82260 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

1The Departments adopt and incorporate herein 

the background and discussion of the purposes of 

the rule as published in the preamble to the IFR at 

84 FR at 33830–35. Section I of the preamble of this 

rule also contains a summary of the IFR preamble 

discussion. 

2Current Asylum Cooperative Agreements are 

discussed infra at note 13. 

3The Departments reaffirm the explanation of the 

regulatory changes as published in the preamble to 

the IFR. 84 FR at 33835–40. A summary of the 

discussion in the IFR is further contained in Section 

I of this preamble. 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 208 

RIN 1615–AC44 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Part 1208 

[EOIR Docket No. 19–0111; Dir. Order 06– 

2021] 

RIN 1125–AA91 

Asylum Eligibility and Procedural 

Modifications 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice; U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security. 

ACTION: Final rule. 

SUMMARY: On July 16, 2019, the 

Department of Justice and the 

Department of Homeland Security 

(‘‘DOJ,’’ ‘‘DHS,’’ or, collectively, ‘‘the 

Departments’’) published an interim 

final rule (‘‘IFR’’) governing asylum 

claims in the context of aliens who enter 

or attempt to enter the United States 

across the southern land border between 

the United States and Mexico 

(‘‘southern land border’’) after failing to 

apply for protection from persecution or 

torture while in a third country through 

which they transited en route to the 

United States. This final rule responds 

to comments received on the IFR and 

makes minor changes to regulations 

implemented or affected by the IFR for 

clarity and correction of typographical 

errors. 

DATES: This rule is effective on January 

19, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Alder Reid, Assistant Director, 

Office of Policy, Executive Office for 

Immigration Review, 5107 Leesburg 

Pike, Suite 2600, Falls Church, VA 

22041, telephone (703) 305–0289 (not a 

toll-free call). 

SUPPLEMENTARY INFORMATION: 

I. Purpose and Summary of the Interim 

Final Rule 

On July 16, 2019, the Departments 

published an IFR governing asylum 

claims in the context of aliens who enter 

or attempt to enter the United States 

across the southern land border after 

failing to apply for protection from 

persecution or torture while in any one 

of the third countries through which 

they transited en route to the United 

States. Asylum Eligibility and 

Procedural Modifications, 84 FR 33829 

(July 16, 2019). 

A. Purpose of the Interim Final Rule 1

The IFR sought to address the large 

number of meritless asylum claims that 

aliens are filing with the Departments. 

See 84 FR at 33830–31. Such claims 

place an extraordinary strain on the 

Nation’s immigration system, 

undermine many of the humanitarian 

purposes of asylum, exacerbate the 

humanitarian crisis of human 

smuggling, and affect the United States’ 

ongoing diplomatic negotiations with 

foreign countries. 

The IFR sought to mitigate the strain 

on the country’s immigration system by 

more efficiently identifying aliens who 

are misusing the asylum system as a tool 

to enter and remain in the United States 

as opposed to those legitimately seeking 

urgent protection from persecution or 

torture. Aliens who transited through 

another country where protection was 

available, and yet did not seek 

protection, may fall within that 

category. 

The IFR also furthered the 

humanitarian purposes of asylum by 

prioritizing individuals who are unable 

to obtain protection from persecution 

elsewhere and individuals who are 

victims of a ‘‘severe form of trafficking 

in persons’’ as defined by 8 CFR 214.11, 

many of whom do not volitionally 

transit through a third country to reach 

the United States. By deterring meritless 

asylum claims and barring from asylum 

those individuals whose primary 

purpose is to make the journey to the 

United States rather than to seek 

protection, or those who could have 

obtained protection in a another 

country, the Departments sought to 

ensure that those refugees who have no 

alternative to U.S.-based asylum relief 

or have been subjected to an extreme 

form of human trafficking are able to 

obtain relief more quickly. 84 FR at 

33831. 

Additionally, the Departments sought 

to curtail the humanitarian crisis 

created by human smugglers bringing 

men, women, and children across the 

southern land border. By reducing the 

incentive for aliens without an urgent or 

genuine need for asylum to cross the 

border—in the hope of a lengthy asylum 

process that will enable them to remain 

in the United States for years, typically 

free from detention and with work 

authorization, despite their statutory 

ineligibility for relief—the rule aimed to 

reduce human smuggling and its tragic 

effects. Id. 

Finally, the Departments published 

the IFR to better position the United 

States in its negotiations with foreign 

countries on migration issues. The 

United States is engaged in ongoing 

diplomatic negotiations with Mexico 

and various Central American countries 

regarding migration issues in general, 

the control of the flow of aliens into the 

United States (such as through 

continued implementation of the 

Migrant Protection Protocols (‘‘MPP’’)), 

and the urgent need to address the 

humanitarian and security crisis along 

the southern land border.2 Those 

ongoing discussions relate to 

negotiations with foreign countries with 

a goal of forging bilateral and 

multilateral agreements in which other 

countries will join the United States 

distributing the mass migration burden 

among cooperative countries. The 

purpose of the international agreements 

is to allocate responsibility between the 

United States and third countries 

whereby one country or the other will 

assume responsibility for adjudicating 

the claims of aliens who fear removal to 

their home countries. Addressing the 

eligibility for asylum of aliens who enter 

or attempt to enter the United States 

after failing to seek protection in at least 

one third country through which they 

transited en route to the United States 

will better position the United States in 

the full range of these negotiations. 

B. Legal Authority for the Interim Final 

Rule 

The Departments issued the IFR 

pursuant to section 208(b)(2)(C) of the 

Immigration and Nationality Act (‘‘INA’’ 

or ‘‘the Act’’), 8 U.S.C. 1158(b)(2)(C), 

and sections 103(a)(1), (a)(3), and (g) of 

the Act, 8 U.S.C. 1103(a)(1), (a)(3), and 

(g). See 84 FR at 33831–32. 

C. Summary of Regulatory Changes 

Made by the Interim Final Rule 3

The IFR revised 8 CFR 208.13 and 

208.30 in Chapter I of title 8 of the Code 

of Federal Regulations (‘‘CFR’’) and 

1208.13, and 1208.30 in Chapter V of 

title 8 of the CFR. 

The IFR revised 8 CFR 208.13(c) and 

8 CFR 1208.13(c) to add a new 

mandatory bar to eligibility for asylum 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82261 

4Although the IFR was not published with a 30- 

day delay in its effective date, and although the IFR 

has been and will remain in effect until this final 

rule’s effective date, that fact does not change 

whether this rulemaking complies with 5 U.S.C. 

553, as the same was true of the IFR and final rule 

at issue in Little Sisters. See Religious Exemptions 

and Accommodations for Coverage of Certain 

Preventive Services Under the Affordable Care Act, 

82 FR 47792 (Oct. 13, 2017) (publishing the IFR at 

issue in Little Sisters with an effective date of 

October 6, 2017); Religious Exemptions and 

Accommodations for Coverage of Certain Preventive 

Services Under the Affordable Care Act, 83 FR 

57536 (Nov. 15, 2018) (publishing the final rule at 

issue in Little Sisters with an effective date of 

January 14, 2019). 

5On December 2, 2020, the Departments signed 

a joint final rule [hereinafter ‘‘Intervening Joint 

Final Rule’’] that made various amendments to the 

regulatory text as amended in the IFR previous to 

this rulemaking. Upon publication of the 

Intervening Joint Final Rule, certain amendments 

published in the IFR are no longer necessary. 

for an alien who enters or attempts to 

enter the United States across the 

southern land border after transiting 

through at least one country outside the 

alien’s country of citizenship, 

nationality, or last lawful habitual 

residence en route to the United States. 

8 CFR 208.13(c)(4), 1208.13(c)(4). The 

bar contains exceptions to its 

applicability for three categories of 

aliens: (1) Aliens who demonstrate that 

they applied for protection from 

persecution or torture in at least one of 

the countries through which they 

transited en route to the United States, 

other than their country of citizenship, 

nationality, or last lawful habitual 

residence, and that they received a final 

judgment denying protection in such 

country; (2) aliens who demonstrate that 

they satisfy the definition of ‘‘victim of 

a severe form of trafficking in persons’’ 

provided in 8 CFR 214.11; and (3) aliens 

who have transited en route to the 

United States through only a country or 

countries that, at the time of transit, 

were not parties to the 1951 Convention 

on the Status of Refugees (‘‘Refugee 

Convention’’ or ‘‘1951 Convention’’), the 

1967 Protocol Relating to the Status of 

Refugees (‘‘Refugee Protocol’’ or ‘‘1967 

Protocol’’), or the United Nations 

Convention against Torture and Other 

Cruel, Inhuman or Degrading Treatment 

or Punishment (‘‘CAT’’ or ‘‘Convention 

Against Torture’’). 8 CFR 208.13(c)(4), 

1208.13(c)(4) (proposed). 

The IFR also added the new limit on 

asylum eligibility in the process for 

screening aliens who are subject to 

expedited removal under section 

235(b)(1) of the Act, 8 U.S.C. 1225(b)(1). 

8 CFR 208.30(e) (proposed). Pursuant to 

the IFR, DHS asylum officers were 

required to determine whether an alien 

who has expressed a fear of persecution 

or torture, or who has indicated an 

intention to apply for asylum, was 

ineligible for asylum due to a failure to 

apply for protection in a third country 

through which he or she transited. See 

8 CFR 208.30(e)(2) (proposed). 

Under that process, if the asylum 

officer determined that the alien is 

ineligible for asylum due to the bar at 

8 CFR 208.13(c)(4), the asylum officer 

would nevertheless consider whether 

the alien had a reasonable fear of 

persecution or torture for purposes of 

potential consideration by an 

immigration judge of withholding of 

removal and deferral of removal claims 

under section 241(b)(3) of the Act and 

8 CFR 208.16 and 208.17. See 8 CFR 

208.30(e)(3) (proposed). If the asylum 

officer had determined that an alien 

subject to the bar had established a 

reasonable fear of persecution or torture, 

DHS would have then referred the alien 

to an immigration judge for more 

comprehensive removal proceedings 

under section 240 of the Act, 8 U.S.C. 

1229a. 8 CFR 208.30(e)(5)(i) (proposed). 

However, if the alien had failed to 

establish a reasonable fear of 

persecution or torture, the asylum 

officer would have provided the alien 

with a written notice of decision 

regarding both the application of the bar 

and the lack of reasonable fear. 8 CFR 

208.30(e)(5)(iii) (proposed). The asylum 

officer’s findings then would have been 

subject to immigration judge review 

under 8 CFR 208.30(g) and 8 CFR 

1208.30(g), applying a reasonable 

possibility, not significant possibility, 

standard. Id. 

Under the IFR’s provisions, the 

immigration judge’s review of an 

asylum officer’s application of the thirdcountry-transit bar and accompanying 

negative ‘‘reasonable fear’’ finding, first 

would have been reviewed de novo in 

regard to the determination that the 

alien is ineligible for asylum as stated in 

8 CFR 208.13(c)(4). 8 CFR 1003.42(d)(3), 

1208.30(g)(2) (proposed). If the 

immigration judge had agreed with the 

asylum officer’s assessment that the bar 

at 8 CFR 208.13(c)(4) or 1208.13(c)(4) 

had applied, the immigration judge then 

would have proceeded to review the 

asylum officer’s negative reasonable fear 

finding. 8 CFR 1208.30(g)(2) (proposed). 

If the immigration judge instead had 

disagreed with the asylum officer’s 

application of the third-country-transit 

bar and concluded the alien is not 

ineligible for asylum, the immigration 

judge would have vacated the asylum 

officer’s determination. Id. DHS then 

would have commenced removal 

proceedings against the alien under 

section 240 of the Act, 8 U.S.C. 1229a, 

in which the alien could have filed an 

application for asylum and withholding 

of removal. Id. 

D. Procedural Validity of the Interim 

Final Rule 

The U.S. District Court for the District 

of Columbia vacated the IFR on the 

ground that, in the court’s view, the 

Departments failed to demonstrate 

sufficient ‘‘good cause’’ or foreign policy 

reasons for foregoing notice-andcomment rulemaking. Capital Area 

Immigrants’ Rights Coal. v. Trump 

(‘‘CAIR II’’), --- F. Supp. 3d ---, 2020 WL 

3542481 (D.D.C. June 30, 2020). The 

Supreme Court, however, recently held 

that an IFR containing all 

Administrative Procedure Act (‘‘APA’’)- 

required elements of a notice of 

proposed rulemaking (‘‘NPRM’’), as 

provided in 5 U.S.C. 553(b)–(d), satisfies 

the APA’s procedural requirements. 

Little Sisters of the Poor Saints Peter 

and Paul Home v. Pennsylvania, 140 S. 

Ct. 2367, 2384–86 (2020) (‘‘Little 

Sisters’’). The Court found that an IFR’s 

publication as an IFR rather than an 

NPRM did not invalidate the final rule; 

rather, the Court focused on whether 

‘‘fair notice’’ was provided to the public. 

Id. at 2385 (quoting Long Island Care at 

Home, Ltd. v. Coke, 551 U.S. 158, 174 

(2007)). 

Here, the IFR contained all APArequired elements of an NPRM: a 

reference to legal authority, as required 

by 5 U.S.C. 553(b)(2) (84 FR at 33832– 

34); a description of the terms and 

substance of the rule, as required by 5 

U.S.C. 553(b)(3) (84 FR at 33835–38); 

and a request for public comment, as 

required by 5 U.S.C. 553(c) (84 FR at 

33830). In addition, this final rule 

provides a statement of the rule’s 

purpose and basis, as required by 5 

U.S.C. 553(c). Further, this final rule is 

hereby published 30 days prior to its 

effective date as required by 5 U.S.C. 

553(d) and reiterated by the Court in 

Little Sisters. See 140 S. Ct. at 2386.4

Accordingly, this rulemaking provides 

the requisite notice and comment, and 

this final rule is procedurally sound. 

The Departments are now issuing this 

final rule to address the numerous 

comments received in response to the 

invitation publicly noticed in the IFR, 

and to ensure clarity regarding how the 

IFR interacts with the joint rule signed 

by the Attorney General and the Acting 

Secretary of DHS [hereinafter 

‘‘Intervening Joint Final Rule’’].5

II. Revisions to the Interim Final Rule 

in This Final Rule 

Following careful review of the IFR 

and the public comments received in 

response, this final rule makes the 

following changes, pursuant to the 

Departments’ authority under section 

208(b)(2)(C) of the Act, 8 U.S.C. 

82262 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

6The ACA IFR modified title 8 of the CFR to 

provide for the implementation of ‘‘Asylum 

Cooperative Agreements,’’ which are authorized by 

section 208(a)(2)(A) of the Act, 8 U.S.C. 

1158(a)(2)(A) and implemented by regulation 

primarily at 8 CFR 208.30(e)(6)–(7). Commenters 

alternately used the phrase ‘‘safe third country’’ to 

describe these agreements reached under section 

208(a)(2)(A) of the Act, 8 U.S.C. 1158(a)(2)(A), 

likely because the section of the U.S. Code related 

to such agreements is labelled the ‘‘[s]afe third 

country’’ exception. We have retained the ‘‘safe 

third country’’ phrasing when summarizing those 

comments. 

7The Intervening Joint Final Rule amended the 

cross-reference in the IFR from ‘‘8 CFR 

1208.30(g)(2)’’ to ‘‘8 CFR 1208.30(g).’’ Further, the 

Intervening Joint Final Rule amended 8 CFR 

1208.30(g)(1)(ii) to include specific cross references 

that were excluded from the IFR. No additional 

changes are necessary in this rulemaking. 

8The Departments reviewed all comments that 

were submitted in response to the rule. However, 

EOIR did not post 114 of the comments to 

regulations.gov for public inspection. Of these 

comments, 1 included obscenities, 1 included an 

image of an unidentified minor child, 2 included 

potential incitements to violence, 23 were 

duplicates of another comment submitted by the 

same commenter, and 87 were non-substantive 

comments of either ‘‘this is a test’’ or ‘‘please write 

your comment here’’ and did not indicate either 

support for or disagreement with the rule. 

1158(b)(2)(C), and finalizes this 

regulatory action. This final rule makes 

no additional changes to the IFR beyond 

the changes described below. 

A. Amendments to 8 CFR 208.13(c)(4)(i), 

(iii) and 1208.13(c)(4)(i), (iii) 

The IFR provided that an alien who 

enters, attempts to enter, or arrives in 

the United States across the southern 

land border after transiting through at 

least one country outside of the alien’s 

home country while en route to the 

United States will not be found 

ineligible for asylum if (1) the alien 

demonstrates that he or she applied for 

protection from persecution or torture in 

at least one country outside the alien’s 

country of citizenship, nationality, or 

last lawful habitual residence through 

which the alien transited en route to the 

United States and the alien received a 

final judgment denying the alien 

protection in such country, (2) the alien 

demonstrates that he or she satisfies the 

definition of ‘‘victim of a severe form of 

trafficking in persons’’ provided in 8 

CFR 214.11(a), or (3) if the only 

countries through which the alien 

transited en route to the United States 

were, at the time of the transit, not 

parties to the Refugee Convention or the 

Refugee Protocol. 

The final rule removes the references 

to torture and to the CAT in 

subparagraphs (i) and (iii) in deference 

to the concept that whether an alien has 

applied for protection from torture and 

whether a country through which an 

alien transits en route to the U.S. is a 

party to the CAT may not have a direct 

correlation to the immigration benefit of 

asylum, a grant of which is based on 

persecution or a well-founded fear of 

persecution on account of a protected 

ground. 

The final rule also changes the word 

‘‘countries’’ in 8 CFR 208.13(c)(4)(iii) 

and 1208.13(c)(4)(iii) to the phrase 

‘‘country or countries’’ to avoid 

confusion regarding situations in which 

an alien transits through only one 

country. No substantive change from the 

IFR is intended by this clarification. 

B. Amendment to 8 CFR 208.30(e)(5)(iii) 

As published in the IFR, 8 CFR 

208.30(e)(5)(iii) included a statement 

that the scope of review for proceedings 

before an immigration judge that 

involve an alien who an asylum officer 

has determined (1) is ineligible for 

asylum due to the third-country-transit 

bar at 8 CFR 208.13(c)(4) but (2) has a 

reasonable fear of persecution or torture 

is ‘‘limited to a determination of 

whether the alien is eligible for 

withholding or deferral of removal.’’ See 

8 CFR 208.30(e)(5)(iii). In addition, the 

same paragraph stated these aliens 

would be placed in section 240 removal 

proceedings ‘‘for consideration of the 

alien’s claim for withholding of removal 

under section 241(b)(3) of the Act, or for 

withholding or deferral of removal 

under the Convention Against Torture.’’ 

See id. The Intervening Joint Final Rule 

amended this section, however, and no 

further clarifying amendments in this 

section and by this final rule are 

necessary. 

C. Amendments to 8 CFR 208.30(e)(5)(i) 

In 8 CFR 208.30(e)(5)(i), the 

Departments would have revised the 

introductory language to correct a 

typographical error in the IFR by 

removing the reference to ‘‘paragraph 

(e)(5)(i)’’ in 8 CFR 208.30(e)(5)(i) and to 

reflect the publication of the interim 

final rule Implementing Bilateral and 

Multilateral Asylum Cooperative 

Agreements Under the Immigration and 

Nationality Act, 84 FR 63994 (Nov. 19, 

2019) (‘‘ACA IFR’’), which provides 

separate procedures in 8 CFR 

208.30(e)(7) for certain aliens subject to 

bilateral or multilateral agreements 

pursuant to section 208(a)(2)(A) of the 

Act, 8 U.S.C. 1158(a)(2)(A).6 The 

Intervening Joint Final Rule, however, 

amended this section to make those 

corrections, and no further clarifying 

amendments by this final rule are 

necessary. 

D. Amendments to 8 CFR 1003.42 

The IFR made edits to 8 CFR 1003.42 

to account for the addition of the thirdcountry-transit bar in immigration judge 

reviews of credible-fear determinations. 

The Intervening Joint Final Rule 

amended this section and no further 

clarifying amendments by this final rule 

are necessary. 

