Security Bars and Processing; Delay of Effective Date
| Published date | 28 December 2021 |
| Record Number | 2021-28016 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 86 Issue 246 (Tuesday, December 28, 2021)
[Federal Register Volume 86, Number 246 (Tuesday, December 28, 2021)]
[Rules and Regulations]
[Pages 73615-73618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28016]
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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. 246 / Tuesday, December 28, 2021 /
Rules and Regulations
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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. 5283-2021]
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, but, as of January 21, 2021, the Departments delayed
the rule's effective date for 60 days to March 22, 2021. The
Departments subsequently further extended and delayed the rule's
effective date to December 31, 2021. In this rule, the Departments are
further extending and delaying the effective date of the Security Bars
rule until December 31, 2022. The Departments are soliciting comments
both on the extension until December 31, 2022, and whether the
effective date of the Security Bars rule should be extended beyond that
date.
DATES: Effective date: As of December 28, 2021, the effective date of
the final rule published December 23, 2020, at 85 FR 84160, which was
delayed January 25, 2021, at 86 FR 6847, and March 22, 2021, at 86 FR
15069, is further delayed until December 31, 2022.
Submission of public comments: Comments must be submitted on or
before February 28, 2022.
ADDRESSES: You may submit comments on this rule, identified by DHS
Docket No. USCIS 2020-0013, through the Federal eRulemaking Portal:
http://www.regulations.gov. Follow the website instructions for
submitting comments. Comments submitted in a manner other than the one
listed above, including emails or letters sent to the Departments'
officials, will not be considered comments on the rule and may not
receive a response from the Departments. Please note that the
Departments cannot accept any comments that are hand-delivered or
couriered. In addition, the Departments cannot accept comments
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. The Departments are not accepting mailed comments
at this time. If you cannot submit your comment by using http://www.regulations.gov, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 (not a toll-free call) for alternate
instructions.
FOR FURTHER INFORMATION CONTACT:
For USCIS: Ren[aacute] Cutlip-Mason, Chief, Division of
Humanitarian Affairs, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 5900 Capital
Gateway Drive, Camp Springs, MD 20588-0009; telephone (240) 721-3000
(not a toll-free call).
For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy,
Executive Office for Immigration Review, 5107 Leesburg Pike, Falls
Church, VA 22041; telephone (703) 305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to submit comments on this action to
further extend and delay the effective date of 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 course of action. Comments must be submitted
in English, or an English translation must be provided. Comments
submitted in a manner other than those listed above, including emails
or letters sent to the Departments' officials, will not be considered
comments on the rule and may not receive a response from the
Departments.
Instructions: If you submit a comment, you must include the agency
name and the DHS Docket No. USCIS 2020-0013 for this rulemaking. All
submissions will be posted, without change, to the Federal eRulemaking
Portal at http://www.regulations.gov, and will include any personal
information you provide. Therefore, submitting this information makes
it public. You may wish to consider limiting the amount of personal
information that you provide in any voluntary public comment submission
you make to the Departments. The Departments may withhold information
provided in comments from public viewing that they determine may impact
the privacy of an individual or is offensive. For additional
information, please read the Privacy and Security Notice available at
http://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to http://www.regulations.gov, referencing DHS
Docket No. USCIS 2020-0013. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Background and Basis for Delay of Effective Date
A. Background
On December 23, 2020, the Departments published the Security Bars
rule to amend existing regulations to clarify that in certain
circumstances
[[Page 73616]]
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 noncitizen ineligible to be granted asylum in the
United States under section 208 of the Immigration and Nationality Act
(``INA'' or ``the Act''), 8 U.S.C. 1158, or the protection of
withholding of removal under the Act or subsequent regulations (because
of the threat of torture). Security Bars and Processing, 85 FR 84160
(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 had been
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), available at 86 FR 7424 (Jan. 28, 2021). As of January
21, 2021, the Departments delayed the effective date of the Security
Bars rule to March 22, 2021, and then further delayed the effective
date of the Security Bars rule to December 31, 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); Security Bars and
Processing; Delay of Effective Date, 86 FR 15069 (Mar. 22, 2021).
