Security Bars and Processing; Delay of Effective Date
| Published date | 22 March 2021 |
| Citation | 86 FR 15069 |
| Record Number | 2021-05931 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 86 Issue 53 (Monday, March 22, 2021)
[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Rules and Regulations]
[Pages 15069-15072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05931]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules
and Regulations
[[Page 15069]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 208
[Docket No: USCIS 2020-0013]
RIN 1615-AC57
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1208
[A.G. Order No. 5004-2021]
RIN 1125-AB08
Security Bars and Processing; Delay of Effective Date
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security; Executive Office for Immigration Review, Department
of Justice.
ACTION: Interim final rule with request for comments.
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SUMMARY: On December 23, 2020, the Department of Homeland Security
(``DHS'') and the Department of Justice (``DOJ'') (collectively, ``the
Departments'') published a final rule (``Security Bars rule'') to
clarify that the ``danger to the security of the United States''
standard in the statutory bar to eligibility for asylum and withholding
of removal encompasses certain emergency public health concerns and to
make certain other changes; that rule was scheduled to take effect on
January 22, 2021. As of January 21, 2021, the Departments delayed the
rule's effective date for 60 days to March 22, 2021. In this rule, the
Departments are further extending and delaying the rule's effective
date to December 31, 2021. In addition, in light of evolving
information regarding the best approaches to mitigating the spread of
communicable disease, the Departments are also considering action to
rescind or revise the Security Bars rule. The Departments are seeking
public comment on whether that rule represents an effective way to
protect public health while reducing barriers for noncitizens seeking
forms of protection in the United States, or whether the Security Bars
rule should be revised or revoked.
DATES: As of March 22, 2021, the effective date of the final rule
published at 85 FR 84160 (Dec. 23, 2020), which was delayed by the rule
published at 86 FR 6847 (Jan. 25, 2021), is further delayed by this
interim final rule until December 31, 2021.
Submission of public comments: Comments must be submitted on or
before April 21, 2021.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2020-0013, by any one of the following methods:
Federal eRulemaking Portal (strongly preferred): http://www.regulations.gov. Follow the website instructions for submitting
comments. If you submit comments using the eRulemaking portal, please
do not submit a duplicate written comment via postal mail.
Mail: If you wish to submit a paper comment in lieu of an
electronic submission, please direct the mail/shipment to: Lauren Alder
Reid, Assistant Director, Office of Policy, Executive Office for
Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA
22041. To ensure proper handling, please reference DHS Docket No.
USCIS-2020-0013 in your correspondence. Mail must be postmarked by the
comment submission deadline. Please note that the Departments cannot
accept any comments that are hand-delivered or couriered. In addition,
the Departments cannot accept mailed comments contained on any form of
digital media storage devices, such as CDs/DVDs and USB drives. If you
submit a written comment via postal mail, please do not submit a
duplicate comment using the eRulemaking portal.
Comments submitted in a manner other than those listed above,
including emails or letters sent to DHS or U.S. Citizenship and
Immigration Services officials, or DOJ or Executive Office for
Immigration Review officials, will not be considered comments on this
final rule and may not receive a response from the Departments.
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 240-721-3000 (not a toll-free call).
For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
Executive Office for Immigration Review, telephone (703) 305-0289 (not
a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit comments on any aspect of
this action, as well as a potential future rulemaking rescinding or
amending the Security Bars rule, by submitting relevant written data,
views, or arguments. To provide the most assistance to the Departments,
comments should reference a specific portion of the rule; explain the
reason for any recommendation; and include data, information, or
authority that supports the recommended change or rescission.
All comments submitted should include the agency name (U.S.
Citizenship and Immigration Services) and Docket No. USCIS 2020-0013.
Please note that all comments received are considered part of the
public record and made available for public inspection at
www.regulations.gov. Such information includes personally identifiable
information (such as a person's name, address, or any other data that
might personally identify that individual) that the commenter
voluntarily submits. You may wish to consider limiting the amount of
personal information that you provide in any voluntary public comment
submission that you make to DHS. DHS may withhold information provided
in comments from public viewing if it determines that it may impact the
privacy of an individual or is offensive. For additional information,
please read the Privacy and Security Notice, which is available at
http://www.regulations.gov.