E. Typographical Corrections 

The Departments have also made a 

non-substantive amendment to crossreferences in regulations implicated by 

the IFR to change the reference in 8 CFR 

1208.13(c)(4) from 8 CFR 208.15 to 8 

CFR 1208.15 because section 1208.13 is 

in Chapter V of 8 CFR, which governs 

EOIR, and not Chapter I, which governs 

DHS.7

III. Public Comments on the Interim 

Final Rule 

A. Summary of Public Comments 

On July 16, 2019, DHS and DOJ 

jointly published the IFR in EOIR 

Docket No. 19–0504. The comment 

period associated with the IFR closed on 

August 15, 2019, with 1,847 comments 

received.8 Individual or anonymous 

commenters submitted the vast majority 

of comments. These commenters were 

divided between commenters 

supporting the rule and commenters 

opposing the rule. Of the 1,847 

comments, 50 were submitted by 

organizations, including nongovernment organizations, legal 

advocacy groups, non-profit 

organizations, and religious 

organizations. One of these 

organizations submitted a comment that 

provided support for the rule, while the 

other organizations expressed 

opposition to the rule. 

B. Comments Expressing Support 

Comment: The Departments received 

a significant number of comments in 

support of the IFR. The majority of these 

commenters voiced general support for 

the IFR and urged others to support the 

rule as well. The commenters described 

a ‘‘flood’’ or ‘‘avalanche’’ of immigrants 

at the southern land border and urged 

support for the IFR as a tool to deal with 

a ‘‘crisis.’’ Commenters described the 

IFR as helping to close ‘‘loopholes’’ in 

the asylum process. Some commenters 

urged asylum applicants to apply from 

their home country. 

Response: The Departments note the 

general support for the rule. The rule is 

designed neither to require nor allow 

applicants for asylum under U.S. law to 

apply in their home countries, but 

rather to generally require that an alien 

first apply under a third country’s laws 

outside the alien’s country of 

citizenship, nationality, or last lawful 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82263 

9This section addresses general assertions that 

the Departments lacked the legal authority to issue 

the IFR. Section III.C.2 of this preamble addresses 

comments and responses regarding the IFR’s 

relation to specific provisions of the Act. 

10The Homeland Security Act of 2002 (‘‘HSA’’), 

Public Law 107–296, Nov. 25, 2002, 116 Stat. 2135, 

as amended, transferred many immigration-related 

functions to a newly created DHS headed by the 

Secretary of Homeland Security (‘‘the Secretary’’). 

The HSA charges the Secretary with ‘‘the 

administration and enforcement of this chapter and 

all other laws relating to the immigration and 

naturalization of aliens.’’ INA 103(a)(1), 8 U.S.C. 

1103(a)(1). Further, the HSA authorizes the 

Secretary to take all actions ‘‘necessary for carrying 

out’’ the Act. INA 103(a)(3), 8 U.S.C. 1103(a)(3). The 

HSA nonetheless preserves authority over certain 

immigration adjudications for EOIR, which is part 

of DOJ and, thus, subject to the direction and 

regulation of the Attorney General. See INA 103(g), 

8 U.S.C. 1103(g); 6 U.S.C. 521. Accordingly, the 

Secretary along with the Attorney General may 

establish limitations and conditions on asylum 

eligibility under section 208(b)(2)(C) of the Act, 8 

U.S.C. 1158(b)(2)(C). 

habitual residence through which the 

alien transited en route to the United 

States. 

Comment: Commenters also indicated 

their support for the Administration’s 

immigration policies more generally. A 

significant number of commenters 

demanded that the government build a 

border wall. Many commenters urged 

the government to secure or completely 

close the southern land border in order 

to prevent drug smuggling and human 

trafficking, enhance national security, 

and prevent illegal immigration. 

Likewise, commenters called for general 

reform of asylum laws in order to 

prevent asylum abuse. Some 

commenters advocated eliminating 

asylum altogether. Other commenters 

were concerned about immigrants using 

public services and urged the 

government to focus resources on 

American citizens. Commenters 

encouraged the enforcement of existing 

immigration laws and requested 

pressure on Congress to address broader 

immigration reform. 

Response: The Departments note the 

support for enforcing the Nation’s 

immigration laws. The Departments, 

however, did not intend for the rule to 

address the myriad asylum and 

immigration issues covered in these 

comments. For example, this rule does 

not address building a border wall, the 

availability of public benefits to aliens, 

or whether Congress should enact 

comprehensive immigration reform. 

This rule is limited to the asylum 

application process at the southern land 

border and aims to (1) further the 

humanitarian purposes of asylum by 

more expeditiously providing relief to 

trafficking victims and individuals who 

are unable to obtain protection from 

persecution or torture elsewhere, and (2) 

deter meritless asylum claims. 

The Departments also strongly oppose 

eliminating asylum (which, in any 

event, would require the enactment of 

legislation by Congress). As stated in the 

Refugee Act of 1980, it is ‘‘the historic 

policy of the United States to respond 

to the urgent needs of persons subject to 

persecution in their homelands’’ 

through, among other tools, the asylum 

process. Pub. L. 96–212, sec. 101(a), 

Mar. 17, 1980, 94 Stat. 102 (‘‘Refugee 

Act’’). The Departments remain 

committed to ensuring that those 

asylees who most urgently need relief 

from persecution are able to obtain it in 

a timely manner. 

Comment: The Departments also 

received comments supporting the IFR 

as a means to help alleviate ‘‘the 

extraordinary strain placed on the 

nation’s immigration system by the 

unprecedented surge in meritless 

asylum claims at the southern land 

border since 2013’’ and ‘‘the consequent 

caseload backlogs caused by the record 

numbers of asylum applications being 

filed.’’ One organization also expressed 

support for the rule as a means to 

‘‘curtail the humanitarian crisis created 

by smugglers trafficking women, 

children, and entire family units.’’ The 

same organization suggested that the 

Departments amend the phrase, ‘‘shall 

be found ineligible for asylum, unless’’ 

in interim final regulations 8 CFR 

208.13(c)(4) and 1208.13(c)(4) to read 

‘‘shall be presumptively ineligible for 

asylum in the exercise of discretion, 

unless.’’ 

Response: The Departments note the 

support for the IFR. The Departments 

disagree with the suggested change to 

the regulatory text. The rule is intended 

to serve as a bar to asylum eligibility for 

those aliens described at 8 CFR 

208.13(c)(4) and 1208.13(c)(4), not a bar 

that an immigration judge or asylum 

officer may waive as a matter of 

discretion. The use of a bar promotes 

uniform application and is consistent 

with existing statutory bars in section 

208(b)(2)(A) of the Act, 8 U.S.C. 

1158(b)(2)(A), and those instituted by 

regulation pursuant to 208(b)(2)(C) of 

the Act, 8 U.S.C. 1158(b)(2)(C). 

C. Comments Expressing Opposition 

1. General Opposition to the Interim 

Final Rule and Assertions That the 

Departments Have Exceeded Their Legal 

Authority 

Comment: The Departments received 

several comments expressing general 

opposition to the IFR. Some 

commenters expressed opposition to the 

IFR without further explanation. Others 

asserted that the IFR conflicts with the 

Act, without citing specific provisions, 

and others opined that the Departments 

lack the authority to promulgate the IFR. 

One commenter stated broad disbelief 

that anyone could support the IFR. 

Response: Because these particular 

comments failed to articulate specific 

reasoning underlying expressions of 

general opposition, DHS and DOJ are 

unable to provide a more detailed 

response. 

The Departments were well within 

their legal authority, however, when 

promulgating the IFR.9 Congress, in the 

Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

(‘‘IIRIRA’’), vested the Departments with 

broad authority to establish conditions 

or limitations on asylum. Public Law 

104–208, Div. C, Sept. 30, 1996, 110 

Stat. 3009, 3009–546. In fact, as the 

Supreme Court has recognized, ‘‘a major 

objective of IIRIRA was to protect the 

Executive’s discretion from undue 

interference.’’ Dep’t of Homeland Sec. v. 

Thuraissigiam, 140 S. Ct. 1959, 1966 

(2020) (alteration and quotation marks 

omitted). Congress created three 

categories of aliens who are barred from 

applying for asylum and adopted six 

other mandatory bars to asylum 

eligibility. IIRIRA, sec. 604(a), 110 Stat. 

at 3009–690 to 694 (codified at sections 

208(a)(2)(A)–(C), (b)(2)(A)(i)–(vi) of the 

Act, 8 U.S.C. 1158(a)(2)(A)–(C), and 

(b)(2)(A)(i)–(vi)). These bars include the 

asylum cooperative agreement bar to 

applying for asylum and the firm 

resettlement bar to asylum eligibility. Id. 

The statutory list is not exhaustive. 

Instead, Congress, in IIRIRA, further 

expressly authorized the Attorney 

General to expound upon two bars to 

asylum eligibility—the bars for 

‘‘particularly serious crimes’’ and 

‘‘serious nonpolitical offenses.’’ INA 

208(b)(2)(B)(ii), 8 U.S.C. 

1158(b)(2)(B)(ii). Congress also vested 

the Attorney General with the ability to 

establish by regulation ‘‘any other 

conditions or limitations on the 

consideration of an application for 

asylum,’’ so long as those limitations are 

‘‘not inconsistent with this chapter.’’ 

INA 208(b)(2)(C), 8 U.S.C. 

1158(b)(2)(C).10

As the Tenth Circuit has recognized, 

‘‘[t]his delegation of authority means 

that Congress was prepared to accept 

administrative dilution of the asylum 

guarantee in § 1158(a)(1)’’ that aliens 

generally may file asylum applications, 

given that ‘‘the statute clearly 

empowers’’ the Attorney General and 

the Secretary to ‘‘adopt[ ] further 

limitations’’ on eligibility to apply for or 

receive asylum. R–S–C v. Sessions, 869 

F.3d 1176, 1187 & n.9 (10th Cir. 2017). 

In authorizing ‘‘additional limitations 

82264 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

11 DOJ duplicated 8 CFR 208.13 in its entirety at 

8 CFR 1208.13 following the codification of EOIR’s 

regulations in Chapter V of 8 CFR. Aliens and 

Nationality; Homeland Security; Reorganization of 

Regulations, 68 FR 9824 (Feb. 28, 2003). 

12The Ninth Circuit recently concluded that the 

Attorney General’s discretion to limit eligibility for 

asylum was narrower than the discretion to grant 

or deny asylum to aliens who are eligible for such 

relief. See E. Bay Sanctuary Covenant v. Barr, 964 

F.3d 832, 848 (9th Cir. 2020), pet. for reh’g en banc 

pending (filed Oct. 5, 2020). Specifically, the court 

determined that the Attorney General’s discretion to 

limit asylum eligibility ‘‘must be consistent with 

the core principle’’ of section 208 of the Act, 8 

U.S.C. 1158. Id. The Departments agree that their 

actions limiting eligibility must be ‘‘consistent 

with’’ section 208 of the Act, 8 U.S.C. 1158, and 

they promulgated the IFR with the understanding 

that doing so was indeed consistent with that 

section. See 84 FR at 33834. To the extent that the 

Ninth Circuit disagrees with the Departments’ 

position on this matter, the Departments have 

provided additional reasoning and evidence in this 

final rule to address such concerns. 

and conditions’’ by regulation, the 

statute gives the Attorney General and 

the Secretary broad authority in 

determining what the ‘‘limitations and 

conditions’’ should be. The Act 

instructs only that additional limitations 

on eligibility are to be established ‘‘by 

regulation,’’ and must be ‘‘consistent 

with’’ the rest of section 208 of the Act, 

8 U.S.C. 1158. See INA 208(b)(2)(C), 

(d)(5)(B), 8 U.S.C. 1158(b)(2)(C), 

(d)(5)(B). 

The Attorney General has previously 

invoked section 208(b)(2)(C) of the Act, 

8 U.S.C. 1158(b)(2)(C), to limit eligibility 

for asylum based on a ‘‘fundamental 

change in circumstances’’ and on the 

ability of an applicant to safely relocate 

internally within a country. See Asylum 

Procedures, 65 FR 76121, 76133–36 

(Dec. 6, 2000) (codified at 8 CFR 

208.13(b)(1)(i)(A), (B)).11 The courts in 

applying these limitations have not 

questioned the Attorney General’s 

authority to impose them. See, e.g., 

Afriyie v. Holder, 613 F.3d 924, 934–36 

(9th Cir. 2010) (discussing the allocation 

of the burden of proof regarding the 

reasonability of relocation); Uruci v. 

Holder, 558 F.3d 14, 19–20 (1st Cir. 

2009) (explaining that a Department of 

State country report may demonstrate a 

‘‘fundamental change in circumstances’’ 

sufficient to rebut the presumption of 

well-founded fear of persecution). The 

courts have also viewed section 

208(b)(2)(C) as conferring broad 

authority, see R–S–C, 869 F.3d at 1187, 

and have suggested that ineligibility 

based on fraud would be authorized 

under it, Nijjar v. Holder, 689 F.3d 1077, 

1082 (9th Cir. 2012) (noting that fraud 

could be ‘‘one of the ‘additional 

limitations . . . under which an alien 

shall be ineligible for asylum’ that the 

Attorney General is authorized to 

establish by regulation’’). 

Regarding the comment that questions 

any support for the IFR, a long-held 

principle of administrative law is that 

an agency, within its congressionally 

delegated policymaking responsibilities, 

may ‘‘properly rely upon the incumbent 

administration’s view of wise policy to 

inform its judgments.’’ Chevron, U.S.A., 

Inc. v. Nat. Res. Def. Council, Inc., 467 

U.S. 837, 865 (1984). Accordingly, an 

agency may make policy choices that 

Congress either inadvertently or 

intentionally left to be resolved by the 

agency charged with administration of 

the statute, given the current realities 

faced by the agency. See id. at 865–66. 

Specifically in the immigration context, 

Congress has expressly fortified the 

Executive’s broad discretion to make 

policy decisions on immigration matters 

without interference. As the Supreme 

Court recognized, a ‘‘major objective of 

IIRIRA’’ was to protect the Executive’s 

discretion to oversee immigration 

matters from ‘‘undue interference by the 

courts; indeed, that can fairly be said to 

be the theme of the legislation.’’ 

Thuraissigiam, 140 S. Ct. at 1965 

(alteration and quotation marks 

omitted).12 The current situation at the 

southern land border, specifically the 

sharp increase of encounters with aliens 

at the border, subsequent requests for 

asylum relief, and the large number of 

meritless, fraudulent, or non-urgent 

asylum claims that are straining the 

Nation’s immigration system, prompted 

the Departments to promulgate this rule. 

See 84 FR at 33830–31. As the Supreme 

Court noted in Thuraissigiam, the past 

decade has seen a 1,883 percent 

increase in credible-fear claims, with 

about 50 percent of those applicants 

found to have a credible fear never 

applying for asylum. 140 S. Ct. at 1967– 

68. Moreover, fraudulent asylum claims 

can be ‘‘difficult to detect,’’ given the 

expedited nature of the screening 

process and the large caseload. Id. The 

Court noted a study in which 58 percent 

of randomly selected asylum 

applications contained indicators of 

possible fraud, with 12 percent of those 

cases ultimately determined to be 

fraudulent. Id. at 1967 n.10. 

The current statutory framework 

accordingly leaves the Attorney General 

(and, after the HSA, the Secretary too) 

significant discretion to adopt 

additional bars to asylum eligibility. As 

further explained above, Congress 

specifically delegated authority to the 

Attorney General and the Secretary to 

‘‘establish additional limitations and 

conditions . . . under which an alien 

shall be ineligible for asylum.’’ INA 

208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). 

In Thuraissigiam, the Supreme Court 

recognized, in the context of the 

credible-fear process, that restrictions 

on Executive discretion to respond to 

strains on the immigration system and 

abuses of the system could ‘‘increase the 

burdens currently overwhelming our 

immigration system.’’ Thuraissigiam, 

140 S. Ct. at 1966 (quotation marks 

omitted). While Thuraissigiam ruled in 

the context of judicial review of 

credible-fear findings, the Supreme 

Court acknowledged that such burdens 

would exist ‘‘[e]ven without the added 

step of judicial review.’’ Id. The Court 

recognized that ‘‘[t]he majority of 

[credible-fear claims] have proved to be 

meritless.’’ Id. at 1967. The Court also 

stated, as noted above, that detection of 

fraudulent asylum claims is difficult, 

further noting that while all 

applications with indicators are not 

fraudulent, characteristics of such fraud 

are frequent and require more agency 

resources. See id. at 1967 & n.10. In light 

of these reasons, a right to judicial 

review that prolonged what was 

intended to be an expedited process 

could pose ‘‘significant consequences 

for the immigration system.’’ Id. at 1967. 

The Court stated that, in fact, the 

expedited process ‘‘would augment the 

burdens on that system’’ rather than 

alleviate them, as intended by Congress, 

because ‘‘[o]nce a fear is asserted, the 

process would no longer be expedited.’’ 

Id. 

Similarly, in the asylum context, the 

significant backlog in asylum cases, the 

need to prioritize meritorious 

applications, and the vast numbers of 

aliens attempting to enter at the 

southern land border all threaten to 

overwhelm the immigration system. As 

the Supreme Court recognized, over 

‘‘[t]he past decade’’ about 50 percent of 

aliens who were ‘‘found to have a 

credible fear . . . did not pursue 

asylum,’’ and, in 2019, ‘‘a grant of 

asylum followed a finding of credible 

fear just 15% of the time.’’ Id. at 1966– 

67. Because aliens are only required to 

meet a ‘‘low bar’’ for placement in the 

extensive proceedings associated with 

asylum claims, see id., it is imperative 

that the Departments establish clear 

criteria ensuring that such proceedings 

are for those who have meritorious 

claims or urgently require asylum 

protection in the United States, and 

such measures are consistent with the 

Act in order to avoid overwhelming the 

immigration system. 

Through the publication of the IFR, 

the Departments have properly 

exercised their congressionally 

delegated authority. Such policymaking 

is well within the confines of 

permissible agency action. 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82265 

13Since the enactment of the statutory provision 

authorizing such agreements in IIRIRA in 1996, the 

United States has signed agreements with 

Honduras, El Salvador, Guatemala, and Canada. See 

Agreement Between the Government of the United 

States of America and the Government of the 

Republic of Honduras for Cooperation in the 

Examination of Protection Claims, 85 FR 25462 

(May 1, 2020); DHS, Joint Statement Between the 

U.S. Government and the Government of El 

Salvador (Sept. 20, 2019), https://www.dhs.gov/ 

news/2019/09/20/joint-statement-between-usgovernment-and-government-el-salvador (last 

visited Dec. 10, 2020); 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) 

(‘‘U.S.-Guatemala ACA’’); Agreement for 

Cooperation in the Examination of Refugee Status 

Claims from Nationals of Third Countries, U.S.- 

Can., State Dep’t No. 05–35, Dec. 5, 2002, 2004 WL 

3269854. The Government has previously 

promulgated regulations implementing the 

agreement with Canada, see 8 CFR 208.30(e)(6), and 

the Government promulgated an IFR in November 

2019 establishing procedures for carrying out the 

remaining agreements and any future agreements. 

See 84 FR at 63994. Not all of these agreements are 

currently in force, however, because the agreement 

with El Salvador has yet to become effective. Also, 

in the case of Canada, a Canadian court held that 

the U.S.-Canada agreement violates certain 

provisions of Canada’s Constitution but suspended 

the declaration of invalidity until January 22, 2021. 

Canadian Council for Refugees v. Canada 

(Immigration, Refugees and Citizenship), 2020 F.C. 

770 (Fed. Ct.), appeal pending (Fed. Ct. App.). On 

October 26, 2020, Canada’s Federal Court of Appeal 

granted a stay of the lower court’s decision pending 

a final determination of the Canadian Government’s 

appeal. 2020 FCA 181 (Fed. Ct. App. Oct. 26, 2020). 

2. Interim Final Rule and the Act 

a. Asylum Cooperative Agreements 

Comment: Commenters, including a 

number of organizations and individual 

commenters, raised concerns that the 

IFR is inconsistent with the Act’s safethird-country bar to applying for 

asylum. See INA 208(a)(2)(A), 8 U.S.C. 