B. Reason for Delay
As stated in the Security Bars and Processing; Delay of Effective
Date interim final rule (``March Security Bars Delay IFR'') published
on March 22, 2021, the Departments had good cause to delay the Security
Bars rule's effective date further without advance notice and comment
because implementation of the Security Bars rule was infeasible due to
a preliminary injunction against a related rule. See 86 FR at 15070.
Specifically, the Security Bars rule relies on revisions to the
Departments' regulations previously made on December 11, 2020, by a
separate joint rule, Procedures for Asylum and Withholding of Removal;
Credible Fear and Reasonable Fear Review (``Global Asylum final
rule'').\1\ The Global Asylum final rule was scheduled to become
effective before the Security Bars rule. However, on January 8, 2021,
14 days prior to the effective date of the Security Bars rule, in the
case of Pangea Legal Services v. Department of Homeland Security
(``Pangea II''), 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. Thus, implementation of
the Security Bars rule continues to be infeasible.
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\1\ See 85 FR 80274 (Dec. 11, 2020).
\2\ Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 512 F.
Supp. 3d 966, 977 (N.D. Cal. 2021). By issuing this rule to further
extend and delay the effective date of the Security Bars rule, the
Departments are not indicating a position on the outcome thus far in
Pangea II.
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Specifically, the Security Bars rule relies upon the regulatory
framework that was established in the Global Asylum final rule in
applying bars to asylum eligibility and withholding of removal during
credible fear screenings.\3\ On July 9, 2020, the Departments published
a Notice of Proposed Rulemaking for the Security Bars rule (``Security
Bars NPRM''), which proposed regulatory text instructing adjudicators
to apply the security bars to asylum eligibility and withholding of
removal during credible fear screenings.\4\ This proposal would have
modified the then-existing regulatory framework instructing that
evidence that the individual is, or may be, subject to a bar to asylum
eligibility or withholding of removal, including the ``danger to the
security of the United States'' bars underlying the Security Bars rule,
does not have an impact on a credible fear determination.\5\ The
Security Bars NPRM justified this modification as necessary to allow
DHS to quickly remove individuals covered by the security bars to
asylum eligibility and withholding of removal, rather than sending
potentially barred individuals to full removal proceedings pursuant to
section 240 of the INA, 8 U.S.C. 1229a (``section 240 removal
proceedings''), for consideration of further relief or protection from
removal before an immigration judge, which can take months or even
years.\6\ The Security Bars NPRM further explained that applying the
security bars during credible fear screenings was necessary to reduce
health and safety dangers to both the public at large and DHS
officials.\7\
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\3\ 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'').
\4\ Security Bars and Processing, 85 FR 41201, 41216-18 (July 9,
2020).
\5\ See id. at 41207.
\6\ Id. at 41210-12.
\7\ Id. at 41210.
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On December 11, 2020, while the Departments were reviewing the
comments submitted in response to the Security Bars NPRM, the Global
Asylum final rule was published.\8\ The Global Asylum final rule
changed the general practice described above to apply all bars to
asylum eligibility and withholding of removal during credible fear
screenings.\9\ Most relevant, the Global Asylum final rule changed the
then-existing regulatory framework described above, in which evidence
of a bar to asylum eligibility or withholding of removal does not have
any impact on a credible fear determination (even though the bars would
be part of the ultimate adjudication of asylum eligibility or
withholding of removal before the Executive Office of Immigration
Review), to a framework that instead required asylum officers to apply
all of the bars to asylum eligibility or withholding of removal during
credible fear screenings.\10\
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\8\ 85 FR 80274 (Dec. 11, 2020).
\9\ Id. at 80391.
\10\ Id.