II. Background and Basis for Delay
On December 23, 2020, the Departments published the Security Bars
rule to amend existing regulations
[[Page 15070]]
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 or the protection of withholding
of removal under that Act or subsequent regulations (because of the
threat of torture). See Security Bars and Processing, 85 FR 84160 et
seq. (Dec. 23, 2020). The rule was scheduled to take effect on January
22, 2021.
On January 20, 2021, the White House Chief of Staff issued a
memorandum asking agencies to consider delaying, consistent with
applicable law, the effective dates of any rules that have published
and not yet gone into effect, for the purpose of allowing the
President's appointees and designees to review questions of fact, law,
and policy raised by those regulations. See Memorandum for the Heads of
Executive Departments and Agencies from Ronald A. Klain, Assistant to
the President and Chief of Staff, Re: Regulatory Freeze Pending Review
(Jan. 20, 2021). As of January 21, 2021, the Departments delayed the
effective date of the Security Bars rule to March 22, 2021, consistent
with that memorandum and a preliminary injunction in place with respect
to a related rule, as discussed below. See Security Bars and
Processing; Delay of Effective Date, 86 FR 6847 (Jan. 25, 2021).
The Departments have good cause to delay this rule's effective date
further without advance notice and comment because implementation of
this rule is not feasible due to a preliminary injunction against a
related rule. The provisions of the Security Bars rule are premised
upon, and reliant upon, the revisions to the Departments' asylum rules
previously made by a separate joint rule that became effective before
the Security Bars rule was scheduled to take effect. The Departments
issued the ``Global Asylum'' rule, entitled Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear Review, on
December 11, 2020.\1\ On January 8, 2021, in the case of Pangea Legal
Services v. Department of Homeland Security, a district court
preliminarily enjoined the Departments ``from implementing, enforcing,
or applying the [Global Asylum final] rule . . . or any related
policies or procedures.'' \2\ The preliminary injunction remains in
place.
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\1\ See 85 FR 80274 (Dec. 11, 2020).
\2\ Nos. 20-09253-JD & 20-09258-JD, 2021 WL 75756, at *7 (N.D.
Cal. Jan. 8, 2021). The U.S. District Court for the Northern
District of California held that the plaintiffs, who had brought two
related actions, had shown a likelihood that Chad F. Wolf, who
approved the Global Asylum final rule in his capacity as Acting
Secretary of Homeland Security, did not have valid authority to act
in that capacity. See id. at *6. The District Court did not reach
any other ground for issuing the injunction. See id. Following the
court's ruling, Acting Secretary of Homeland Security Peter T.
Gaynor and Mr. Wolf took steps to ratify the Global Asylum final
rule. See DHS Delegation No. 23028, Delegation to the Under
Secretary for Strategy, Policy, and Plans to Act on Final Rules,
Regulations, and Other Matters (Jan. 12, 2021); Chad F. Wolf,
Ratification (Jan. 14, 2021). By issuing this rule delaying the
effective date of the Security Bars rule, the Departments are not
indicating their position on Mr. Gaynor or Mr. Wolf's actions or
authority, or on the outcome thus far in Pangea.
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As the Departments noted in their previous rule delaying the
January 22, 2021, effective date for the Security Bars rule, because of
the preliminary injunction in effect against implementation of the
Global Asylum final rule, implementing the Security Bars rule is not
viable at this time, as the two rules are intertwined.\3\ Specifically,
the Security Bars rule relies upon the regulatory framework for
applying bars to asylum during credible fear processing that was
established in the Global Asylum final rule.\4\ The Notice of Proposed
Rulemaking (NPRM) for the Security Bars rule, which was published on
July 9, 2020, included proposed regulatory text instructing
adjudicators to apply the bar during credible and reasonable fear
screenings.\5\ This proposal would have created an exception to the
then-existing rule that the statutory bars to asylum and withholding of
removal, including the ``danger to the security of the United States''
bars underlying the Security Bars rule, were not to be considered
during the credible and reasonable fear screening processes.\6\ The
proposed rule justified this exception as necessary to allow DHS to
quickly remove individuals covered by the bars, rather than sending
them to full removal proceedings for adjudication of their asylum and
withholding of removal claims, which can take months or even years.\7\
The NPRM explained that applying the bars during credible fear and
reasonable fear screenings was necessary to reduce health and safety
dangers to both the public at large and DHS officials.\8\ Indeed,
applying these bars only after the affected individuals have been
present in the United States for an extended period of time would do
little, if anything, to prevent the spread of such diseases,
significantly undercutting the justification for the Security Bars
rule.