1158(a)(2)(A) (providing that an alien is 

ineligible to apply for U.S. asylum and 

may be removed, pursuant to a bilateral 

or multilateral agreement, to pursue his 

or her protection claims in a country, 

other than the country of the alien’s 

nationality or last habitual residence, in 

which (1) ‘‘the alien’s life or freedom 

would not be threatened on account of 

race, religion, nationality, membership 

in a particular social group, or political 

opinion,’’ and where (2) ‘‘the alien 

would have access to a full and fair 

procedure for determining a claim to 

asylum or equivalent temporary 

protection’’). Some commenters argued 

that Congress intended for the safethird-country bar (or the safe-thirdcountry bar coupled with the firm 

resettlement bar at section 

208(b)(2)(A)(vi) of the Act, 8 U.S.C. 

1158(b)(2)(A)(vi)), to be the sole means 

by which an alien may be denied 

asylum based on a relationship with a 

third country. Commenters also stated 

that the IFR renders the safe-thirdcountry bar superfluous because the 

rule bars individuals from applying for 

asylum regardless of whether the 

country was a signatory to a safe-thirdcountry agreement. Relatedly, 

commenters were concerned that the 

IFR is inconsistent with the Act because 

the IFR does not require the United 

States to have a bilateral or multilateral 

agreement with a third country and 

instead focuses on whether the country 

is a party to specified international 

accords. See 8 CFR 208.13(c)(4)(iii), 

1208.13(c)(4)(iii). Commenters were also 

concerned that the IFR does not 

adequately consider or require an 

individualized determination as to 

whether a third country is ‘‘safe’’ for 

asylum seekers or has an adequate 

system for granting protection against 

persecution and torture. Some 

commenters stated that the United 

States must ensure that no person faces 

persecution in a third country and that 

people have access to a robust asylum 

system in a third country when seeking 

protection. 

Response: This rule is consistent 

with, and complementary to, the Act’s 

provision authorizing Asylum 

Cooperative Agreements with third 

countries. See INA 208(a)(2)(A), 8 U.S.C. 

1158(a)(2)(A) (‘‘the ACA bar’’); 84 FR at 

33834. The ACA bar operates as a bar 

to aliens who are covered by such an 

agreement; such aliens would be barred 

from applying for asylum in the U.S. 

pursuant to section 208(a)(2)(A) of the 

Act, 8 U.S.C. 1158(a)(2)(A).13 Under the 

Act, the United States has statutory 

authority to negotiate agreements with 

third countries. Moreover, nothing in 

the Act requires that an alien have first 

traveled through, or sought protection, 

in that third country for the bar to 

apply. Rather, the ACA bar authorizes 

removal of covered aliens to a third 

country that has agreed to share 

responsibility with the United States for 

considering such aliens’ claims for 

asylum or equivalent temporary 

protection. The authority to remove 

aliens under an Asylum Cooperative 

Agreement is limited to only those 

countries with which the United States 

has an agreement and that provide 

‘‘access to a full and fair procedure for 

determining a claim to asylum or 

equivalent temporary protection,’’ INA 

208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A)—a 

requirement absent from this thirdcountry-transit rule or the statutory 

provision pursuant to which it is 

promulgated. As stated previously, the 

third country to which an alien may be 

removed under the ACA bar in section 

208(a)(2)(A) of the Act, 8 U.S.C. 

1158(a)(2)(A) need not be a country 

through which the alien transited en 

route to the United States. 

In addition, the ACA bar creates a bar 

to applying for asylum in the United 

States—unlike this third-country-transit 

rule, which creates a bar to asylum 

eligibility for aliens who have applied 

for such relief in the United States. The 

ACA bar to applying for protection 

serves a different purpose from creating 

a bar to eligibility for protection. The 

ACA bar involves no determination 

about the merits of an alien’s underlying 

asylum claim, instead providing a 

mechanism for an alien’s protection 

claims to be considered fully by a third 

country that has satisfied the criteria 

under section 208(a)(2)(A) of the Act, 8 

U.S.C. 1158(a)(2)(A), and agreed to help 

share responsibility with the United 

States to provide relief to aliens needing 

protection. 

Nothing in the Act suggests that 

Congress intended for the ACA bar at 

section 208(a)(2)(A) of the Act, 8 U.S.C. 

1158(a)(2)(A), or the ACA bar coupled 

with the Act’s firm resettlement bar at 

section 208(b)(2)(A)(vi) of the Act, 8 

U.S.C. 1158(b)(2)(A)(vi), to prevent the 

Departments from establishing 

limitations on asylum eligibility based 

on an alien’s travel through, or 

relationship with, a third country. As 

discussed above in Section III.C.1 of this 

preamble, Congress provided the 

Attorney General (and, now, the 

Secretary) with authority to implement 

additional conditions and limitations on 

asylum eligibility at the same time that 

Congress enacted the ACA bar. INA 

208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). 

Congress thus authorized the Attorney 

General and the Secretary to establish 

conditions and limitations on asylum 

eligibility in addition to, for example, 

the ACA bar and firm resettlement bar. 

Further, an alien’s failure to seek such 

protection in a third country has long 

been recognized as a factor that could be 

considered in terms of whether to deny 

asylum as a matter of discretion, 

independent of the ACA or firm 

resettlement bars. See Matter of Pula, 19 

I&N Dec. 467, 473–74 (BIA 1987), 

superseded in part on other grounds as 

stated in Andriasian v. INS, 180 F.3d 

1033, 1043–44 & n.17 (9th Cir. 1999). 

The rule thereby complements, rather 

than conflicts with, section 208(a)(2)(A) 

of the Act, 8 U.S.C. 1158(a)(2)(A). The 

ACA bar is designed ‘‘to prevent forumshopping by asylum seekers, and to 

promote the orderly handling of asylum 

claims.’’ See United States v. Malenge, 

294 F. App’x 642, 645 (2d Cir. 2008) 

(discussing the purpose of the 

agreement between the United States 

and Canada pursuant to section 

208(a)(2)(A) of the Act, 8 U.S.C. 

82266 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

14The Departments acknowledge that the district 

court in the CAIR litigation later vacated the IFR in 

ruling on cross motions for summary judgment. See 

‘‘CAIR II,’’ --- F. Supp. 3d ---, 2020 WL 3542481. 

The court, however, addressed only the plaintiffs’ 

procedural claim under the APA and did not 

discuss the claim that the IFR is contrary to the 

INA. See id. at *5 (holding that ‘‘Defendants 

unlawfully promulgated the rule without 

complying with the APA’s notice-and-comment 

requirements,’’ and thus the court ‘‘need not reach 

Plaintiffs’ other claims concerning the validity of 

the rule’’). The Departments also acknowledge that 

the Ninth Circuit has concluded that the IFR is not 

consistent with the ACA bar. See E. Bay Sanctuary 

Covenant, 964 F.3d at 846–49. The Ninth Circuit’s 

preliminary injunction remains stayed pending the 

court’s decision on the Government’s petition for 

rehearing en banc and, if that petition is denied, the 

Government’s decision to file a petition for writ of 

certiorari and, if such writ is filed, the Supreme 

Court’s disposition. Barr v. E. Bay Sanctuary 

Covenant, 140 S. Ct. 3 (2019). To the extent that 

these decisions conflict, the Departments believe 

that the decision in CAIR I is more persuasive. 

15For example, a third country that is party to the 

1951 Convention provides protection to refugees 

consistent with its non-refoulement obligations 

under Article 33.1 of the 1951 Convention. See 19 

U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176 (‘‘No 

Contracting State shall expel or return (‘refouler’) a 

refugee in any manner whatsoever to the frontiers 

of territories where his life or freedom would be 

threatened on account of his race, religion, 

nationality, membership of a particular social group 

or political opinion.’’). 

16These comments were submitted before the 

United States signed the previously mentioned 

agreements with Honduras and El Salvador. 

17These comments were submitted before the 

United States implemented the U.S.-Guatemala 

ACA. See 84 FR 64095. 

1158(a)(2)(A)). This rule likewise aims 

to prevent aliens from ‘‘forum-shopping 

. . . after transiting through one or more 

third countries where [an alien] could 

have sought protection, but did not.’’ 84 

FR at 33834. 

Further, the rule is not inconsistent 

with the Act merely because it 

addresses, at a high level of generality, 

a subject matter similar to the ACA bar 

(i.e., the availability of asylum for aliens 

who may be able to obtain protection in 

a third country). To read the existing 

exceptions for the availability of asylum 

as occupying the entire field of 

permissible exceptions on the same or 

related topics would render meaningless 

the Act’s express grant of authority to 

the Attorney General and Secretary to 

establish additional limitations on 

asylum eligibility. See INA 208(b)(2)(C), 

8 U.S.C. 1158(b)(2)(C); see also TRW 

Inc. v. Andrews, 534 U.S. 19, 31 (2001) 

(quoting Duncan v. Walker, 533 U.S. 

167, 174 (1994) (observing that a statute 

should be construed so that ‘‘no clause, 

sentence, or word shall be superfluous, 

void, or insignificant’’ (quotation marks 

omitted)); Stone v. INS, 514 U.S. 386, 

397 (1995) (‘‘When Congress acts to 

amend a statute, we presume it intends 

its amendment to have real and 

substantial effect.’’). One district court 

considering the legality of the IFR has 

already expressed strong doubts about 

such an argument because it would 

place too great a restriction on the 

Attorney General’s and Secretary’s 

authority. See Capital Area Immigrants’ 

Rights Coal. v. Trump (‘‘CAIR I’’), --- F. 

Supp. 3d ---, 2019 WL 3436501, at *3 

(D.D.C. July 24, 2019), ECF No. 28 

(explaining in an oral ruling that ‘‘the 

plaintiffs are reading too strict a 

limitation on to the Attorney General’s 

authority’’ and expressing strong doubts 

regarding the argument that ‘‘anytime 

the Attorney General enacts a limitation 

that covers the same concern as one of 

those addressed by the statutory bars, 

it’s necessarily inconsistent’’ with the 

Act).14 The Supreme Court has likewise 

rejected a similar argument: In Trump v. 

Hawaii, the Court determined that the 

Act’s provisions regarding the entry of 

aliens ‘‘did not implicitly foreclose the 

Executive from imposing tighter 

restrictions,’’ even in circumstances in 

which those restrictions concerned a 

subject ‘‘similar’’ to the one that 

Congress ‘‘already touch[ed] on in the 

INA.’’ 138 S. Ct. 2392, 2411–12 (2018). 

Thus, by the same reasoning, Congress’s 

statutory command that certain aliens 

are ineligible to apply for asylum does 

not deprive the Attorney General and 

Secretary of authority, by regulation, to 

deny asylum eligibility for certain other 

aliens whose circumstances may—in a 

general sense—be ‘‘similar.’’ 

The Departments emphasize that the 

rule is consistent with, yet distinct from, 

the ACA bar. The rule is distinguishable 

because it provides for a tailored 

determination of whether an alien 

passed through a country where he or 

she could have applied for relief, but 

did not do so. The rule is consistent 

with the Act’s ACA bar because, among 

the other reasons detailed above, the 

rule’s denial of asylum where relief 

could have been pursued in a transit 

country is entirely consistent with the 

ACA bar’s objective to help ease the 

strain on the overburdened immigration 

system. See 84 FR at 63996. Thus, far 

from conflicting with the ACA bar, this 

rule complements it, reaching 

additional classes of aliens who have 

requested asylum, expressed a fear of 

return, or claimed a fear of persecution 

or torture when being apprehended or 

encountered by DHS. 

Regarding comments that the IFR does 

not adequately consider whether a third 

country is ‘‘safe’’ for asylum seekers, the 

Departments note that 8 CFR 

208.13(c)(4)(iii) and 1208.13(c)(4)(iii) 

apply only if an alien has transited 

through a third country that is a party 

to one of the specified international 

conventions that establish nonrefoulement obligations. By becoming a 

party to those treaties, the third 

countries in which an alien may be 

required to apply for protection under 

this rule are obligated, based on the 

treaties they have joined, to provide 

protection from removal of an 

individual to country where his or her 

life or freedom would be threatened on 

account of a protected ground.15 Aliens 

who choose not to apply for relief 

within such a country because— 

notwithstanding the country’s 

obligations under international 

conventions—because of their concerns 

about that country’s safety, their fear of 

persecution or torture in the transit 

country, the inability of the transit 

country to offer them protection, or 

other concerns may be considered for 

withholding of removal under section 

241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), 

or withholding of removal or deferral of 

removal under the CAT regulations, in 

the United States. 

Comment: Some commenters noted 

that the United States has entered into 

only one ‘‘safe third country 

agreement,’’ an agreement with 

Canada.16 Commenters further observed 

that neither Mexico nor Guatemala has 

entered into safe-third-country 

agreements with the United States.17

One commenter emphasized that the 

legality of the United States’ safe-thirdcountry agreement with Guatemala is 

unclear. Other commenters argued that, 

under the Act, it is not enough that the 

United States has entered into a safethird-country agreement; the third 

country must offer applicants a full and 

fair procedure. 

Response: As previously noted, this 

rule is promulgated pursuant to the 

authority provided under section 

208(b)(2)(C) of the Act, 8 U.S.C. 

1158(b)(2)(C), which authorizes the 

placement of ‘‘ ‘additional limitations 

and conditions . . . under which an 

alien shall be ineligible for asylum’ 

established by a regulation that is 

‘consistent with’ section 208 of the 

INA.’’ 84 FR at 33832. This rule is not 

intended to implement an Asylum 

Cooperative Agreement under section 

208(a)(2)(A) of the Act, 8 U.S.C. 

1158(a)(2)(A). Any discussion of the 

legality or sufficiency of the Asylum 

Cooperative Agreement between the 

United States and Guatemala, or any 

other country, is beyond the scope of 

this rulemaking. 

b. Firm Resettlement 

Comment: Numerous commenters 

expressed concern that the IFR conflicts 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82267 

18The Departments note that the Ninth Circuit 

recently held that the IFR was inconsistent with 

section 208 of the INA, 8 U.S.C. 1158, including the 

firm resettlement bar in section 208(b)(2)(A)(vi) of 

the Act, 8 U.S.C. 1158(b)(2)(A)(vi). E. Bay Sanctuary 

Covenant, 964 F.3d at 846–49; see also Barr, 140 S. 

Ct. 3 (staying preliminary injunction regarding the 

IFR). The Departments, however, have addressed 

the Ninth Circuit’s concerns by further explaining 

in this final rule how the transit bar is consistent 

with section 208 of the Act, 8 U.S.C. 1158. 

19The Departments published an NPRM that, 

inter alia, proposed amending the definition of firm 

resettlement, Procedures for Asylum and 

Withholding of Removal; Credible Fear and 

Reasonable Fear Review, 85 FR 36264 (June 15, 

2020), which has recently been finalized, 

Procedures for Asylum and Withholding of 

Removal; Credible Fear and Reasonable Fear 

Review, signed on December 2, 2020. The new 

definition refers to receipt or eligibility for 

permanent legal immigration status or nonpermanent but indefinitely renewable legal 

immigration status, rather than an offer of 

permanent resident status. Id. It also refers to aliens 

who have spent at least a year in a third country, 

regardless of whether such status was available. Id. 

Continued 

with the firm resettlement bar to asylum 

eligibility because the rule precludes 

eligibility for asylum for aliens who 

have passed through a third country 

even if they have not been offered 

permanent status in that third country. 

See INA 208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi) (providing for the firm 

resettlement bar, which renders an 

applicant who ‘‘was firmly resettled in 

another country prior to arriving in the 

United States’’ ineligible for asylum). 

Commenters argued that Congress 

intended that an alien have a more 

significant relationship with a third 

country—i.e., be firmly resettled in that 

country rather than be merely transiting 

through the country—to be rendered 

ineligible for asylum. 

Some commenters also opposed the 

IFR because it does not account for 

whether an alien is eligible for 

permanent legal status in the third 

country and because it does not account 

for the risk of harm that an alien might 

face in the third country. 

Response: The Departments reiterate 

the explanation in the IFR that it is 

consistent with the firm resettlement bar 

under section 208(b)(2)(A)(vi) of the 

Act, 8 U.S.C. 1158(b)(2)(A)(vi). 84 FR at 

33834.18 The rule is distinct from the 

firm resettlement bar. While both the 

rule and the firm resettlement bar seek 

to reduce forum-shopping by aliens, 

compare 84 FR at 33834, with INA 

208(b)(2)(A)(vi), 8 U.S.C. 

1158(b)(2)(A)(vi), this transit rule is not 

linked to, and takes a different approach 

from, the firm resettlement bar. The rule 

does not entirely eliminate asylum 

eligibility based on an alien’s stay in 

another country. Rather, under the rule, 

aliens remain eligible for asylum so long 

as they applied for and were denied 

protection in the relevant third country. 

See 8 CFR 208.13(c)(4)(iii), 

1208.13(c)(4)(iii). 

The existence of the firm resettlement 

bar should not be interpreted as an 

implicit foreclosure of additional 

limitations on asylum eligibility for 

aliens who have travelled through other 

countries. The Supreme Court, as 

explained above, has already rejected a 

similar approach to reading the Act. See 

Trump, 138 S. Ct. at 2411–12 (noting 

that the Act’s explicit statutory 

provisions ‘‘did not implicitly foreclose 

the Executive from imposing tighter 

restrictions’’ in ‘‘similar’’ areas). 

Further, the firm resettlement bar and 

this final rule operate in distinctly 

different manners. The firm resettlement 

bar merely prohibits the Executive from 

granting asylum to aliens who have 

firmly resettled in a third country prior 

to arriving in the United States. That bar 

does not require that those aliens who 

have not firmly resettled should be 

eligible for or be granted asylum. As a 

discretionary form of relief, no alien, 

even if qualified for it, is entitled to it. 

Thuraissigiam, 140 S. Ct. at 1965 n.4 

(‘‘A grant of asylum enables an alien to 

enter the country, but even if an 

applicant qualifies, an actual grant of 

asylum is discretionary.’’). Thus, any 

decision on eligibility for such aliens 

remains committed to the discretion of 

the Attorney General and the Secretary 

either through their rulemaking 

authority, see INA 208(b)(2)(C), 8 U.S.C. 

1158(b)(2)(C), or through the general 

requirement that an alien demonstrate 

that he or she merits a favorable exercise 

of discretion, see INA 208(b)(1), 8 U.S.C. 

1158(b)(1). The rule constitutes an 

exercise of this discretion that supplies 

a rule of decision for aliens who fall 

outside the scope of the firm 

resettlement bar. Put differently, 

Congress mandated that certain aliens 

should be excluded from asylum 

eligibility in order to prevent forumshopping by asylum seekers. But 

Congress left to the Attorney General 

(and, after the HSA, the Secretary) to 

promulgate additional rules regarding 

asylum eligibility—such as this final 

rule—that might also deter forumshopping. The rule accordingly does not 

conflict with the firm resettlement bar’s 

prohibition on granting asylum to 

certain aliens. See, e.g., Cheney R. Co., 

Inc. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 

1990) (‘‘[T]he contrast between 

Congress’s mandate in one context with 

its silence in another suggests not a 

prohibition but simply a decision not to 

mandate any solution in the second 

context, i.e., to leave the question to 

agency discretion.’’). 

Moreover, the rule reasonably 

complements the firm resettlement bar. 

That bar, as noted above, categorically 

denies eligibility to aliens who have 

‘‘firmly resettled’’ in a different country 

because those aliens do not need the 

protections afforded to asylees in this 

country. The Departments have 

concluded that aliens who do not even 

apply for asylum in a third country are 

similarly unlikely to warrant the 

protections associated with asylum. The 

firm resettlement bar and the rule thus 

complement one another by denying 

eligibility to those aliens who are least 

likely to need asylum, and there 

accordingly is no inconsistency between 

the two provisions. Both provisions, in 

other words, advance the overall goal of 

the asylum statute by focusing relief on 

applicants who have ‘‘nowhere else to 

turn.’’ Sall v. Gonzales, 437 F.3d 229, 

233 (2d Cir. 2006). Both bars also are 

reasonably aimed at ‘‘ ‘encourag[ing]’ 

other nations ‘to provide assistance and 

resettlement.’ ’’ Pao Yang v. INS, 79 

F.3d 932, 939 (9th Cir. 1996) (quoting 

section 101 of the Refugee Act). 

