Security Bars and Processing

CourtExecutive Office For Immigration Review
Citation85 FR 84160
Published date23 December 2020
Record Number2020-28436
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).
                ---------------------------------------------------------------------------
                 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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 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
                ---------------------------------------------------------------------------
                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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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'').
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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'').
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \47\ Id.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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]]
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \51\ Id.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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.''
                ---------------------------------------------------------------------------
                 \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.''
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                [[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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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:
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \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\
                ---------------------------------------------------------------------------
                 \120\ Security Bars and Processing, 85 FR at 41201.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \132\ Global Asylum Final Rule, 85 FR at 80284.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \136\ Global Asylum NPRM, 85 FR at 36278.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \138\ 85 FR at 80284.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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
                

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