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On December 23, 2020, the Security Bars rule was published. In this
final rule, the Departments revised the text from the Security Bars
NPRM to explicitly rely on the intervening 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 established by the Global Asylum final rule, such as
applying bars to asylum eligibility and withholding of removal during
credible fear screenings.\12\ The Security Bars rule assumed that the
Global Asylum final rule would be in effect, and, therefore, the
Security Bars rule did not make additional changes to the credible fear
framework.\13\
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\11\ 85 FR at 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 85 FR 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 bars to
eligibility for asylum and withholding of removal.'').
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As a result of the interplay between the two rules, implementation
of the Security Bars rule would risk violating the injunction against
the application, implementation, or enforcement of the Global Asylum
final rule and any related policies or procedures. Effective
implementation of the Security Bars rule relies on the application of
the asylum and withholding of removal bars to eligibility at the
credible fear screening stage, as established by the Global Asylum
final rule.\14\ Accordingly, implementing the Security Bars rule--and
effectively reinserting or relying upon regulatory provisions that the
Pangea II court has enjoined--may potentially violate the court's
injunction. In other words, the court's injunction in Pangea II makes
it impermissible under the current regulatory framework to apply the
bars to asylum eligibility and withholding of removal outlined in the
Security Bars rule to noncitizens in the credible fear screening
process. Given these circumstances, the Departments believe that the
Security Bars rule, which could not be implemented as designed, would
not necessarily provide the framework for achieving its intended goals.
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\14\ As the Departments explained in the Security Bars rule, the
intervening Global Asylum final rule made changes to the credible
fear screening framework to provide that noncitizens receiving
positive credible fear determinations be placed in asylum-and-
withholding only proceedings, rather than section 240 removal
proceedings. See 85 FR at 84188. The Security Bars rule relied upon
this change made in the Global Asylum final rule to provide that
noncitizens who receive positive credible fear determinations under
the Security Bars rule will be placed in such asylum-and-withholding
only proceedings rather than section 240 removal proceedings, unless
they are removed to third countries. See id. The Security Bars rule
also assumes that the Departments are using the reasonable
possibility of persecution or torture standards for withholding of
removal claims in the credible fear screening context, which is also
a change that was made in the Global Asylum final rule. See id. at
84188, 84191.
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Accordingly, the Departments are further extending and delaying the
effective date of the Security Bars rule until December 31, 2022,
because of the aforementioned litigation. If the injunction against
implementation of the Global Asylum final rule is lifted before
December 31, 2022, the Departments can revise the effective date of the
Security Bars rule as needed to account for this change. Similarly, if
the injunction remains in effect on that date, 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.
C. Future Rulemaking To Modify or Rescind Security Bars Rule
The Departments are reviewing and reconsidering the Security Bars
rule in light of the Administration's policies of ensuring the safe and
orderly reception and processing of asylum seekers consistent with
public health and safety, strengthening the asylum system, and removing
barriers that impede access to immigration benefits, with the
additional context of the complex relationship between the Global
Asylum final rule and the Security Bars rule, and the court's
injunction in Pangea II.\15\ The Departments are reevaluating whether
the Security Bars rule provides the most appropriate and effective
framework for achieving its goals of mitigating the spread of
communicable diseases, including COVID-19, among certain noncitizens in
the credible fear screening process, as well as DHS personnel and the
public. The Departments plan to publish a separate NPRM to solicit
public comments on whether to modify or rescind the Security Bars
rule.\16\
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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).
\16\ See Executive Office of the President, Office of Management
and Budget, Office of Information and Regulatory Affairs, Spring
2021 Unified Agenda of Regulatory and Deregulatory Actions, Bars to
Asylum Eligibility and Procedures, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=1615-AC69 (last visited Dec. 14,
2021).