Comment: Some commenters stated 

that the IFR effectively writes the firm 

resettlement bar out of the Act because 

it sets forth a categorical bar to asylum 

for passing through a third country, thus 

negating any need to make a 

determination on whether an alien has 

firmly resettled. Some commenters 

stated that the United States must be 

able to guarantee permanent protection 

in a third country in order to determine 

that an alien has firmly resettled there. 

Commenters also expressed concern 

that the rule conflicts with the 

individualized analysis required by the 

definition of ‘‘firm resettlement’’ in the 

regulations. See 8 CFR 208.15, 1208.15. 

Response: This rule does not 

overwrite the firm resettlement bar. The 

rule addresses a different set of aliens: 

It applies to those aliens who could 

have sought protection, but who did not 

do so, in a third country through which 

they transited en route to seek asylum 

at the southern land border of the 

United States. The firm resettlement bar, 

in contrast, applies to aliens who have 

received an offer of permanent status or 

resettlement in a third country before 

arriving in the United States. See INA 

208(a)(2)(A)(vi), 8 U.S.C. 

1158(a)(2)(A)(vi); 8 CFR 208.15, 1208.15 

(2019) (defining ‘‘firm resettlement’’ to 

include circumstances in which an 

alien, prior to arriving in the United 

States, ‘‘entered into another country 

with, or while in that country received, 

an offer of permanent resident status, 

citizenship, or some other type of 

permanent resettlement’’).19 The 

82268 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

That amendment, however, does not alter the point 

expressed in this final rule that the firm 

resettlement bar addresses a different set of aliens 

than those subject to this rule. To the contrary, that 

amendment—which addresses situations involving 

renunciation of citizenship and the Migrant 

Protection Protocols, neither of which are involved 

in the application of this rule—further crystalizes 

the distinctiveness of this rule from the firm 

resettlement bar. 

20See note 20, supra. 

21The Ninth Circuit cast doubt on the 

reasonableness of this expectation in light of 

potentially unsafe conditions in Mexico. See E. Bay 

Sanctuary Covenant, 964 F.3d at 859 (Miller, J., 

concurring in part) (‘‘The key factual premise of 

[the Departments’] reasoning is that asylum in 

Mexico (or Guatemala) is indeed an ‘available’ 

opportunity, so that legitimate asylum seekers can 

reasonably be expected to apply for protection 

there. But that premise is contradicted by the 

agencies’ own record.’’). As explained more fully 

below, the Departments have considered the Ninth 

Circuit’s opinion, have consulted additional sources 

of evidence, and have concluded again that Mexico 

and other countries are indeed capable of safely 

providing refuge for asylum seekers, thus 

substantiating the ‘‘key factual premise’’ for one of 

the Departments’ rationales in promulgating the 

rule. 

22The Departments note that this result is 

different from the district court’s reasoning in 

granting a preliminary injunction in Al Otro Lado, 

Inc. v. McAleenan, 423 F. Supp. 3d 848, 875–76 

(S.D. Cal. 2019), which included aliens who 

approached a U.S. port of entry but were not 

immediately permitted to cross the border as within 

the class of aliens who had ‘‘attempted to enter or 

arrived in’’ the United States. See Al Otro Lado v. 

McAleenan, 394 F. Supp. 3d 1168, 1199–1205 (S.D. 

Cal. 2019). The district court’s interpretation is 

contrary to the Departments’ intent, as explained 

below. The Departments also note that, even if 

aliens subject to metering prior to July 16, 2019, 

were exempt from this rule, they would 

nevertheless become subject to the rule upon any 

different focus of these bars 

consequently means that not all aliens 

covered by one bar are necessarily 

covered by the other, contrary to the 

contention that this rule overrides the 

statutory firm resettlement bar. For 

example, the firm resettlement bar 

retains effect for any alien not covered 

by the third country transit bar, such as 

aliens who have sought protection in 

any third country in transit to the 

United States but who have been denied 

such protection, and all persons subject 

to specific forms of human trafficking. 

An alien could transit numerous 

countries en route to the United States, 

be denied protection in one country, 

and obtain firm resettlement in another, 

then only later attempt to obtain relief 

in the United States. In such cases, it 

would be firm resettlement, not third 

country transit, which would bar 

eligibility for asylum. 

Similarly, this rule limits forumshopping by certain aliens outside the 

scope of the firm resettlement bar. For 

example, travelers spending less than a 

year in a third country en route to the 

United States without receipt or 

eligibility for permanent legal 

immigration status or non-permanent 

but indefinitely renewable legal 

immigration status 20 from that third 

country or another would not fall under 

the statutory firm resettlement bar, but 

they would be ineligible for asylum 

under this rule—unless they had 

applied for, and been denied asylum 

eligibility, in any of the third countries 

through which they transited to reach 

the U.S. border. This rule thus bars 

individuals who have not been firmly 

resettled. Despite the somewhat 

different classes of aliens encompassed 

within each bar—one statutory and one 

a regulatory exercise of statutorily 

granted authority—both bars are 

consistent in their purpose. As 

explained in the IFR, both bars do 

important work to prevent forumshopping, helping to ensure that the 

U.S. asylum process and immigration 

court system are available to those 

aliens who are in greatest need of 

assistance, not aliens who are merely 

‘‘seeking to choose among a number of 

safe countries.’’ 84 FR at 33834. 

Comment: Commenters stated that the 

IFR is overbroad because, even where an 

alien has received an offer to remain in 

a third country, he or she may not be 

found to have firmly resettled if the 

alien can demonstrate that his or her 

entry into the transit country was a 

necessary consequence of flight from 

persecution, that he or she remained 

only long enough to arrange onward 

travel and did not establish significant 

ties, or that his or her conditions of 

residence were so restricted that he or 

she was not in fact resettled. 

Response: As explained above, the 

rule is distinct from the firm 

resettlement bar. The rule is not 

designed to address aliens who have 

firmly resettled or developed significant 

ties elsewhere. Instead, it is designed to 

identify applicants who are most in 

need because they have no other 

country of refuge, and to curtail the 

ability of aliens to use the asylum 

process as an end-run around the 

immigration system. It is reasonable to 

expect that an alien who is fleeing 

persecution will seek protection in the 

first country where it is available, as 

opposed to waiting until arrival in the 

United States.21

c. Whether or Not at a Port of Entry 

Comment: Numerous comments 

expressed the view that the IFR conflicts 

with section 208(a)(1) of the Act, 8 

U.S.C. 1158(a)(1), which states that 

‘‘[a]ny alien who . . . arrives in the 

United States (whether or not at a 

designated port of arrival . . .) . . . may 

apply for asylum.’’ Some commenters 

stated that, because any non-Mexican 

asylum seekers coming to the southern 

land border necessarily transited 

through another country, the rule 

undermines the ‘‘whether or not at a 

designated port of arrival’’ language of 

the INA. Commenters also expressed 

concern that the IFR contravenes the 

INA’s language that ‘‘anyone physically 

present in the United States’’ may apply 

for asylum. 

Response: The rule is consistent with 

section 208(a)(1) of the Act, 8 U.S.C 

1158(a)(1), which provides that aliens 

present or arriving in the United States, 

regardless of whether they are at a port 

of entry, may apply for asylum ‘‘in 

accordance with this section.’’ Section 

208(b) of the Act, 8 U.S.C. 1158(b), then 

establishes conditions for granting 

asylum and states that the Attorney 

General (and, now, the Secretary) ‘‘may 

grant asylum to an alien who has 

applied for asylum in accordance with 

the requirements and procedures 

established by the Secretary of 

Homeland Security or the Attorney 

General under this section.’’ 

This rule does not bar any alien who 

expresses a fear of persecution from 

applying for asylum, and, in accordance 

with section 208(a)(1) of the Act, 8 

U.S.C. 1158(a)(1), aliens impacted by 

the IFR may apply for asylum whether 

or not they are at a port of entry. The 

rule provides, however, that those who 

apply for asylum after travelling through 

a third country without first applying 

for, and being denied, protection in that 

third country (except for trafficking 

victims and aliens whose travel is only 

through countries that are not party to 

the relevant treaties) are ineligible to 

receive asylum. This rule’s asylum 

eligibility bar is based on an alien 

declining to apply for asylum in one of 

the first countries in which such relief 

may have been available, prior to 

reaching the southern land border— 

thereby undermining the purported 

urgency of the alien’s need for relief. 

For clarity, the Departments note that 

this rule applies to all aliens who enter, 

attempt to enter, or arrive in the United 

States across the southern land border 

on or after July 16, 2019. These three 

terms, as explained more fully below, 

require physical presence in the United 

States, and, as a result, any aliens who 

did not physically enter the United 

States before July 16, 2019, are subject 

to this rule. This includes, for example, 

aliens who may have approached the 

U.S. border but were subject to metering 

by DHS at a land border port of entry 

and did not physically cross the border 

into the United States before July 16, 

2019.22

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82269 

subsequent entry into the United States. See Al Otro 

Lado v. Wolf, 952 F.3d 999, 1017 (9th Cir. 2020) 

(Bress, J., dissenting) (‘‘Even so, the Third Country 

Transit Rule plainly applies to the plaintiffs in this 

case, so that enjoining it as to them was legal error. 

The Third Country Transit Rule applies to ‘any 

alien who enters, attempts to enter, or arrives in the 

United States across the southern land border on or 

after July 16, 2019.’ 8 CFR 208.13(c)(4). When 

plaintiffs reach this country, they will be entering 

or arriving in the United States after that date; the 

Rule thus plainly covers them.’’). 

23For example, in order to be inspected and 

processed, an application for admission must be 

physically present in the United States. See INA 

235(a)(1), 8 U.S.C. 1225(a)(1) (applying to an alien 

who arrives ‘‘in’’ the United States). Additionally, 

in order to be processed for expedited removal, an 

alien must also first be present in the United States. 

See INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i) 

(requiring removal ‘‘from the United States’’ of ‘‘an 

alien . . . who is arriving in the United States’’). 

24The authority to set additional limitations and 

conditions at section 208(b)(2)(C) of the Act, 8 

U.S.C. 1158(b)(2)(C), is discussed further in 

preceding Section III.C.1. 

As an initial matter, the terms ‘‘entry’’ 

and ‘‘arrive’’ require physical presence 

in the United States. For example, the 

term ‘‘entry,’’ which has a longstanding 

definition in immigration law, generally 

requires physical presence in the United 

States free from official restraint, after 

inspection and admission at a port of 

entry or intentional evasion at or 

outside of a port of entry. See Matter of 

Patel, 20 I&N Dec. 368, 370 (BIA 1991) 

(citing, inter alia, Matter of Pierre, 14 

I&N Dec. 467, 468 (BIA 1973)). 

Similarly, although the U.S. Code does 

not define the term ‘‘arrival’’ (or 

‘‘arrive’’), the term is consistently 

accompanied by the phrase ‘‘in the 

United States.’’ See, e.g., INA 

208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). 

Specifically, section 208(a) of the Act, 8 

U.S.C. 1158(a), states that an alien who 

‘‘arrives in’’ the United States may seek 

asylum. The present tense phrase 

‘‘arrives in’’ thus speaks to actual, 

ongoing arrival in the United States, not 

some potential arrival in the future. 

Similarly, the term ‘‘arriving alien’’ is 

defined by regulation as ‘‘an applicant 

for admission coming or attempting to 

come into the United States at a port-ofentry, or an alien seeking transit through 

the United States at a port-of-entry, or 

an alien interdicted in international or 

United States waters and brought into 

the United States by any means’’—all of 

which require the alien to be physically 

present in the port of entry. See 8 CFR 

1.2, 1001.1(q). An alien cannot be an 

‘‘applicant for admission’’ unless he is 

‘‘present in the United States’’ or 

‘‘arrives in the United States,’’ INA 

235(a)(1), 8 U.S.C. 1225(a)(1), and he 

cannot be ‘‘at a port-of-entry’’ unless he 

is in the United States, see, e.g., United 

States v. Aldana, 878 F.3d 877, 882 (9th 

Cir. 2017) (explaining that ports of entry 

are physical facilities in U.S. territory); 

see also 8 CFR 235.1(a), 1235.1(a) 

(application to lawfully enter ‘‘shall be 

made . . . at a U.S. port-of-entry when 

the port is open for inspection’’). 

Consistent with this reasoning, an 

immigration officer’s duty to refer an 

alien ‘‘who is arriving in the United 

States’’ for a credible-fear interview 

does not attach until the ‘‘officer 

determines that an alien . . . is 

inadmissible’’ on certain grounds, INA 

235(b)(1)(A)(ii), 8 U.S.C. 

1225(b)(1)(A)(ii); the officer cannot 

determine that an alien is inadmissible 

on certain grounds until he inspects the 

alien, see INA 235(a)(3), 8 U.S.C. 

1225(a)(3); and the officer’s duty to 

inspect the alien does not attach until 

the alien ‘‘arrives in’’ the United States, 

INA 235(a)(1), 8 U.S.C. 1225(a)(1). For 

these reasons, this rule’s references to 

the terms ‘‘arrival’’ and ‘‘arrive’’—like 

the references to ‘‘entry’’—require 

physical presence in the United 

States.23

Next, the Departments intended, and 

continue to intend, for the phrase 

‘‘attempt to enter’’ to encompass only 

those who are physically present in the 

United States. Aliens whom U.S. 

Customs and Border Protection (‘‘CBP’’) 

encounter at the physical border line of 

the United States and Mexico, who have 

not crossed the border line at the time 

of that encounter, have therefore not 

attempted to enter. This interpretation, 

while perhaps counterintuitive in light 

of a colloquial understanding of the 

word ‘‘attempt,’’ is nonetheless 

consistent with case law in the 

immigration context that has equated an 

‘‘attempt’’ to enter the United States 

with the actual crossing of the border. 

See, e.g., United States v. CorralesBeltran, 192 F.3d 1311, 1319–20 (9th 

Cir. 1999) (‘‘The attempt is in itself a 

substantive offense. It is the act of 

crossing the boundary line into the 

United States. It is not an attempt to 

commit an independently described 

offense, in the sense in which the word 

‘attempt’ is ordinarily used in criminal 

law. It is the actual re-entry into the 

United States.’’) (quoting Mills v. United 

States, 273 F. 625, 627 (9th Cir. 1921)). 

This interpretation of the word 

‘‘attempt’’ in the context of attempting 

‘‘to enter’’ is also consistent with the 

above-described meaning of the term 

‘‘entry.’’ Because ‘‘entry’’ requires more 

than mere physical presence, see Matter 

of Patel, 20 I&N Dec. at 370, an alien can 

physically cross the border of the 

United States and still be merely 

‘‘attempting’’ to enter the United States 

because, for example, he or she has not 

yet obtained freedom from official 

restraint. 

For these reasons, the Departments 

reiterate that ‘‘entry,’’ ‘‘attempted 

entry,’’ and ‘‘arrival’’ require the alien to 

be physically present in the United 

States, whether at a land border port of 

entry or elsewhere within the United 

States, and the Departments do not 

intend for this rule to apply 

extraterritorially to aliens who are not in 

the United States in any capacity. 

Therefore, the rule applies to aliens 

who, for example, were subject to 

metering before July 16, 2019, and, as a 

result, had not entered, attempted to 

enter, or arrived in the United States by 

that time. 

This rule establishes an additional 

condition, pursuant to the Attorney 

General’s and the Secretary’s authority 

at section 208(b)(2)(C) of the Act, 8 

U.S.C. 1158(b)(2)(C), to establish 

additional limitations and conditions on 

asylum eligibility 24 for asylum 

applicants at the southern land border 

who travel through a third country. 

Those particular applicants must apply 

for, and be denied, protection in a third 

country of transit in order to maintain 

eligibility for asylum in the United 

States at the southern land border. Thus, 

the rule is consistent with the language 

of the statute. Additionally, as noted in 

the IFR, the new bar established by the 

regulation does not modify an alien’s 

eligibility for withholding or deferral of 

removal proceedings, neither of which 

is a discretionary form of relief or 

protection. 84 FR at 33830. 

Moreover, ‘‘even if’’ an alien satisfies 

all governing requirements, ‘‘an actual 

grant of asylum is discretionary.’’ 

Thuraissigiam, 140 S. Ct. at 1965 n.4; 

see INA 208(b)(1)(A), 8 U.S.C. 

1158(b)(1)(A); INS v. Aguirre-Aguirre, 

526 U.S. 415, 420 (1999) (explaining 

that the ‘‘decision whether asylum 

should be granted to an eligible alien is 

committed to the Attorney General’s 

discretion’’). 

Comment: One commenter expressed 

concern that the IFR contradicts its own 

statutory authority because ‘‘arriving at 

the Southern Border does not constitute 

an exception [to asylum eligibility] on 

the statute and, as such, the rule 

contradicts its own authority.’’ 

Response: The Departments do not 

believe that the rule contradicts its own 

statutory authority. As noted in the IFR 

and explained above in Section III.C.1 of 

this preamble, the Act authorizes the 

Attorney General and the Secretary to 

establish further limitations and 

conditions on asylum eligibility beyond 

those expressly stated in the Act itself. 

INA 208(b)(2)(C), 8 U.S.C. 1158 

(b)(2)(C); 84 FR at 33832. Further, the 

82270 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

comment mischaracterizes the 

substance of this rule, which does not 

bar asylum eligibility on the basis of an 

alien having arrived at the southern 

land border. Rather, this rule’s asylum 

eligibility bar is based on an alien 

declining to apply for asylum in one of 

the first countries in which such relief 

may have been available, prior to 

reaching the southern land border— 

thereby undermining the purported 

urgency of the alien’s need for relief. 

d. Alleged Categorical Ban 

Comment: Numerous commenters 

expressed concern that the IFR would 

impose a ‘‘sweeping and categorical’’ 

ban on asylum. Commenters also 

expressed concern that the IFR conflicts 

with the specific circumstances in the 

INA under which applicants can be 

denied asylum because the rule presents 

a categorical bar to eligibility that does 

not leave room for individualized 

determinations. 

Response: The Departments would 

not characterize this rule as a categorical 

ban on asylum eligibility because the 

rule does not deny eligibility to every 

asylum applicant who presents himself 

or herself at the southern land border. 

Rather, the rule applies to a subset of 

aliens—those who pass through a third 

country or third countries en route to 

the United States and who do not seek 

protection in those countries before 

seeking protection in the United States. 

Those individuals who apply for such 

protection and are denied will not be 

barred from eligibility for asylum as a 

result of this rule once they reach the 

United States. Similarly, aliens who are 

victims of a severe form of trafficking in 

persons will not be barred from asylum 

eligibility resulting from their travel 

through a third country. Therefore, 

although the rule bars asylum eligibility 

for a certain subset of aliens reaching 

the southern land border, the rule does 

not ban asylum at the border. 

Further, as explained above in Section 

III.C.1, it is well within the 

Departments’ authority to establish new 

‘‘limitations and conditions’’ on asylum 

eligibility that are ‘‘consistent with’’ the 

asylum statute. INA 208(b)(2)(C), 8 

U.S.C. 1158(b)(2)(C). For example, in 

2000, Attorney General Janet Reno, 

relying on her authority under section 

208(b)(2)(C) of the Act, 8 U.S.C. 

1158(b)(2)(C), limited asylum eligibility 

based on a well-founded fear of future 

persecution when there is ‘‘a 

fundamental change in circumstances’’ 

or the ability of an alien to reasonably 

relocate within the alien’s country of 

nationality or last habitual residence, 

even where that alien had established 

he or she had suffered past persecution. 