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\3\ See 86 FR at 6847.
\4\ See, e.g., 85 FR at 84176 (``As noted, the [Security Bars]
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.''); id. at 84189 (describing changes made in the Security
Bars rule ``to certain regulatory provisions not addressed in the
proposed rule as necessitated by the intervening promulgation of the
[Global Asylum final] Rule'').
\5\ Security Bars and Processing, 85 FR 41201, 41216-2012;17,
41218 (July 9, 2020).
\6\ See id. at 41207.
\7\ Id. at 41210-12.
\8\ Id. at 41210.
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While DHS and DOJ were reviewing the comments submitted in response
to the Security Bars NPRM, the Global Asylum final rule was published
on December 11, 2020.\9\ The Global Asylum final rule changed the
general practice described above to apply all statutory bars to asylum
and withholding of removal during credible and reasonable fear
screenings.\10\ The Security Bars final rule, which was published on
December 23, 2020, therefore revised the proposed text explicitly to
rely on the changes made by the Global Asylum final rule.\11\ As a
result, the regulatory text of significant portions of the Security
Bars rule relies upon and repeats broader regulatory text that was
established by the Global Asylum final rule, applying all bars to
asylum and withholding of removal during credible and reasonable fear
screenings.\12\ The Security Bars final rule assumed that the Global
Asylum rule would be in effect and therefore the Security Bars final
rule did not change the credible fear and reasonable fear
framework.\13\ As a result, the overlap between the two rules now has
created a situation in which the Departments would risk violating the
injunction against the Global Asylum final rule if they were to
implement the identical portions of the Security Bars final rule, and
the Departments could not implement the narrower change to the credible
fear and reasonable fear framework proposed in
[[Page 15071]]
the Security Bars NPRM without additional rulemaking.
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\9\ 85 FR 80274 (Dec. 11, 2020).
\10\ Id. at 80391.
\11\ 85 FR 84160, 84174-77.
\12\ See, e.g., id. at 84194-98 (revising 8 CFR 208.30, 235.6,
1208.30, and 1235.6, among other provisions) accord 85 FR at 80390-
80401 (same).
\13\ See id. at 84175 (``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.'').
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Moreover, the framework established by the Global Asylum final rule
is critical to the justification for the Security Bars rule, because it
would permit the Departments to remove individuals who are subject to
the bars expeditiously. On the other hand, if the Departments were to
implement only the remaining portions of the Security Bars rule that do
not overlap with the enjoined Global Asylum final rule, the result
would be the very situation that the Security Bars rule was created to
remedy--namely, that possibly infectious individuals would be detained
or released inside the United States, potentially for a lengthy period,
while awaiting their removal hearings.\14\ Such an outcome would
frustrate the purpose of the Security Bars rule.
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\14\ Specifically, the Security Bars rule's regulatory
provisions at Sec. Sec. 208.13(c)(10), 208.16(d)(2),
1208.13(c)(10), and 1208.16(d)(2) clarify that the ``danger to the
security of the United States'' statutory bars to eligibility for
asylum and withholding of removal may encompass emergency public
health concerns, and do not overlap with the enjoined Global Asylum
final rule. By contrast, the provisions at Sec. 208.30(e)(5)
restate and amend provisions newly adopted in the Global Asylum
final rule that have been enjoined. These latter provisions would
require an asylum officer to enter a negative credible fear of
persecution determination with respect to an arriving alien's
eligibility for asylum, allowing most aliens to whom the danger to
security bar applies to be quickly removed under an order of
expedited removal. While the Departments could implement the danger
to security bars to asylum and withholding of removal determinations
without running afoul of the injunction of the Global Asylum final
rule, they could only do so after the individual has moved past the
credible fear stage of the process and has been placed into removal
proceedings before an immigration judge under section 240 of the
Act. The individual would need to be either detained in a congregate
setting or released inside the United States while awaiting his or
her removal proceeding. This is the very situation that the Security
Bars rule intended to avoid.