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In the March Security Bars Delay IFR, the Departments explained
that they were considering amending or rescinding the Security Bars
rule and noted that they may extend the delay in its effective date
beyond December 31, 2021, if the injunction remained in effect at the
time. 86 FR at 15071. The Departments sought public comments on whether
the Security Bars rule should be revised or revoked and information on
alternative approaches that may achieve the best public health outcome
consistent with the Administration's immigration policy goals.\17\ The
Departments received 66 comments in response to the March Security Bars
Delay IFR, which the Departments would address in any separate future
rulemaking to modify or rescind the Security Bars rule.
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\17\ See 86 FR at 15069, 15071.
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The Departments recognize that the COVID-19 public health emergency
is highly dynamic and continues to pose health and safety risks for
noncitizens held in congregate settings, particularly at holding and
detention facilities, agency personnel, and the public.\18\ As the
COVID-19 public health emergency has continued to evolve, the
Departments continue to reconsider and reevaluate how best to mitigate
the spread of COVID-19 and which actions are most appropriate in
accordance with their legal authorities.
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\18\ See Public Health Reassessment and Order Suspending the
Right to Introduce Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists, 86 FR 42828, 42830,
42833, 42835-36 (Aug. 5, 2021).
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III. Request for Comment on Further Delay of the Effective Date of the
Security Bars Rule
The Departments continue to welcome data, views, and information
regarding the effective date of the Security Bars rule. The Departments
also are soliciting comments on whether the effective date should be
extended beyond December 31, 2022, if the Pangea II injunction is still
in effect or if other intervening events occur.
IV. Regulatory Requirements
A. Administrative Procedure Act
Under the Administrative Procedure Act (``APA''), agencies are not
required to engage in pre-promulgation notice-and-comment under 5
U.S.C. 553(b) and (c) when an agency ``for good cause finds . . . that
notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(B). As stated above,
the Departments have determined that the good cause exception applies
to this rule because implementation of the Security Bars rule has not
been--and continues to not be--feasible due to a preliminary injunction
against a related rule. As explained above, the Security Bars rule's
reliance upon--and interplay with--the Global Asylum final rule means
that implementation of the Security Bars rule would risk violating the
Pangea II injunction. The preliminary injunction remains in place. It
is therefore impractical and unnecessary for the Departments to provide
notice and an opportunity to comment, because any comments received
cannot and will not affect the injunction underlying the need for
delay. See EME Homer City Generation, L.P. v. E.P.A., 795 F.3d 118,
134-35
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(D.C. Cir. 2015) (explaining that the good cause exception applied
because ``commentators could not have said anything during a notice and
comment period that would have changed'' the agency's response to a
judicial decision). The Departments notified the public in March that
``if the injunction remains in effect on December 31, [2021,] the
Departments may delay the effective date of the Security Bars rule
further.'' 86 FR at 15071.\19\
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\19\ In response to the March Security Bars Delay IFR, the
Departments received one comment objecting to a further delay. The
commenter asserted that implementation was needed to mitigate the
risk of the potential spread of deadly communicable diseases by
noncitizens from countries where the disease was prevalent. As
noted, however, agencies have been enjoined from applying bars to
asylum eligibility and withholding of removal when making a credible
fear determination.
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B. Executive Order 12866 and Executive Order 13563
Executive Orders 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. Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Pursuant to Executive Order 12866, the Office of Information and
Regulatory Affairs of the Office of Management and Budget determined
that this rule is ``significant'' under Executive Order 12866 and has
reviewed this regulation.
C. 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 to further delay 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 Security Bars rule,
nor this rule to delay 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.
D. 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.
E. 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
based enterprises in domestic and export markets. The Departments have
complied with the CRA's reporting requirements and have sent this rule
to Congress and to the Comptroller General as required by 5 U.S.C.
801(a)(1).
F. 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 preparation of a
federalism summary impact statement.
G. 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.
H. 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.
I. 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, Executive Order 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: December 18, 2021.
Merrick B. Garland,
Attorney General, Department of Justice.
[FR Doc. 2021-28016 Filed 12-27-21; 8:45 am]
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