See 65 FR at 76127; 8 CFR 

208.13(b)(1)(i)–(ii), 1208.13(b)(1)(i)–(ii). 

e. Credible Fear 

Comment: One commenter expressed 

concern that the IFR predetermines the 

outcome of the credible-fear 

determination process for all affected 

asylum seekers subject to expedited 

removal. The commenter stated that the 

rule would require the asylum officer to 

apply the higher ‘‘reasonable fear’’ 

standard and that the Act requires that 

all noncitizens subject to expedited 

removal who express a fear of return be 

processed for a credible-fear screening 

except in circumstances defined in the 

Act. 

Response: The Departments do not 

believe that the rule is inconsistent with 

expedited removal. As previously stated 

by the Departments, this rule does not 

change the standard as to whether an 

alien has demonstrated a credible fear of 

persecution for purposes of asylum (a 

significant possibility of eligibility for 

asylum), although the rule expands the 

scope of the inquiry in the process. 84 

FR at 33835–37. Credible-fear 

screenings for aliens subject to 

expedited removal are a determination 

of 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 

and such other facts as are known to the 

officer, that the alien could establish 

eligibility for asylum under section 1158 

of this title.’’ INA 235(b)(1)(B)(v), 8 

U.S.C. 1225(b)(1)(B)(v). As discussed 

above, section 208(b)(2)(C) of the Act, 8 

U.S.C. 1158(b)(2)(C), authorizes the 

Departments to establish additional 

limitations and conditions on asylum 

eligibility by regulation, and the 

Departments promulgated the IFR 

pursuant to this authority. See 84 FR at 

33833–34. The Act does not limit the 

credible-fear screening process to 

consideration of only those bars 

explicitly stated in the Act to the 

exclusion of any additional bars that the 

Departments established under section 

208(b)(2)(C) of the Act, 8 U.S.C. 

1158(b)(2)(C). In fact, it makes little 

sense to require an asylum officer to 

determine that an alien otherwise has a 

significant possibility of eligibility for 

asylum if the alien is in fact barred from 

eligibility for asylum in the first place. 

3. U.S. Obligations Under International 

Law 

Comment: Numerous commenters 

raised concerns that the IFR violates the 

United States’ obligations under 

international law. These comments 

cited the 1948 Universal Declaration of 

Human Rights (‘‘UDHR’’), the Refugee 

Convention, the Refugee Protocol, the 

International Covenant on Civil and 

Political Rights (‘‘ICCPR’’), the CAT, the 

Convention on the Rights of the Child 

(‘‘CRC’’), and customary international 

law. 

Commenters were concerned that the 

IFR violates the United States’ nonrefoulement obligations under 

international law, which the 

commenters generally explained as 

prohibiting the return of asylum seekers 

to a country where their lives or 

freedom would be threatened on 

account of a protected ground. 

Specifically, commenters were 

concerned that the IFR would act as a 

categorical bar to asylum and, therefore, 

that asylum seekers would only be able 

to apply for withholding of removal or 

protection under the CAT regulations— 

claims that require higher standards of 

proof. The commenters feared that, as a 

result, this more searching standard 

would lead to a higher likelihood of 

refoulement of persons with otherwise 

legitimate asylum claims. 

Similarly, other commenters stated 

that requiring asylum seekers to first 

apply for asylum in Mexico would 

effectively result in refoulement because 

Mexico does not have adequate asylum 

procedures. The commenters asserted 

that Mexico lacks adequate procedures, 

claiming, e.g., that the ‘‘asylum system 

in Mexico is overwhelmed, and 

applicants face long delays and unfair 

procedures. In addition, conditions may 

not be safe for many asylum seekers 

who are at risk of experiencing violence 

while living in Mexico and awaiting 

adjudication of their claims.’’ Likewise, 

the commenters’ assertions related to 

purported dangerous conditions in 

Mexico result in the commenters’ views 

that returning asylum seekers to Mexico 

would be considered a violation of the 

United States’ non-refoulement 

obligations. 

Several commenters pointed to 

statements or guidance issued by the 

United Nations High Commissioner for 

Refugees (‘‘UNHCR’’). For example, 

several organizations cited generally 

UNHCR’s statement of belief that ‘‘the 

rule excessively curtails the right to 

apply for asylum, jeopardizes the right 

to protection from refoulement, 

significantly raises the burden of proof 

on asylum seekers beyond the 

international legal standard, sharply 

curtails basic rights and freedoms of 

those who manage to meet it, and is not 

in line with international obligations.’’ 

UNHCR, UNHCR Deeply Concerned 

About New U.S. Asylum Restrictions, 

https://www.unhcr.org/en-us/news/ 

press/2019/7/5d2cdf114/unhcr-deeplyVerDate Sep<11>2014 21:06 Dec 16, 2020 Jkt 253001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\17DER4.SGM 17DER4
Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82271 

25The Departments also note various media 

outlets and writers have opined on living in or 

retiring to Mexico, which further suggests that the 

quality of life, including safe living conditions, 

continues to improve. See, e.g., Kathleen Peddicord, 

The Best Places to Retire in Mexico, U.S. News & 

World Report (Apr. 30, 2019), https://

money.usnews.com/money/retirement/babyboomers/articles/the-best-places-to-retire-inmexico; see also Liz Flynn, 20 Best Places to Live 

in Mexico, Money Inc., https://moneyinc.com/bestplaces-to-live-in-mexico/. In 2019, U.S. citizens 

traveled to Mexico almost 40 million times. See 

National Travel and Tourism Office, International 

Trade Administration, U.S. Dep’t of Commerce, 

U.S. Citizen Travel to International Regions (2019). 

The U.S. Embassy in Mexico City estimates there 

are more than 1.5 million U.S. citizens living in 

Mexico. See Wendy Fry, Americans Make Up 

Mexico’s Largest Demographic of Immigrants, San 

Diego Union Tribune (June 17, 2019). The 

Departments suggest that it strains credulity that so 

many Americans would move to Mexico if it were 

as unsafe as commenters alleged. 

concerned-new-asylum-restrictions.html 

(last visited Dec. 10, 2020). 

Others pointed to UNHCR guidance 

interpreting the Refugee Convention and 

the Refugee Protocol as providing that 

asylum seekers are not required to apply 

for protection in the first country where 

protection is available. For example, one 

commenter stated that ‘‘neither the 1951 

Convention nor the 1967 Protocol 

require[s] refugees to apply for 

protection in the first country available, 

nor do they require refugees to be 

returned to a country that was crossed 

in transit.’’ The commenter further 

averred that ‘‘UNHCR has stated that 

asylum should not be refused only on 

the basis that it could have been sought 

in another country, and it has made 

clear that an asylum seeker should not 

be required to seek protection in a 

country in which he or she has not 

established any relevant links.’’ 

Another organization was concerned 

that the IFR prevents asylum seekers 

from receiving a fair, full, and adequate 

trial or legal process, as required by the 

UDHR, the ICCPR, and the CRC. 

Response: As explained in the IFR, 

this rule is consistent with U.S. 

obligations under the Refugee Protocol, 

which incorporates Articles 2 through 

34 of the Refugee Convention, as well as 

U.S. obligations under Article 3 of the 

CAT. These treaties are not directly 

enforceable in U.S. law, but some of 

their obligations have been 

implemented by domestic legislation 

and implementing regulations. See INS 

v. Stevic, 467 U.S. 407, 428 & n.22 

(1984); 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.’’); Foreign Affairs Reform 

and Restructuring Act of 1998 

(‘‘FARRA’’), Public Law 105–277, sec. 

2242(b), Oct. 21, 1998, 112 Stat. 2681, 

2631–822 (8 U.S.C. 1231 note); 8 CFR 

208.16(b)–(c), 208.17, and 208.18; 

1208.16(b)–(c), 1208.17 and 1208.18. 

The United States has implemented 

the non-refoulement provisions of 

Article 33.1 of the Refugee Convention 

through the withholding of removal 

provisions at section 241(b)(3) of the 

Act, 8 U.S.C. 1231(b)(3), rather than 

through the asylum provisions at 

section 208 of the Act, 8 U.S.C. 1158. 

See INS v. Cardoza-Fonseca, 480 U.S. 

421, 429, 440–41 (1987); Matter of C–T– 

L, 25 I&N Dec. 341, 342–43 (BIA 2010). 

The Supreme Court has explained that 

asylum ‘‘does not correspond to Article 

33 of the Convention, but instead 

corresponds to Article 34,’’ which 

provides that contracting States ‘‘shall 

as far as possible facilitate the 

assimilation and naturalization of 

refugees.’’ Cardoza-Fonseca, 480 U.S. at 

441 (quotation marks omitted). Article 

34 ‘‘is precatory; it does not require the 

implementing authority actually to grant 

asylum to all those who are eligible.’’ Id. 

Because the rule does not affect 

statutory withholding of removal or 

protection under the CAT regulations, 

the rule is consistent with U.S. nonrefoulement obligations under the 1967 

Protocol (incorporating, inter alia, 

Article 33 of the Refugee Convention) 

and the CAT. See R–S–C, 869 F.3d at 

1188 n.11 (explaining that ‘‘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’’); 

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). 

The commenters are correct that 

neither the Refugee Convention nor the 

Refugee Protocol requires refugees to 

apply for protection in the first country 

available, but that observation is 

irrelevant to the legality of the rule. As 

explained above, the United States 

implements its non-refoulement 

obligations under the Refugee Protocol 

and the CAT through statutory 

withholding of removal and regulatory 

CAT protection. Because the rule bars 

asylum eligibility, and does not affect 

eligibility for statutory withholding of 

removal or withholding or deferral of 

removal under the CAT regulations, it 

does not conflict with U.S. obligations 

under the Refugee Protocol or the CAT. 

Commenters are further incorrect that 

Mexico does not provide adequate 

asylum procedures or a sufficiently safe 

environment for asylum seekers. 

First, regarding conditions in Mexico 

for asylum seekers who wait or pass 

through there, the anecdotal stories 

detailing violence in the country are 

generalized and may not necessarily 

indicate the presence of the kind of 

persecution that asylum was designed to 

address. Relatedly, the U.S. Ambassador 

to Mexico has explained that reports on 

localized violence in particular areas of 

Mexico do not indicate security 

conditions in the country as a whole. 

See Memorandum for the Attorney 

General and the Acting Secretary of 

Homeland Security, from Christopher 

Landau, United States Ambassador to 

Mexico, Re: Mexico Refugee System 4 

(Aug. 31, 2020) (‘‘Landau 

Memorandum’’). Mexico spans nearly 

7,600,000 square miles, and the 

Ambassador explained that discussions 

about conditions in Mexico oftentimes 

conflate the perils that refugees might 

face traversing across dangerous parts of 

Mexico en route to the United States 

with the ability to seek protection in a 

safe place in Mexico.25 Id. 

Additionally, UNHCR has 

documented a notable increase in 

asylum and refugee claims filed in 

Mexico—even during the ongoing 

COVID–19 pandemic—which strongly 

suggests that Mexico is an appropriate 

option for seeking refuge for those 

genuinely fleeing persecution. See, e.g., 

UNHCR, Despite Pandemic Restrictions, 

People Fleeing Violence and 

Persecution Continue to Seek Asylum in 

Mexico, https://www.unhcr.org/en-us/ 

news/briefing/2020/4/5ea7dc144/ 

despite-pandemic-restrictions-peoplefleeing-violence-persecutioncontinue.html (last visited Dec. 10, 

2020) (‘‘While a number of countries 

throughout Latin America and the rest 

of the world have closed their borders 

and restricted movement to contain the 

spread of coronavirus, Mexico has 

continued to register new asylum claims 

from people fleeing brutal violence and 

persecution, helping them find safety.’’). 

Asylum and refugee claims filed in 

Mexico increased 33 percent in the first 

3 months of 2020 compared to the same 

period in 2019, averaging almost 6,000 

per month. Id. 

These numbers align with historical 

trends of increasing asylum claims in 

Mexico annually. Asylum claims filed 

in Mexico rose by more than 103 

percent in 2018 over the previous year. 

UNHCR, Fact Sheet: Mexico 1 (Apr. 

2019), https://reporting.unhcr.org/sites/ 

default/files/UNHCR%20Factsheet

%20Mexico%20-%20April%202019.pdf 

(last visited Dec. 11, 2020). In 2019 

specifically, Mexico reports having 

received 70,609 refugee applications, 

which places Mexico eighth in the 

world for receipt of refugee 

82272 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

26Per the United Nations Office on Drugs and 

Crime Chart on Victims of Intentional Homicide, 

the murder rate in Mexico of 29.1/100,000 in 2018 

was lower than that in American cities such as St. 

Louis, Baltimore, Detroit, New Orleans, and Baton 

Rouge. See Fed. Bureau of Investigation, 2018: 

Crime in the United States (2018), https://

ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.- 

2018/tables/table-8/table-8.xls/view. More recently, 

the murder rate in Baltimore, America’s deadliest 

large city, was twice that of Mexico. Sean Kennedy, 

‘The Wire’ is Finished, but Baltimore Still Bleeds, 

The Wall St. J., https://www.wsj.com/articles/thewire-is-finished-but-baltimore-still-bleeds11581119104 (last visited Dec. 10, 2020); see also 

Landau Memorandum at 4 (‘‘Security conditions 

vary widely among (and within) the 32 Mexican 

States. Many reports of violence that reach the 

United States are often based on localized violence 

in particular areas of Mexico, and do not reflect 

conditions across the country as a whole—that 

would be like seizing upon crime statistics from 

particular metropolitan areas in the United States, 

such as the South Side of Chicago or Baltimore, and 

extrapolating them to the entire United States.’’). 

applications. See Landau Memorandum 

at 3. Overall, ‘‘[a]sylum requests have 

doubled in Mexico each year since 

2015.’’ Congressional Research Serv., 

Mexico’s Immigration Control Efforts 2 

(Feb. 19, 2020), https://fas.org/sgp/crs/ 

row/IF10215.pdf (last visited Dec. 11, 

2020). Moreover, some private 

organizations acknowledge that asylum 

claims in Mexico have recently 

‘‘skyrocket[ed],’’ that ‘‘Mexico has 

adopted a broader refugee definition 

than the U.S. and grants a higher 

percentage of asylum applications,’’ and 

that ‘‘Mexico may offer better options 

for certain refugees who cannot find 

international protection in the U.S.,’’ 

including for those ‘‘who are deciding 

where to seek asylum [i.e., between 

Mexico and the United States].’’ Asylum 

Access, Mexican Asylum System for 

U.S. Immigration Lawyers FAQ (Nov. 

2019), https://asylumaccess.org/wpcontent/uploads/2019/11/MexicanAsylum-FAQ-for-US-ImmigrationLawyers.pdf (last visited Dec. 11, 2020). 

Over the past decade, Mexico has 

substantially reformed its immigration 

and refugee laws, and in 2020, it more 

than doubled the budget for the 

Comisio ́n Mexicana de Ayuda a 

Refugiados (‘‘COMAR’’), the specialized 

federal agency that handles refugee and 

asylum issues. See Landau 

Memorandum at 2–3. The Mexican 

Constitution was amended in 2016 to 

include the specific right to asylum, see 

Mex. Const. art. 11, paragraph 2 

(providing in Spanish that every person 

has the right to seek and receive asylum 

and that recognition of refugee status 

and the granting of political asylum will 

be carried out in accordance with 

international treaties). Further, the 

grounds for seeking and obtaining 

refugee status under Mexican law are 

broader than the grounds under United 

States law. Individuals in Mexico may 

seek refugee status as a result of 

persecution in their home countries on 

the basis of race, religion, nationality, 

gender, membership in a social group, 

or political opinion. Compare 2011 Law 

for Refugees, Complementary 

Protection, and Political Asylum 

(‘‘LRCPPA’’), art. 13(I), with INA 

208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). 

However, individuals in Mexico may 

also seek refugee status based on 

generalized violence and violation of 

human rights. Id. art. 13(II). Prospective 

refugees may apply at one of seven 

COMAR offices in the country within 30 

days of entry into Mexico, with that 

time period subject to extension for 

good cause. See Landau Memorandum 

at 2. Prospective refugees may choose to 

apply for refugee status in any state, 

and, as a result, two-thirds of refugee 

applications are filed in Chiapas, a state 

that routinely ranks amongst the safest 

Mexican States. Id. at 4. Prospective 

refugees receive a work permit so that 

they are legally eligible to work and 

access public health services while their 

cases are pending, and Mexican law 

requires COMAR to process applications 

within 90 days. Id. at 2. 

Accordingly, the available data and 

other evidence simply do not support 

the conclusion that Mexico cannot be a 

safe and appropriate destination for 

individuals to seek asylum when they 

are fleeing from persecution. 

Finally, just as violence may occur in 

parts of the United States but 

individuals fleeing persecution may still 

consider the country relatively ‘‘safe’’ 

when compared to their countries of 

origin, localized episodes of violence in 

Mexico may not necessarily mean the 

country, as a whole, is unsafe for 

individuals fleeing persecution. In other 

words, the presence of local or regional 

crime exists in all countries, even those 

generally considered ‘‘safe,’’ but the 

presence of local or regional crime does 

not necessarily render those countries 

so dangerous that individuals fleeing 

persecution could not take refuge 

anywhere in the country.26

Further, the United States is not 

required to grant asylum to all 

applicants, and, as discussed above, 

asylum is ultimately discretionary. 

Thus, regardless of the general safety in 

Mexico, asylum claims remain subject 

to discretion. Moreover, over the years, 

the vast majority of asylum claims have 

been unsuccessful and unmeritorious 

under U.S. asylum law. See EOIR, 

Adjudication Statistics: Asylum 

Decision Rates (Oct. 13, 2020), https:// 

www.justice.gov/eoir/page/file/1248491/ 

download; see also Thuraissigiam, 140 

S. Ct. at 1966–67 (quoting various EOIR 

statistics demonstrating that ‘‘[t]he 

majority [of credible fear claims] have 

proved to be meritless’’ and explaining 

that fraudulent asylum claims are 

difficult to detect). 

A person seeking asylum for a reason 

supported by law (such as a fear of 

persecution) does not require a specific 

destination; he or she requires only a 

destination that provides refuge. Policy 

considerations accordingly support 

promulgation of a bar to asylum to 

reduce the number of those aliens who 

wish to use the asylum system to live 

(and potentially work) in the United 

States in particular, rather than as a way 

to avoid persecution in general. The 

Departments have concluded that the 

large number of ultimately denied 

asylum claims, as referenced above, is 

evidence that many aliens are seeking to 

use the asylum system for reasons other 

than seeking refuge from persecution on 

account of a protected ground. This 

final rule thus bars those aliens who— 

by neglecting to seek protection in 

countries in which they could have 

done so had they been legitimately 

fleeing persecution—are likely to be the 

sorts of aliens attempting to improperly 

use the system, thereby reducing the 

incidence of abuse of the asylum 

system. 

Comments concerning statements or 

guidance from UNHCR are misplaced. 

First, UNHCR’s interpretations of or 

recommendations regarding the Refugee 

Convention and Refugee Protocol are 

‘‘not binding on the Attorney General, 

the [Board of Immigration Appeals 

(‘BIA’)], or United States courts.’’ 

Aguirre-Aguirre, 526 U.S. at 427. 

‘‘Indeed, [UNHCR’s Handbook on 

Procedures and Criteria for Determining 

Refugee Status] itself disclaims such 

force, explaining that ‘the determination 

of refugee status under the 1951 

Convention and the 1967 Protocol . . . 

is incumbent upon the Contracting State 

in whose territory the refugee finds 

himself.’ ’’ Id. at 427–28, quoting 

Cardoza-Fonseca, 480 U.S. 14 439 n. 22. 

To the extent such guidance ‘‘may be 

a useful interpretative aid,’’ id. at 427, 

it does not govern how a Contracting 

State may exercise its prerogative to 

allow for asylum in its sole discretion. 

Second, UNHCR has recognized that 

refugees may be required to seek 

protection in other countries. In 

guidance issued in April 2018, UNHCR 

affirmed that ‘‘refugees do not have an 

unfettered right to choose their ‘asylum 

country,’ ’’ and that, even if their 

‘‘intentions . . . ought to be taken into 

account,’’ they ‘‘may be returned or 

transferred to a state where they had 

found, could have found or, pursuant to 

a formal agreement, can find 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82273 

27The Departments further note that the U.S. 