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Additionally, to implement the full Security Bars rule--and
effectively reinsert or rely upon regulatory provisions that the Pangea
court has enjoined--might run afoul of the court's injunction. Because
it is impracticable and unnecessary to engage in notice and comment
procedures in the limited time available while the Departments are
subject to the court's injunction, the Departments are publishing this
interim final rule to extend and delay the Security Bars rule's
effective date until December 31, 2021. Additionally, in light of the
complex relationship between the Global Asylum final rule and the
Security Bars rule and the implications of the Pangea litigation to the
Security Bars rule, the Departments need additional time to analyze the
consequences of the overlapping and embedded text and consider whether
policy changes are advisable and viable in light of the litigation.
If the injunction against implementation of the Global Asylum rule
is lifted before December 31, the Departments will revise the effective
date of the Security Bars rule as soon as possible thereafter.
Similarly, if the injunction remains in effect on December 31, the
Departments may delay the effective date of the Security Bars rule
further. The Departments have chosen this time-limited delay, rather
than an indefinite delay, due to the preliminary nature of the
injunction.
III. Request for Comment on Amending or Rescinding the Security Bars
Rule
The Departments are further considering amending or rescinding the
Security Bars rule. In particular, the Departments are considering
whether to publish a new rule that would remove or revise the
regulatory changes promulgated in the Security Bars rule. In connection
with that consideration, the Departments welcome data, views, and
information on the best approaches for mitigating the spread of
communicable disease in the operational context implicated by the
Security Bars rule. The Departments are interested in information the
public may have on more effective alternative approaches than that
taken by the Security Bars rule, particularly in light of new or more
comprehensive data. The Departments are also reviewing the Security
Bars rule in light of the Administration's policy of expanding pathways
for noncitizens seeking forms of protection in the United States and
removing barriers that impede access to immigration benefits, and are
seeking comment on alternative approaches that may achieve the best
public health outcome while remaining more consistent with that policy
goal.\15\ Finally, the Departments welcome comment on the portions of
the Global Asylum final rule that establish the framework for applying
bars to asylum during credible fear processing, insofar as such comment
is relevant to potential removal of or revisions to the Security Bars
rule.
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\15\ See, e.g., Executive Order 14010 of February 2, 2021,
Creating a Comprehensive Regional Framework to Address the Causes of
Migration, to Manage Migration Throughout North and Central America,
and to Provide Safe and Orderly Processing of Asylum Seekers at the
United States Border, 86 FR 8267 (Feb. 5, 2021); Executive Order
14012 of February 2, 2021, Restoring Faith in Our Legal Immigration
Systems and Strengthening Integration and Inclusion Efforts for New
Americans, 86 FR 8277 (Feb. 5, 2021).
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IV. Regulatory Requirements
A. Executive Order 12866 and Executive Order 13563
Executive Orders (E.O.) 12866 (Regulatory Planning and Review), and
13563 (Improving Regulation and Regulatory Review) direct agencies to
assess the costs, benefits, and transfers of available alternatives,
and if regulation is necessary, to select regulatory approaches that
maximize net benefits, including potential economic, environmental,
public health and safety effects, distributive impacts, and equity.
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Pursuant to E.O. 12866, the Office of Information and
Regulatory Affairs of the Office of Management and Budget determined
that this rule is ``significant'' under E.O. 12866 and has reviewed
this regulation.
B. 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 further delaying the effective date of the Security Bars
rule (85 FR 84160) will not have a significant economic impact on a
substantial number of small entities. Neither the final Security Bars
rule, nor this rule delaying its effective date, 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.
C. 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.
D. Congressional Review Act
This rule is not a major rule as defined by section 804 of the
Congressional Review Act (``CRA''). 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
[[Page 15072]]
based enterprises in domestic and export markets. The Departments have
complied with the CRA's reporting requirements and have sent this final
rule to Congress and to the Comptroller General as required by 5 U.S.C.
801(a)(1).
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 E.O.
13132, the Departments believe that this rule will not have sufficient
federalism implications to warrant the 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 E.O. 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. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This rule does not have ``tribal implications'' because it does not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. Accordingly, E.O. 13175 (Consultation and
Coordination with Indian Tribal Governments), requires no further
agency action or analysis.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Dated: March 17, 2021.
Merrick B. Garland,
Attorney General, Department of Justice.
[FR Doc. 2021-05931 Filed 3-19-21; 8:45 am]
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