall vacate the order of the asylum officer, and DHS may commence
asylum-and-withholding-only proceedings under 8 CFR 1208.2(c)(1). If
the immigration judge concurs with the determination that the alien is
an alien described as ineligible for asylum in 8 CFR 208.13(c)(4) or 8
CFR 1208.13(c)(4), the immigration judge will then review the asylum
officer's negative decision regarding reasonable possibility made under
8 CFR 208.30(e)(5) and regarding 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, consistent with paragraph (g)(2) of
this section, except that the immigration judge will review the fear of
persecution or torture findings under the reasonable possibility
standard, and the determination that the alien has not established that
he or she is more likely than not to be tortured in the prospective
country of removal under the more likely than not standard, instead of
the credible fear of persecution standard described in paragraph
(g)(2).
(2) * * *
(i) The asylum officer's negative decision regarding a credible
fear of persecution, reasonable possibility of persecution, reasonable
possibility of torture, and whether the alien has established that he
or she is more likely than not to be tortured in the prospective
country of removal shall be subject to review by an immigration judge
upon the applicant's request, in accordance with section
235(b)(1)(B)(iii)(III) of the Act. If the alien refuses to make an
indication, DHS will consider such a response as a decision to decline
review.
* * * * *
(iv) * * *
(A) If the immigration judge concurs with the determination of the
asylum officer that the alien has not established a credible fear of
persecution, reasonable possibility of persecution, reasonable
possibility of torture, or that he or she is more likely than not to be
tortured in the prospective country of removal, except as provided in
Sec. 208.30(e)(5)(iii) and (iv), the case shall be returned to DHS for
removal of the alien. The immigration judge's decision is final and may
not be appealed.
(B) If the immigration judge finds that the alien, other than an
alien stowaway, establishes a credible fear of persecution, reasonable
possibility of persecution, reasonable possibility of torture, or that
he or she is more likely than not to be tortured in the prospective
country of removal, the immigration judge shall, except as provided in
Sec. 208.30(e)(5)(iii) and (iv), vacate the Notice and Order of
Expedited Removal and DHS may commence asylum-and-withholding-only
proceedings under 8 CFR 1208.2(c)(1), during which time the alien may
file an application for asylum and for withholding of removal in
accordance with 8 CFR 1208.4(b)(3)(i). Such application shall be
considered de novo in all respects by an immigration judge regardless
of any determination made under this paragraph.
* * * * *
PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
13. The authority citation for part 1235 continues to read as fol1ows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law
110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458);
Public Law 115-218.
0
14. Amend Sec. 1235.6 by revising paragraph (a)(2)(i) to read as
follows:
Sec. 1235.6 Referral to immigration judge.
(a) * * *
(2) * * *
(i) If an asylum officer determines that an alien does not have a
credible fear of persecution, reasonable possibility of persecution,
reasonable possibility of torture, or has not established that he or
she is more likely than not to be tortured in the prospective country
of removal, and the alien requests a review of that determination by an
immigration judge; or
* * * * *
Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel.
James R. McHenry III,
Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2020-28436 Filed 12-22-20; 8:45 am]
BILLING CODE 9111-97-P; 4410-30-P