Mission in Mexico is ‘‘unaware of any pattern or 

practice of deporting prospective refugees to their 

countries of origin while their applications remain 

pending.’’ Landau Memorandum at 5. To the 

contrary, as explained by the U.S. Ambassador to 

Mexico, ‘‘Mexico introduced ‘complementary 

protection’ in 2011 precisely to provide protection 

from refoulement for individuals who may face 

danger in their home countries but do not satisfy 

the legal requirements for refugee status.’’ Id. 

international protection.’’ 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, at 1 available at 

https://www.refworld.org/pdfid/ 

5acb33ad4.pdf (last visited Dec. 10, 

2020). UNHCR explained that ‘‘[t]he 

1951 Convention relating to the Status 

of Refugees and its 1967 Protocol do not 

prohibit such return or transfer.’’ Id. 

Additionally, UNHCR has 

acknowledged the legitimacy of the 

‘‘safe third country concept’’ through 

which nations may deny protection ‘‘in 

cases where a person could have or can 

find protection in a third state either in 

relation to a specific individual case or 

pursuant to a formal bi- or multilateral 

agreement between states on the transfer 

of asylum-seekers.’’ Id. 

Comments arguing that the rule 

violates ICCPR, the UDHR, and the CRC 

are also incorrect. First, the ICCPR does 

not impose a non-refoulement 

obligation on state parties. The UDHR is 

a non-binding human rights instrument, 

not an international agreement, and thus 

it does not impose legal obligations on 

the United States. See Sosa v. AlvarezMachain, 542 U.S. 692, 728, 734–35 

(2004) (‘‘[T]he [UDHR] does not of its 

own force impose obligations as a 

matter of international law.’’). Similarly, 

the United States has neither ratified the 

CRC nor implemented its provisions in 

domestic law, and accordingly it does 

not give rise to legal obligations for the 

United States. See Martinez-Lopez v. 

Gonzales, 454 F.3d 500, 502 (5th Cir. 

2006) (‘‘The United States has not 

ratified the CRC, and, accordingly, the 

treaty cannot give rise to an individually 

enforceable right.’’). In addition, this 

rule does not implicate the two optional 

protocols of the CRC to which the 

United States is a party: (1) The 

Optional Protocol to the Convention on 

the Rights of the Child on the 

Involvement of Children in Armed 

Conflict and (2) the Optional Protocol to 

the Convention on the Rights of the 

Child on the Sale of Children, Child 

Prostitution and Child Pornography. See 

United Nations, Treaty Collection, 

Convention on the Rights of the Child, 

available at https://treaties.un.org/ 

Pages/ViewDetails.aspx?src=

TREATY&mtdsg_no=IV11&chapter=4&clang=_en (last visited 

Dec. 10, 2020); UNHCR, Country Profile 

for United States of America, available 

at http://indicators.ohchr.org/ (last 

visited Dec. 10, 2020). 

To the extent that some commenters 

make blanket assertions that the rule 

violates customary international law or 

is inconsistent with other non-binding 

international instruments, the 

commenters ignore the fact that the rule 

leaves the requirements for an ultimate 

grant of statutory withholding of 

removal or withholding or deferral of 

removal pursuant to the CAT 

regulations unchanged, and that aliens 

who choose not to apply for relief 

within a country that is a party to the 

relevant treaties through which they 

transit en route to the United States may 

still be considered for such protection. 

Comment: Three commenters cited 

examples of countries that are parties to 

the 1951 Convention, 1967 Protocol, or 

the CAT, yet nonetheless persecute 

individuals, according to allegations by 

the commenters. For example, one 

group stated that some countries that are 

parties to one or more of the relevant 

treaties punish expressions of atheism 

by death. 

Response: The rule does not require 

an asylum seeker to apply for protection 

in every country he or she crosses; it 

requires the individual to apply in at 

least one of the countries. Consequently, 

because the rule applies to aliens 

crossing the southern land border, 8 

CFR 208.13(c)(4) and 1208.13(c)(4), 

Mexico will necessarily be at least one 

of the transit countries. In other words, 

non-Mexican nationals crossing the 

southern land border must pass through 

Mexico. As explained in the IFR, 

Mexico is a party to the Refugee 

Convention, the Refugee Protocol, and 

the CAT, and it has an independent 

asylum system that provides protections 

to asylum applicants. 84 FR at 33839– 

40. Further, Mexico has endorsed the 

1984 Cartagena Declaration on Refugees 

and the non-binding 2018 Global 

Compact on Refugees. See Landau 

Memorandum at 1. Commenters did not 

generally allege that Mexico persecutes 

individuals notwithstanding its treaty 

obligations—and certainly did not allege 

that Mexico punishes atheists by death. 

Consequently, commenters’ concerns 

about anecdotes in individual countries 

that are neither transit countries 

themselves nor the sole country of 

transit are inapposite to the focus of the 

rule. Further, as noted above, aliens 

who choose not to apply for relief 

within a country that is a party to the 

relevant treaties and through which they 

transit en route to the United States may 

be considered for withholding of 

removal or deferral of removal in the 

United States. 

Comment: One group expressed 

concern that if an individual applies for 

and is denied asylum in a third country, 

the person will likely be returned to his 

or her home country and not be allowed 

to continue on to the United States. The 

group further opined that countries may 

deny valid asylum claims because they 

do not wish to absorb more migrants. 

Response: The Departments 

appreciate the commenting group’s 

concern that individuals with valid 

asylum claims should receive 

protection. The Departments believe the 

rule will provide such protection. The 

1951 Convention and the 1967 Protocol 

incorporate the principle of nonrefoulement—i.e., that countries cannot 

return individuals to countries where 

they more likely than not would be 

persecuted on account of a protected 

ground (with certain exceptions for 

individuals who fall within an 

exclusion or cessation ground). In other 

words, a third country, which, under 

the rule must be a party to the Refugee 

Convention or Refugee Protocol, cannot 

return an alien to his or her home 

country if doing so would violate the 

third country’s non-refoulement 

obligations. The third country, however, 

may return the alien to his or her home 

country following a determination that 

the alien is not eligible for nonrefoulement protection in that country. 

Finally, aliens who apply for and are 

denied protection in these countries are 

not barred from asylum eligibility under 

this rule. 

4. Violates the Refugee Act 

Comment: At least one commenter 

stated that the IFR violates the Refugee 

Act. The commenter argued that the rule 

conflicts with the non-refoulement 

principles of the Refugee Act because it 

will ‘‘inevitably return refugees to the 

countries where they will be 

persecuted.’’ 

Response: The rule does not violate 

the non-refoulement provisions of the 

Refugee Act, which were codified at 

former section 243(h) of the Act, 8 

U.S.C. 1253(h) (currently codified at 

section 241(b)(3) of the Act, 8 U.S.C. 

1231(b)(3)). Refugee Act, sec. 203(e); see 

also Stevic, 467 U.S. at 421–22. As 

stated above, the United States has 

implemented its non-refoulement 

obligations under the Refugee Protocol 

and the CAT through the withholding of 

removal provisions at section 241(b)(3) 

of the Act, 8 U.S.C. 1231(b)(3), and the 

CAT regulations.27 See CardozaFonseca, 480 U.S. at 440–41; FARRA, 

sec. 2242; 8 CFR 208.16(b)–(c), 208.17, 

82274 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

28UAC are children who have no lawful 

immigration status in the United States; who have 

not attained 18 years of age; and who have no 

parent or legal guardian in the United States, or no 

parent or legal guardian in the United States 

available to provide care and physical custody. 6 

U.S.C. 279(g)(2). 

29As with the claim that the IFR is contrary to 

the INA, the court in CAIR II did not discuss the 

claim that the IFR is contrary to the TVPRA. See 

CAIR II, --- F. Supp. 3d ---, 2020 WL 3542481, at 

*1. 

30The Departments recognize that smugglers may 

be able to charge higher fees to bring UAC to the 

United States than to other countries because of the 

perceived desirability of residing in the United 

States compared to other countries and, thus, that 

the rule may also act as a deterrent to child 

smuggling to the United States. The potential for 

reduced smuggling of children into the United 

208.18, 1208.16(b)–(c), 1208.17 and 

1208.18. The rule does not affect the 

withholding of removal process or 

standards. See INA 241(b)(3), 8 U.S.C. 

1231(b)(3); 8 CFR 208.16–.18, 1208.16– 

.18. In general, an alien who can 

demonstrate that he or she would more 

likely than not face persecution on 

account of a protected ground or torture 

would qualify for withholding or 

deferral of removal. Asylum under the 

immigration laws, on the other hand, is 

a discretionary form of relief subject to 

regulation and limitations by the 

Attorney General and the Secretary. See 

INA 208(b)(2)(C) and (d)(1), 8 U.S.C. 

1158(b)(2)(C) and (d)(1); Thuraissigiam, 

140 S. Ct. at 1965 n.4; see also Garcia 

v. Sessions, 856 F.3d 27, 40 (1st Cir. 

2017) (discussing the distinction 

between asylum and withholding of 

removal and explaining that 

‘‘withholding 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’’). 

5. Violates Trafficking Victims 

Protection Reauthorization Act of 2008 

Comment: Some commenters argued 

that the IFR violates the William 

Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008 

(‘‘TVPRA’’), Public Law 110–457, Dec. 

23, 2008, 122 Stat. 5044. These 

commenters noted that Congress has 

provided special protections for 

unaccompanied alien children 

(‘‘UAC’’) 28 that are designed to 

humanely treat and protect UAC due to 

their particular vulnerability to the risk 

of trafficking or other exploitations. For 

example, as most relevant to the rule, 

commenters noted that UAC have a 

statutory right to present their asylum 

applications to an asylum officer in a 

non-adversarial setting in the first 

instance. See TVPRA sec. 235(d)(7)(B) 

(codified at section 208(b)(3)(C) of the 

Act, 8 U.S.C. 1158(b)(3)(C)). In addition, 

the TVPRA exempted UAC from the 

ACA bar to asylum and the one-year 

filing deadline for applying for asylum. 

See TVPRA sec. 235(d)(7)(A) (codified 

at section 208(a)(2)(E) of the Act, 8 

U.S.C. 1158(a)(2)(E)). According to 

commenters, the IFR violates the 

protections provided by the TVPRA 

because it deems UAC ineligible for 

asylum if they transited through a third 

country and, in effect, removes the 

procedural protections implemented by 

the TVPRA. By barring asylum 

eligibility for UAC who transit through 

third countries without seeking asylum 

there, commenters argued, the IFR will 

effectively require asylum officers to 

automatically refer UAC to the 

immigration courts to pursue 

withholding of removal or protection 

under the CAT regulations. As a result, 

the commenters asserted, the IFR in 

practice would nullify the nonadversarial process that Congress 

specifically designed for UAC under the 

TVPRA by placing the UAC in 

adversarial immigration court 

proceedings. 

Response: This rule does not violate 

the TVPRA. As the commenters stated, 

the TVPRA enacted multiple procedures 

and protections specific to UAC that do 

not apply to other similarly situated 

asylum applicants. Congress, however, 

did not exempt UAC from all bars to 

asylum eligibility. As a result, UAC, like 

all asylum seekers, (1) may not apply for 

asylum if they previously applied for 

asylum and their application was 

denied (INA 208(a)(2)(C), 8 U.S.C. 

1158(a)(2)(C)), and (2) 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), or if they are 

subject to any additional bars 

implemented pursuant to the Attorney 

General’s and the 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). 

DHS and DOJ implement this rule 

pursuant to the authority at section 

208(b)(2)(C) of the Act. It is a valid 

restriction on asylum eligibility for all 

asylum applicants, including UAC. And 

this rule does not alter asylum officers’ 

jurisdiction over asylum applications 

from UAC. See INA 208(b)(3)(C), 8 

U.S.C. 1158(b)(3)(C). If UAC who are 

apprehended at the southern land 

border are placed in removal 

proceedings under section 240 of the 

Act and raise asylum claims, the 

immigration judges will refer the claims 

to asylum officers pursuant to the 

TVPRA, consistent with the asylum 

statute and procedures in place prior to 

the promulgation of this rule. See INA 

208(b)(3)(C), 8 U.S.C 1158(b)(3)(C). 

Those asylum officers will determine 

whether the UAC are barred from 

eligibility for asylum on the basis of this 

rule. This rule does not affect any other 

procedure or protection implemented by 

the TVPRA. 

Further, one district court has already 

indicated in an oral ruling from the 

bench that the IFR is likely consistent 

with the TVPRA. In CAIR I, discussed 

previously in Section III.C.2, the 

plaintiffs challenged the IFR in part on 

the grounds that it constituted a 

violation of the TVPRA’s substantive 

protections for UAC. Complaint at 43– 

45, CAIR I, --- F. Supp. 3d ---, 2019 WL 

3436501, ECF No. 1. In denying the 

plaintiffs’ request for a temporary 

restraining order, the court explained 

that it had ‘‘strong doubt as to plaintiffs’ 

claims relating to the TVPRA,’’ in part 

because ‘‘the Attorney General has long 

exercised broad discretion to determine 

which applicants should be granted 

asylum.’’ Id. at *3.29

Finally, the Departments note that, for 

UAC who are barred from asylum 

eligibility under this rule due to travel 

through a third country but who may 

still be eligible for withholding of 

removal under section 241 of the Act, 8 

U.S.C. 1231, or protection under the 

CAT regulations, the Departments are 

cognizant of the ‘‘special 

circumstances’’ often presented by UAC. 

Nevertheless, the INA does not require 

special protections for UAC beyond 

those already contained in the statute, 

and the INA does not require the 

provision of additional, extra-statutory 

protections—and certainly not beyond 

those which already exist. See, e.g., 

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. Like all 

aliens subject to the rule, UAC have the 

opportunity to apply for protection in 

one or more countries prior to their 

arrival in the United States. Further, 

UAC who are old enough to travel 

independently across hundreds or 

thousands of miles to the United States 

can logically also be expected to seek 

refuge in one of the countries transited 

if the UAC are genuinely seeking 

protection. UAC who are not old enough 

to travel independently necessarily 

must travel with adults, and again, there 

is no reason that adults cannot apply for 

protection in any country offering refuge 

if the adults and the UAC are genuinely 

seeking protection.30 In short, the 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82275 

States, however, works in favor of the rule, not 

against it. 

31Courts have held that aliens do not have a 

cognizable substantive due process interest in the 

receipt of asylum because asylum is a discretionary 

form of relief. See, e.g., Yuen Jin v. Mukasey, 538 

F.3d 143, 157 (2d Cir. 2008) (holding that ‘‘an alien 

who has already filed one asylum application, been 

adjudicated removable and ordered deported, and 

who has nevertheless remained in the country 

illegally for several years, does not have a liberty 

or property interest in a discretionary grant of 

asylum’’); Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st 

Cir. 2006) (‘‘Due process rights do not accrue to 

discretionary forms of relief, . . . and asylum is a 

discretionary form of relief.’’); Mudric v. U.S. Att’y 

Gen., 469 F.3d 94, 99 (3d Cir. 2006) (holding that 

an eight-year delay in processing the petitioner’s 

asylum application was not a constitutional 

violation because the petitioner ‘‘had no due 

process entitlement to the wholly discretionary 

benefits of which he and his mother were allegedly 

deprived’’); cf. Munoz v. Ashcroft, 339 F.3d 950, 

954 (9th Cir. 2003) (‘‘Since discretionary relief is a 

privilege created by Congress, denial of such relief 

cannot violate a substantive interest protected by 

the Due Process clause.’’). 

32Commenters alternatively used the terms 

LGBTQ, which refers to lesbian, gay, bisexual, 

transgender, and queer/questioning; LGBTQI, 

which further includes intersex; and LGBTQ+. For 

consistency, this final rule uses the acronym LGBT. 

Departments have not overlooked the 

special circumstances of UAC in 

crafting this rule, but those 

circumstances are insufficiently 

compelling to warrant a special 

exception for UAC from the rule’s 

application. 

6. Due Process 

Comment: Multiple organizations 

expressed concerns that the IFR violates 

the Fifth Amendment Due Process 

Clause because it allegedly establishes a 

predetermined outcome of the 

expedited removal process and presents 

a categorical bar on asylum for 

immigrants who enter the United States 

through the southern land border after 

transiting through a third country, 

effectively denying asylum seekers the 

right to be meaningfully heard on their 

asylum claims. One commenter further 

expressed that asylum seekers should 

have the right to appeal a credible-fear 

denial to an immigration judge. One 

commenter stated that it is 

inappropriate for the Departments to 

reduce the amount of process provided 

to asylum applicants in order to 

decrease the backlog of cases pending 

before EOIR. One commenter stated that 

it was unclear how the IFR would lessen 

the burden on immigration judges to 

timely and efficiently review claims in 

compliance with due process 

requirements because the rule required 

every affected applicant to file 

additional evidentiary material. 

Response: The rule does not violate 

the Fifth Amendment Due Process 

Clause.31 Like the other limitations on 

asylum set forth in the INA, the rule 

does not establish a predetermined 

outcome for the expedited removal 

process, and, as stated above, the rule is 

consistent with those limitations in the 

rest of section 208 of the Act, 8 U.S.C. 

1158. The Departments note that, under 

the rule, not every immigrant who 

enters the United States via the southern 

land border after transiting through a 

third country is ineligible for asylum in 

the United States, and the Departments 

provide a screening process to 

determine which asylum applicants are, 

and are not, subject to the regulatory 

third-country-transit bar. The rule 

applies to bar asylum eligibility for only 

those asylum seekers who transited 

through third countries without seeking 

protection in at least one of those 

countries. 

As previously stated by the 

Departments, one purpose of the rule is 

to ameliorate undue strains on the 

existing immigration system by 

deterring meritless or non-urgent 

asylum claims. See 84 FR at 33839; see 

also Thuraissigiam, 140 S. Ct. at 1967. 

The Departments had established this 

rule to more effectively separate out 

non-meritorious or non-urgent claims so 

that meritorious claims will be 

adjudicated more quickly and, in the 

process, the backlog would be reduced. 

In addition, the rule provides several 

procedural protections to ensure that 

meritorious claims receive a full and fair 

hearing before an immigration judge and 

that the bar impacts only aliens properly 

within the scope of the limitations in 8 

CFR 208.13(c)(4), 1208.13(c)(4). Aliens 

who are subject to the third-countrytransit bar, 8 CFR 208.13(c)(4), 

1208.13(c)(4), and who clear the 

reasonable-fear screening standard will 

be placed in proceedings before an 

immigration judge, just as aliens who 

clear the credible-fear standard would 

be. See 84 FR at 33838; see also 

Intervening Joint Final Rule. In those 

proceedings, the alien will have the 

opportunity to raise whether the asylum 

officer incorrectly identified the alien as 

subject to the bar to asylum. If an 

immigration judge determines that the 

asylum officer’s determination was 

incorrect, the alien will be able to apply 

for asylum, withholding of removal, and 

protection under the CAT regulations. 

See Intervening Joint Final Rule. Such 

aliens can appeal the immigration 

judge’s decision in these proceedings to 

the BIA and then seek review from a 

Federal court of appeals. Id.; see also 8 

CFR 1003.1(b)(9); INA 242, 8 U.S.C. 

1252. The Departments note that the 

standard established in the IFR helped 

ensure—in contrast to commenters’ 

concerns—that the outcome of the 

process delineated in the rule is not 

predetermined and that aliens 

potentially subject to the bar receive the 

full and fair hearing required by the Due 

Process Clause. Following public 

comment periods on the NPRM that 

introduced this rule and on the 

Intervening Joint Final Rule, the 

Departments published the Intervening 

Joint Final Rule to codify the 

Departments’ view that aliens with 

negative fear determinations that an 

Immigration Judge has vacated are better 

placed in the more limited asylum-andwithholding-only proceedings. See 8 

CFR 1208.31(g). No additional changes 

are necessary in this publication. 

Comment: Two groups predicted that 

the IFR will reduce pro bono legal 

representation available to applicants 

for asylum. The commenters predicted 

that lawyers will be required to spend 

additional time on each case because 

lawyers will need to brief issues related 

to the rule, file separate applications for 

spouses and children who will not 

receive derivative asylum, and take 

more time to present statutory 

withholding and CAT claims than they 

would for asylum claims. The groups 

argued that these requirements will 

reduce the number of clients each pro 

bono lawyer will be able to represent. 

Response: The Departments 

respectfully disagree with these 

predictions. First, the commenters 

assume that individuals will not apply 

for asylum in other countries and thus 

will be barred by the rule from receiving 

protection. Many individuals may apply 

for, and may receive, asylum elsewhere, 

which would reduce the burden on the 

immigration system and lead to fewer 

individuals requiring legal 

representation. Also, to the extent the 

rule deters frivolous asylum claims, pro 

bono attorneys will be able to devote 

their time to the fewer, meritorious 

claims remaining. 

7. Specific Populations 

a. Adults 

Comment: Several commenters raised 

concerns that the IFR could have a 

disproportionate impact on certain 

adults alleged to be particularly 

vulnerable, such as victims of domestic 

and gender-based violence; lesbian, gay, 

bisexual, and transgender (‘‘LGBT’’) 32

individuals; children; mothers; and 

women. 

Commenters stated that these 

individuals may be unable to effectively 

recount to asylum adjudicators the 

harms that they have suffered unless 

they feel safe and secure, which, 

according to the commenters, would not 

be possible in Mexico, Guatemala, or 

82276 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

33Comments regarding unaccompanied alien 

children are discussed further in section III.C.7.b, 

below. 

34Nevertheless, the ability to seek the relief of 

asylum does not necessarily mean that an alien’s 

claim will qualify for asylum, as, for example, not 

all alleged particular social groups are cognizable. 

See, e.g., Matter of L–E–A–, 27 I&N Dec. 581, 589 

(A.G. 2019) (providing that a particular social group 

must ‘‘share[ ] a common immutable characteristic, 

[be] defined with particularity, and [be] socially 

distinct’’ (citing Matter of M–E–V–G–, 26 I&N Dec. 

227, 237–38 (BIA 2014))). 

35The majority of publicly available data and 

statistics regarding violent crime in Mexico are 

generalized and not categorized by motive. A recent 

case study exploring crime patterns in Mexico City 

noted ‘‘in this regard, there has been no relevant 

evidence that provides a good measure of shortterm trends for a selected range of crimes 

experienced by individuals, including those 

reported to the police.’’ C.A. Pina Garcia, Exploring 

Crime Patterns in Mexico City, J. of Big Data 3 

(2019), available at https://

journalofbigdata.springeropen.com/track/pdf/ 

10.1186/s40537-019-0228-x (last visited Dec. 10, 

2020). Similarly, the U.S. Department of State’s 

Overseas Security Advisory Council recommends 

that analysis of crime data from Mexico should ‘‘use 

any reported national crimes statistics for trend 

analyses and not as statistical representation.’’ U.S. 

Dep’t of State, Mexico 2020 Crime & Safety Report: 

Hermosillo, June 24, 2020, available at https://

www.osac.gov/Content/Report/35043cbd-64a6- 

4e2e-b650-19027e7900a8 (last visited Dec. 11, 

2020). Another recent case study from Mexico 

noted that ‘‘institutions do not generate sufficient 

data and statistical information. In many cases, data 

is not disaggregated by sex or type of crime, and 

there is no existing information over the number of 

murders, cause of death or progress in the 

investigations.’’ Cato ́licas por el Derecho a Decidir 

& Comisio ́n Mexicana de Defensa y Promocio ́n de 

los Derechos Humanos, Femicide and Impunity in 

Mexico: A Context of Structural and Generalized 

Violence, available at https://www.ecoi.net/en/file/ 

local/1085985/1930_1343058124_cddandcmdpdhforthesession-mexico-cedaw52.pdf (last visited Dec. 

10, 2020). 

36Based on these considerations and others, as 

explained in this final rule, the Departments 

disagree with the Ninth Circuit’s conclusion that 

the Departments failed to consider evidence 

demonstrating that Mexico is not a safe option for 

asylum seekers, thereby ‘‘fail[ing] to consider an 

important aspect of the problem.’’ E. Bay Sanctuary 

Covenant, 964 F.3d at 850–51 (quoting Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto Ins. Co., 463 U.S. 29, 43 (1983) [hereinafter 

Motor Vehicle Mfrs.]). 

many countries that are parties to the 

relevant treaties. Commenters further 

explained that these populations face 

harm in Mexico, Central America, and 

other regions of the world, and alleged 

as a result that the United States cannot 

expect them to seek relief in third 

countries where they are equally at risk 

of harm as in their home countries. In 

other words, according to these 

commenters, the rule violates 

international and Federal law because it 

creates a bar to asylum without 

considering whether the country or 

countries through which an alien has 

transited would provide an individual 

with a procedure that provides a level 

of protection similar to the U.S. system. 

Commenters noted that other countries 

may not recognize certain harms as 

persecution for the purposes of asylum, 

though the same harms may qualify as 

persecution under the United States’ 

asylum laws. 

Regarding LGBT individuals 

specifically, commenters highlighted 

examples of discrimination and 

violence in Mexico and Central 

America. Multiple commenters stated 

that the United States has implicitly 

recognized the vulnerability of LGBT 

individuals by, as of July 2019, not 

returning LGBT individuals to Mexico 

under the MPP. See Anna Giaritelli, 

LGBT Asylum-Seekers Exempt from 

‘Remain in Mexico’ Policy and Can Stay 

in US, Washington Examiner, https://

www.washingtonexaminer.com/news/ 

lgbt-asylum-seekers-exempt-fromremain-in-mexico-policy-and-can-stayin-us (last visited Dec. 10, 2020) (noting 

that a U.S. official said that the United 

States was not returning LGBT 

individuals to Mexico because ‘‘that 

population would be at greater risk of 

personal harm if forced to remain in 

[Mexico]’’). 

Regarding children, including 

unaccompanied children specifically,33

commenters explained that children are 

frequently targeted by gangs and cartels 

for recruitment or for sexual violence. 

Such violence against children, 

according to commenters, is often 

underreported or not investigated, and 

child welfare programs in El Salvador, 

Guatemala, Honduras, and Mexico are 

allegedly underfunded and inaccessible. 

Response: This rule is a rule of equal 

application that does not bar any 

particular classes of asylum applicants 

from seeking relief due to the nature of 

the harm the applicant has suffered or 

the applicant’s particular race, religion, 

nationality, political opinion, or 

particular social group membership.34

DHS and DOJ further note that an alien 

may still seek protection in a third 

country even if that country has not 

previously recognized certain harms as 

persecution, or certain classes of victims 

as a qualifying particular social group. 

As noted in the IFR, asylum laws may 

evolve over time to respond to 

contemporary circumstances. 84 FR at 

33840 (explaining that European states 

in 1990 adopted the Dublin Regulation, 

which came into force in 1997, as a 

response to a mass fleeing of refugees 

and economic migrants fleeing 

communism at the end of the Cold War); 

see also Matter of A–B–, 27 I&N Dec. 

316, 318–19 (A.G. 2018) (summarizing 

the development of BIA case law 

regarding the interpretation of 

‘‘particular social group’’). And if an 

alien receives a final judgment denying 

protection in the third country, then the 

alien may present proof of such 

judgment and remain eligible to seek 

asylum in the United States. See 8 CFR 

208.13(c)(4)(i), 1208.13(c)(4)(i). 

Many of the comments questioning 

the safety of Mexico, Guatemala, and 

other countries focused on criminals 

who target aliens in transit who are 

perceived to be vulnerable. To the 

extent individuals are targets of crime 

by non-governmental actors, the 

Departments encourage them to seek aid 

from the government in the country in 

which the individuals have been 

targeted, rather than taking a long, 

perilous journey to the United States 

that would put them at risk of further 

victimization. To the extent commenters 

are concerned about the safety of the 

third countries that an alien may transit 

en route to the United States, the 

Departments note that if an alien 

believes that he or she would likely be 

subject to persecution on account of a 

protected ground or torture in the 

country that he or she transits en route 

to the United States, he or she may seek 

withholding of removal under section 

241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), 

or withholding of removal or deferral of 

removal under the CAT regulations to 

avoid the possibility of being returned 

to that country. See 84 FR at 33834. 

Thus, despite the assertions of 

commenters, the Departments disagree 

that the rule leaves such aliens without 

any possible protection in the United 

States. Further, as previously noted, 

statistics detailing violence in Mexico 

are generalized and may not necessarily 

indicate the presence of the kind of 

persecution that asylum was designed to 

address.35 Concentrated episodes of 

violence in Mexico do not mean the 

country, as a whole, is unsafe for 

individuals fleeing persecution.36

Indeed, recognition of a similar concept 

is already reflected in other areas of the 

immigration regulations: Asylum 

applications are to be denied if the 

applicant could ‘‘avoid future 

persecution by relocating to another part 

of the applicant’s country,’’ and, under 

the circumstances, it would ‘‘be 

reasonable to expect the applicant to do 

so.’’ 8 CFR 208.13(b)(1)(i)(B), 

1208.13(b)(1)(i)(B). 

Mexico is a large nation that is made 

up of 32 states, which span 

approximately 760,000 square miles, 

and it has a population of 

approximately 130 million people. 

Landau Memorandum at 4. As 

recognized by the United States 

ambassador to Mexico, security 

conditions may vary widely both across 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82277 

37As noted, supra, living conditions in Mexico 

overall are also improving, and the United Nation’s 

Human Development Report recently characterized 

Mexico as a country with ‘‘high human 

development’’ based off of the likelihood of having: 

a long and healthy life, access to knowledge and a 

decent standard of living. United Nations, Human 

Development Report: Mexico at 301, 2019, available 

at http://hdr.undp.org/sites/default/files/ 

hdr2019.pdf (last visited Dec. 11, 2020). 

and within Mexico. Id. Reports of 

violence often refer to localized violence 

and ‘‘do not reflect conditions across the 

county as a whole.’’ Id. Nearly all 

applications for protection in Mexico 

are presented in Chiapas, Mexico City, 

Veracruz, Tabasco, or Nuevo Leon, 

which ‘‘generally rank well on security 

issues based on Mexican government 

crime statistics,’’ and none of which are 

the subject of a U.S. Department of State 

‘‘Level 4’’ (Do Not Travel) advisory. Id. 

Furthermore, ‘‘[t]he United States 

Mission in Mexico is not aware of any 

pattern of violence targeted at potential 

refugees awaiting adjudication of their 

applications.’’ Id. at 5. 

Frequently, discussions about 

conditions in Mexico conflate the perils 

that refugees might face traversing 

dangerous parts of Mexico en route to 

the United States with the ability to seek 

protection in a safe place in Mexico. Id. 

For example, Chiapas, Mexico’s 

southernmost state along the border 

with Guatemala, ‘‘routinely ranks 

among the safest Mexican States by all 

metrics.’’ 37 Id. at 4. Notably, in Mexico, 

refugees have the right to seek 

protection in any state in which they are 

present. Id. For all these reasons, the 

Departments disagree with those 

commenters asserting that Mexico 

cannot provide safe refuge for any 

asylum seekers. 

Finally, DHS has no policy of 

categorically exempting LGBT 

individuals from the MPP. DHS has set 

forth categories of aliens who are not 

amenable to the MPP, and the LGBT 

community is not one of those 

categories. See CBP, Guiding Principles 

for Migrant Protection Protocols, Jan. 28, 

2019, available at https://www.cbp.gov/ 

sites/default/files/assets/documents/ 

2019-Jan/MPP%20Guiding

%20Principles%201-28-19.pdf. The 

decision to place amenable aliens in the 

MPP is made by immigration officers in 

the exercise of their prosecutorial 

discretion. 

Comment: One commenter claimed 

that the rule will force immigrants ‘‘into 

the shadows’’ and thus discourage them 

from reporting crimes. 

Response: The comment does not 

explain the basis for its assertion. It 

seems to assume that individuals who 

are barred from obtaining asylum will 

not apply for alternative forms of 

protection such as withholding or 

deferral of removal and instead opt to 

remain illegally in the United States. 

Further, the Departments note the 

potential availability of U nonimmigrant 

status for certain victims of crime. See 

INA 101(a)(15)(U), 214(p), 8 U.S.C. 

1101(a)(15)(U), 1184(p). The 

Departments believe that all victims of 

crime should come forward, and the 

Departments support policies to 

encourage the reporting of crime. The 

Departments decline, however, to reject 

sound legal policy in other areas of the 

law based on conjecture that some may 

respond by violating the law or 

declining to report crime. 

b. Accompanied and Unaccompanied 

Alien Children 

Comment: Many commenters 

expressed concern over the effect that 

the IFR would have on children, both 

accompanied and unaccompanied. 

Commenters stated that the IFR is 

inconsistent with the Act because 

Congress explicitly exempted UAC from 

the safe-third-country bar. INA 

208(a)(2)(E), 8 U.S.C. 1158(a)(2)(E). 

Commenters stated that, by exempting 

unaccompanied children from the safethird-country provision, Congress 

indicated its intent not to limit asylum 

eligibility for UAC in general—in 

contrast to the present rule. Other 

commenters stated that, even if the 

substance of this rule is consistent with 

the safe-third-country provision, the IFR 

does not adequately explain why the 

Departments omitted an exemption for 

UAC. 

Commenters also stated that the IFR 

will prevent many children from 

applying for asylum since children have 

no control over where their families take 

them or where their families decide to 

apply for asylum. 

Response: The Departments believe 

that the rule is consistent with the Act 

with respect to UAC. As explained in 

the IFR, the Departments recognize that 

UAC are exempt from two of the three 

statutory bars to applying for asylum: 

The ACA bar and the one-year filing 

deadline. INA 208(a)(2)(E), 8 U.S.C. 

1158(a)(2)(E). However, Congress 

declined to exempt UAC from other 

limitations on asylum applications and 

from asylum eligibility bars. For 

example, Congress did not exempt UAC 

from the bar on filing successive 

applications for asylum (INA 

208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C)), the 

various bars to asylum eligibility in 

section 208(b)(2)(A) of the Act, 8 U.S.C. 

1158(b)(2)(A), or the bars, like this one, 

established pursuant to the 

Departments’ authorities under section 

208(b)(2)(C) of the Act, 8 U.S.C. 

1158(b)(2)(C). 

Further, UAC, like others subject to 

the third-country-transit bar at 8 CFR 

208.13(c)(4) and 1208.13(c)(4), still will 

be considered for withholding of 

removal under section 241(b)(3) of the 

Act, 8 U.S.C. 1231(b)(3), and for 

protection under the CAT regulations. 

In addition, this rule may encourage 

families with children and UAC to 

avoid making a long, arduous, and 

extremely dangerous journey that brings 

with it a great risk of harm that could 

be avoided if they were to more readily 

avail themselves of legal protection from 

persecution or torture in a third country 

closer to the family’s or child’s country 

of origin. Further, Chiapas and others 

may represent safe places to settle in 

Mexico that would not require any 

refugees, including children and 

families, to traverse across dangerous 

parts of the country. Cf. Landau 

Memorandum at 4–5. The numbers of 

family units and UAC migrating to the 

United States have grown. In Fiscal Year 

2019, more than 60 percent of persons 

unlawfully crossing the southern land 

border were family units or UAC, 

whereas these classes of individuals 

made up less than 50 percent of such 

crossings in Fiscal Year 2018. Compare 

CBP, Southwest Border Migration FY 

2019, Nov. 14, 2019, available at https:// 

www.cbp.gov/newsroom/stats/swborder-migration/fy-2019, with CBP, 

Southwest Border Migration FY 2018, 

Nov. 19, 2018, available at https://

www.cbp.gov/newsroom/stats/swborder-migration/fy-2018; see also 

Apprehension, Processing, Care, and 

Custody of Alien Minors and 

Unaccompanied Alien Children, 84 FR 

44392, 44404 (Aug. 23, 2019) (reflecting 

significant increases in the number of 

family units apprehended at the 

southwest border since FY 2013). Also, 

in Fiscal Year 2019, CBP apprehended 

430,546 family units from El Salvador, 

Guatemala, and Honduras at the 

southern land border, up from 103,509 

such apprehensions in Fiscal Year 2018. 

Compare CBP, U.S. Border Patrol 

Southwest Border Apprehensions by 

Sector Fiscal Year 2019, Nov. 14, 2019, 

available at https://www.cbp.gov/ 

newsroom/stats/sw-border-migration/ 

usbp-sw-border-apprehensions-fy2019, 

with CBP, U.S. Border Patrol Southwest 

Border Apprehensions by Sector Fiscal 

Year 2018, Nov. 9, 2018, available at 

https://www.cbp.gov/newsroom/stats/ 

usbp-sw-border-apprehensions. The 

Departments note that families with 

children and UAC would be able to seek 

protection in the countries through 

which they transit, as the rule would 

only bar asylum for individuals who 

82278 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

pass through countries that are parties 

to the Refugee Convention or Refugee 

Protocol. Even if they do not seek such 

protection, there are still forms of 

protection available to them in the 

United States through withholding of 

removal under the Act and withholding 

or deferral of removal under the CAT 

regulations. As stated above, the rule 

does not deprive them of all possible 

protections in the United States. 

The rule does not violate the TVPRA 

because asylum officers retain initial 

jurisdiction over a UAC’s asylum 

application. This rule simply adds an 

additional bar for asylum officers to 

apply during their adjudication of a 

UAC’s asylum application. 

Finally, as discussed above, the 

Departments note that UAC who are 

barred from asylum eligibility under 

this rule due to travel through a third 

country may still be eligible for 

withholding of removal under section 

241 of the Act, 8 U.S.C. 1231, or 

protection under the CAT regulations. 

The Departments are cognizant of the 

circumstances often presented by UAC, 

as observed in section III.C.5, but the 

INA does not require special protections 

for UAC beyond those already contained 

in the statute or the provision of 

additional, extra-statutory protections. 

Moreover, the Departments already 

account for the circumstances of UAC, 

particularly in immigration proceedings. 

See, e.g., EOIR, Operating Policies and 

Procedures Memorandum 17–03: 

Guidelines for Immigration Court Cases 

Involving Juveniles, Including 

Unaccompanied Alien Children, Dec. 

20, 2017, available at https://

www.justice.gov/eoir/file/oppm17-03/ 

download. Like all aliens subject to the 

rule, UAC have the opportunity to apply 

for protection in multiple countries 

prior to their arrival in the United 

States. Further, a UAC who is old 

enough to travel independently across 

hundreds or thousands of miles to the 

United States can logically also be 

expected to seek refuge in one of the 

countries transited if the UAC is 

genuinely seeking protection. A UAC 

who is not old enough to travel 

independently necessarily must travel 

with an adult, and again, there is no 

reason that an adult cannot apply for 

protection in any country offering refuge 

if the adult and the UAC are genuinely 

seeking protection. In short, the 

Departments have not overlooked the 

special circumstances of UAC in 

crafting this rule, but those 

circumstances are insufficiently 

compelling to warrant a special 

exception for UAC from the rule’s 

application. 

8. Policy Considerations 

a. Nation’s Core Values 

Comment: Many commenters 

expressed opposition to the IFR because 

they claimed that its provisions depart 

from the core principles of the United 

States. Commenters remarked that the 

United States has historically welcomed 

those fleeing persecution and violence, 

and they claimed that the provision of 

protection and the securing of human 

rights for all people are core principles 

of the Nation. 

Similarly, some commenters stated 

that extending compassion to those in 

need is a core American value. Other 

commenters stated that immigration and 

diversity are themselves core principles 

of the United States. Still other 

commenters discussed American values 

in the context of providing 

humanitarian aid and leadership 

associated with these issues. 

Commenters also stated that the 

opportunity to flee one’s country and 

seek safety in another is a fundamental 

right protected by the United States. 

Commenters suggested that these core 

principles are memorialized in Senate 

reports, the inscription on the Statue of 

Liberty, the Declaration of 

Independence, the United States Code, 

and other various sources. 

Other comments were brief but 

asserted that the policy was ‘‘unAmerican,’’ ‘‘contrary to our nation’s 

core values,’’ and ‘‘un-Christian.’’ 

Response: Congress has expressly 

authorized the Departments to limit 

asylum eligibility. The United States’ 

non-refoulement obligations are 

reflected in the withholding provisions 

of the Act and the CAT regulations. 

Asylum remains available to aliens who 

have nowhere else to turn. For all the 

reasons discussed in the IFR and 

elsewhere in this final rule, the 

Departments believe this approach is 

sound, prudent policy that is warranted 

by the conditions at the southern land 

border and is consistent with the 

asylum statute. 

The rule has several objectives. First, 

it seeks to disincentivize aliens with 

meritless and non-urgent asylum claims 

from seeking entry to the United States. 

See 84 FR at 33831. The rule also seeks 

to reduce misuse of the global system of 

refugee protection, since aliens who 

traveled through a country that is 

obligated to provide non-refoulement 

protection as a party to the Refugee 

Convention or Refugee Protocol, but did 

not seek such protection, may have 

meritless claims and thus may be 

misusing the system. Id. Meritless or 

non-urgent claims undermine the 

humanitarian purposes of asylum, 

frustrate negotiations with other 

countries, and encourage heinous 

practices such as human smuggling and 

other abuses. Id. Accordingly, the rule 

also seeks to curb the practice of human 

smuggling and its tragic effects and to 

bolster negotiations on migration issues 

between the United States and foreign 

nations. Id. Finally, the rule makes a 

policy decision to direct relief toward 

those aliens who were unable to receive 

protection elsewhere and toward aliens 

subject to ‘‘severe forms of trafficking in 

persons,’’ defined at 8 CFR 214.11, so 

that those aliens are able to obtain 

asylum in the United States more 

quickly. Consequently, the rule bars 

asylum eligibility for aliens who might 

have been able to obtain protection in 

another country but who chose not to 

see such protection. Id. 

DHS and DOJ believe that the rule 

upholds the ultimate objectives of the 

commenters in the following ways. 

First, the rule facilitates effective 

processing of asylum claims so that 

aliens with the most urgent claims— 

those subject to extreme forms of human 

trafficking and those whose claims were 

denied in third countries—may be more 

quickly processed. The rule also 

decreases the incentive for human 

smuggling and other dangerous methods 

used to cross the border by tying the 

success of an alien’s asylum claim more 

closely to the merits of the underlying 

claim. Under this rule, only people with 

a legitimate need for asylum, unable to 

claim it elsewhere, will have the 

incentive to enter the United States to 

raise an asylum claim. Second, the rule 

encourages aliens fleeing persecution 

and violence to apply for asylum at the 

first available opportunity. Truly 

vulnerable aliens will accordingly be 

more likely to obtain protection from 

persecution, in the U.S. or a third 

country, sooner than in the absence of 

this final rule. 

DHS and DOJ remain vigilant in all 

efforts to ensure that aliens who face 

dire circumstances may seek protection. 

Notwithstanding the assistance that the 

United States provides to numerous 

countries across the globe, including 

Mexico, Guatemala, El Salvador, and 

Honduras, the U.S. government is 

committed to making the asylum 

process for aliens at the southern land 

border more effective. Currently, the 

immigration system faces severe strain, 

and asylum claims often take years to 

fully process. See 84 FR at 33831. This 

kind of system is ineffective for all 

parties involved, draining government 

resources to process and adjudicate 

these claims and prolonging final 

resolutions for aliens seeking protection. 

Id. This rule seeks to ameliorate this 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82279 

38This budget increase is especially noteworthy 

in light of concerns raised by immigration-related 

organizations and others that COMAR lacks 

sufficient resources. See, e.g., Congressional 

Research Serv., Mexico’s Immigration Control 

Efforts 2, Feb. 19, 2020, available at https://fas.org/ 

sgp/crs/row/IF10215.pdf (last visited Dec. 11, 2020) 

(noting that some experts have asserted that 

‘‘COMAR reportedly does not have sufficient 

budget or staff’’); Asylum Access, Mexican Asylum 

System for U.S. Immigration Lawyers FAQ, Nov. 

2019, available at https://asylumaccess.org/wpcontent/uploads/2019/11/Mexican-Asylum-FAQfor-US-Immigration-Lawyers.pdf (last visited Dec. 

11, 2020) (asserting that, although Mexico has seen 

a ‘‘substantial increase in refugees seeking asylum,’’ 

the Mexican government ‘‘has not provided a 

commensurate budgetary increase to process the 

applications’’). These reports from 2019 and early 

2020 necessarily do not take into account the effects 

of the recent doubling of COMAR’s budget. For this 

reason and others, the Departments consider the 

more recent description of the Mexican asylum 

system from the Ambassador of Mexico to be a more 

persuasive indication of conditions for those 

seeking refuge in the country. 

strain and inefficiency in order to assist 

aliens who most need our help. 

b. Humanitarian Purposes of Asylum 

Comment: Many comments invoked 

policy considerations, stating that the 

IFR is inhumane and contradicts the 

humanitarian purposes of asylum relief. 

Various commenters emphasized the 

humanitarian aspects of asylum in the 

United States—welcoming aliens and 

providing them with relief, protection, 

shelter, and other resources—and noted 

that those aspects of asylum distinguish 

the United States from other countries. 

Commenters argued that, without 

eligibility for asylum and the resources 

that follow, aliens would face 

uncertainty, financial burdens, stress, 

and violence. Leaving aliens to deal 

with such realities in the wake of the 

rule is inhumane, commenters claimed. 

Commenters also voiced concern that 

the IFR is inhumane because it allegedly 

prevents aliens who face violence and 

persecution from seeking protection, 

thereby subjecting them to continued 

violence in their home countries, or, 

alternatively, to violence in a third 

country in which they would have to 

apply for asylum under this rule. 

Specifically referencing Guatemala, 

Honduras, and El Salvador, commenters 

stated that aliens from those countries 

who are seeking asylum are often fleeing 

violence, if not death. One commenter 

stated that demand for drugs from 

countries like the United States fuels 

much of the violence in those countries. 

Commenters also alleged that the IFR 

has inhumane effects, including 

separating families, neglecting children, 

and subjecting women to abuse. One 

commenter stated that the IFR would 

lead to displaced aliens who are in 

neither their home country nor their 

preferred country. 

Overall, commenters were opposed to 

the IFR because they claimed it is 

antithetical to the purpose of asylum 

itself, as legitimate claims could be 

procedurally denied based on the fact 

that the alien had failed to apply for 

protection in a third country of transit. 

Some commenters urged humanitarian 

immigration reform, while most asked 

the Departments to withdraw the rule 

altogether. 

Response: DHS and DOJ disagree that 

the rule is antithetical to the 

humanitarian purposes of asylum. In 

contrast, this rule seeks to address the 

humanitarian crisis at the southern 

border and more effectively address the 

situation of aliens who urgently need 

protection, including those who are 

victims of severe trafficking and 

refugees who have no other option. 

The United States’ immigration 

system has experienced extreme strain 

over the past decade, and there are 

questions about the prevalence of 

fraudulent claims. See 84 FR at 33830– 

31. Despite the tripling of cases referred 

to DOJ for adjudication, which could 

take years to resolve, immigration 

judges grant only a small percentage of 

asylum requests adjudicated each year. 

Id. Further, the number of new cases has 

increased an average of 34 percent each 

year since Fiscal Year 2016, with a 

higher than 70 percent increase from 

Fiscal Year 2018 through Fiscal Year 

2019. EOIR, Adjudication Statistics: 

New Cases and Total Completions, Oct. 

13, 2020, available at https://

www.justice.gov/eoir/page/file/1060841/ 

download. There is no evidence that the 

record number of cases referred each 

year will slow in the future. In addition, 

the U.S. government continues to 

encounter massive human smuggling 

and its tragic effects. 84 FR at 33831. 

Through this rule, the Departments 

seek to provide humanitarian aid 

effectively for those aliens who need it 

the most. Thus, with limited exceptions, 

this rule limits asylum relief to those 

aliens who have no other option for 

relief and aliens who experience 

extreme forms of human trafficking, 

defined at 8 CFR 214.11. Id. 

Mexico is a party to, and has ratified 

the 1951 Refugee Convention, the 1967 

Refugee Protocol, and the CAT. See 

Landau Memorandum at 1. 

Additionally, Mexico is a signatory to, 

and has incorporated into its law, the 

1984 Cartagena Declaration on Refugees. 

Id. Over the past decade, as explained 

previously, Mexico has substantially 

reformed its immigration and refugee 

laws, and in 2020, it more than doubled 

the budget for COMAR.38 Id. at 2–3. The 

Mexican Constitution was amended in 

2016 to include the specific right to 

asylum. Id. at 2. Further, the grounds for 

seeking and obtaining refugee status 

under Mexican law are broader than the 

grounds under United States law. Id. 

Individuals in Mexico may seek refugee 

status not only as a result of persecution 

in their home countries on the basis of 

race, religion, nationality, gender, 

membership in a particular social group, 

or political opinion, but also on the 

basis of generalized violence or 

widespread violation of human rights. 

See id.; see also 2011 LRCPPA, arts. 

13(I), 13(II). Prospective refugees may 

apply at any COMAR office in the 

country within 30 days of entry into 

Mexico, subject to extension for good 

cause. Landau Memorandum at 2. 

Because prospective refugees may 

choose any state to apply for refugee 

status, two-thirds of refugee 

applications are filed in Chiapas, which 

is one of Mexico’s safest states. Id. at 4. 

And if conditions in a particular state 

happen to change, Mexico allows for the 

transfer of an asylum application from 

one state to another. See id. at 2. 

Further, prospective refugees are legally 

eligible to work and access public 

health services during the pendency of 

their cases, with COMAR under a legal 

obligation to process applications 

within 90 days. Id. The United States 

Ambassador to Mexico recently 

disputed allegations that Mexico 

improperly returns prospective refugees 

to their countries of origin, stating that 

he has received ‘‘repeated assurances 

[from] senior Mexican officials’’ that 

they recognize their obligation to offer 

protection to refugees. Id. at 5. In short, 

because Mexico is a party to 

international agreements regarding the 

treatment of refugees and has recently 

expanded its capacity to process asylum 

claims, aliens who truly need urgent 

protection may apply in Mexico upon 

arrival in that country, thereby 

hastening the process to ultimately 

obtain asylum relief. See 84 FR at 

33839–40; see also UNHCR, Universal 

Periodic Review 3rd Cycle, 31st Session: 

Mexico, National Report 2, 10–12 

(2018), available at https://

www.ohchr.org/EN/HRBodies/UPR/ 

Pages/MXindex.aspx (last visited Dec. 

10, 2020) (describing the protocols and 

‘‘protection mechanisms’ that Mexico 

has developed for asylum seekers and 

others, including measures specifically 

designed to ensure protection for 

children, provision of health care, and 

prevention of violence); see also 

UNHCR, Fact Sheet: Mexico (Apr. 2019), 

available at https://reporting.unhcr.org/ 

sites/default/files/UNHCR%20Factsheet

%20Mexico%20-%20April%202019.pdf 

82280 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

39 In recent years, the large influx of asylum 

applications filed with the immigration court 

system has outpaced EOIR’s adjudicatory capacity. 

For example, in Fiscal Year 2019, EOIR received a 

record a number of asylum applications (213,798), 

but issued final decisions in less than half the total 

number received (91,270). See EOIR, Adjudication 

Statistics: Total Asylum Applications, Oct. 13, 

2020, available at https://www.justice.gov/eoir/ 

page/file/1106366/download; EOIR, Adjudication 

Statistics: Asylum Decision Rates, Oct. 13, 2020, 

available at https://www.justice.gov/eoir/page/file/ 

1248491/download. 

40Asylum, once granted, creates a path to lawful 

permanent resident status and U.S. citizenship and 

affords a variety of other benefits. See, e.g., INA 

208(c)(1)(A), (C), 8 U.S.C. 1158(c)(1)(A), (C) (asylees 

cannot be removed subject to certain exceptions 

and can travel abroad with prior consent); INA 

208(b)(3), 8 U.S.C. 1158(b)(3) (allowing derivative 

asylum for an asylee’s spouse and unmarried 

children); INA 209(b), 8 U.S.C. 1159(b), 8 CFR 209.2 

(allowing the Attorney General or the Secretary to 

adjust the status of an asylee to that of a lawful 

permanent resident); 8 U.S.C. 1612(a)(2)(A) (asylees 

are eligible for certain Federal means-tested benefits 

on a preferential basis compared to most legal 

permanent residents); INA 316(a), 8 U.S.C. 1427(a) 

(describing requirements for the naturalization of 

lawful permanent residents). 

(last visited Dec. 11, 2020) (describing 

how Mexico has been transforming ‘‘its 

migration policy from a policy guided 

by security and control, to an approach 

which places greater emphasis on 

human rights, protection and regional 

cooperation’’); id. (‘‘Mexico has made 

important commitments to significantly 

increase its staff and activities to 

support the work of the Mexican 

authorities in processing an increased 

number of asylum claims and ensure 

protection of its Persons of Concern’’). 

Importantly, aliens who are ineligible 

for asylum in light of this rule may still 

apply for withholding of removal under 

the Act and withholding or deferral of 

removal under the CAT regulations in 

the United States. 84 FR at 33839–40. 

By decreasing the incentive for filing 

meritless claims and focusing relief on 

aliens who are unable to obtain 

protection elsewhere, DHS and DOJ seek 

to more effectively and more quickly 

provide humanitarian aid. Id. at 33839. 

Also through this rule, DHS and DOJ 

sought to curb the humanitarian crisis of 

human smuggling. See id. at 33830. The 

likelihood of a lengthy asylum process, 

throughout which asylum applicants 

may remain in the United States 

(typically free from detention and with 

work authorization) often incentivizes 

human smugglers and men, women, and 

children with non-urgent asylum claims 

to make the dangerous journey across 

the southern land border. Id. at 33831. 

By directing relief to aliens who 

legitimately fear persecution and to 

aliens with the most urgent asylum 

claims, the rule aims to reduce the 

incentives for those aliens who lack a 

legitimate fear of persecution and those 

aliens with non-urgent claims to engage 

in dangerous efforts to reach the United 

State, thereby reducing the 

humanitarian crisis. Id. at 33840. 

As previously stated, one overarching 

purpose of the rule is assisting in the 

resolution of the humanitarian crisis at 

the border. See id. at 33830; 

Thuraissigiam, 140 S. Ct. at 1967 

(noting the drastic increase in crediblefear claims at the border over the past 

decade, and that, in 2019, only 15 

percent of those found to have a 

credible fear received asylum). 

Accordingly, DHS and DOJ do not 

encourage the exacerbation of such 

circumstances; rather, this rule seeks to 

aid those populations by encouraging 

them to apply for asylum in the first safe 

country they encounter in order to most 

quickly obtain assistance and protection 

from those circumstances from which 

they fled, and by processing claims for 

those who most desperately need help. 

Accordingly, in contrast to the 

concerns raised in the comments, this 

rule works to more effectively and 

quickly provide humanitarian aid to 

aliens who most need it and reduce the 

humanitarian crisis of human 

smuggling. 

c. Failure To Address Root Causes of 

Migration 

Comment: Several commenters 

remarked that the IFR fails to address 

the root cause of requests for asylum— 

widespread violence from which aliens 

must flee. Many of those commenters 

accordingly opposed the rule and asked 

that the U.S. government consider 

addressing the root causes of migration 

instead. Those commenters stated that 

the United States, historically a global 

leader on such issues, is uniquely 

positioned to address the violence and 

other extreme circumstances that 

prompt aliens to migrate. Some 

commenters concluded that the IFR fails 

to stop the flow of migrants because the 

causes remained unaddressed. 

Some comments offered suggestions 

on how the United States could address 

the violence in Central America and 

Mexico: Expanding and investing in 

programming for families, assisting 

Mexico and other countries in 

expanding their capacities to process 

asylum claims, and bolstering 

protections for those aliens in the 

United States. 

Response: DHS and DOJ acknowledge 

the violence and crime that many 

individuals face and appreciate the 

suggestions from commenters regarding 

ways in which the United States may 

assist countries with high levels of 

violence and aliens fleeing such 

violence. The United States, through 

coordination and work among 

numerous agencies such as DOJ, DHS, 

the Department of State, and the United 

States Agency for International 

Development, provides robust 

assistance to individuals in need across 

the globe. See generally U.S. Dep’t of 

State, Foreign Assistance, https://

www.foreignassistance.gov. The 

Departments’ efforts to limit asylum 

eligibility to aliens in most need of 

asylum is complementary to these 

efforts. 

Further, the question of improving 

internal conditions in foreign countries 

is beyond the scope of this rulemaking. 

This rule addresses one component of 

the Nation’s immigration system— 

asylum relief—by reducing the current 

strain on the system so that meritorious 

asylum claims may be more effectively 

processed. See 84 FR at 33829–30. The 

rule does so by discouraging misuse of 

the asylum system, since aliens who 

travel through a country where 

protection was available but declined to 

seek protection may have meritless 

claims. Id. Such meritless claims 

undermine the humanitarian purposes 

of asylum, and encourage heinous 

practices such as human smuggling. 

Accordingly, the rule furthers policies 

likely to reduce the practice of human 

smuggling and its tragic effects. Id. 

Finally, the rule makes a policy decision 

to direct relief to aliens who were 

unable to receive protection elsewhere 

and aliens subject to ‘‘severe forms of 

trafficking in persons,’’ defined at 8 CFR 

214.11, enabling such aliens to more 

quickly obtain asylum relief in the 

United States because the number of 

asylum applicants referred to an 

immigration judge for consideration of 

their application is likely to better align 

with EOIR’s adjudicatory capacity.39

Instituting procedures that better align 

the availability of asylum with those 

applicants most in need of protection 

will help ensure those applicants have 

access to relief, and the benefits that 

flow from a grant of asylum,40 in a 

timely manner. Consequently, the rule 

bars aliens from being eligible for 

asylum who could have obtained 

protection in another country. Id. 

Based on these considerations, the 

Departments believe that the rule does 

address some causes of migration, such 

as the incentives for aliens with nonmeritorious or non-urgent claims to 

migrate. Id. at 33841, 33831. The rule 

aims to reduce these causes so that the 

United States may more effectively 

process claims for those with a genuine 

need, and the rule encourages those 

fleeing persecution to secure protection 

at the first available opportunity. See id. 

at 33839. Further, the rule continues the 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82281 

provision of asylum relief for certain 

aliens who are victims of human 

trafficking or aliens who were not 

granted protection after applying for 

asylum in a third country. Id. at 33840. 

Importantly, the rule also seeks to assist 

in negotiations with Mexico and other 

countries in order to adopt a more 

widespread effort to address issues 

related to migration, security, and 

humanitarian aid, including many of the 

issues identified in these comments. Id. 

In this way, the United States continues 

to lead international efforts to address 

these issues. 

The government continues to evaluate 

and assess ways to address these 

challenges, and this rule is one way 

through which the U.S. government is 

addressing the current challenges to the 

asylum process. 

d. Rule Will Encourage Illegal Border 

Crossings 

Comment: Many comments claimed 

that the IFR encourages border crossing 

without inspection, including human 

smuggling and the use of clandestine, 

dangerous routes. Comments claimed 

that the IFR effectively eliminated 

asylum relief at the border, thereby 

incentivizing border crossing without 

inspection. Several comments 

particularly disagreed with the rule’s 

statement that human smuggling created 

the current humanitarian crisis. The 

comments asserted, rather, that the 

practice of human smuggling was a 

consequence of the crisis, not a cause. 

The comments expressed that aliens 

resort to human smuggling in order to 

flee violence and persecution, which 

contradicts the rule’s assertion that 

aliens resort to human smuggling 

because it is widely available. Further, 

some comments claimed that the rule’s 

additional legal requirements 

incentivize human smuggling because 

aliens who are not able to pass the high 

threshold of ‘‘reasonable fear’’ review 

will risk crossing the border with 

smugglers rather than be returned to 

their countries. 

Commenters asserted that increased 

smuggling fees and increased death 

rates at the border demonstrate that 

people fleeing violence will risk their 

lives to reach safety, despite efforts such 

as the IFR that aim to deter border 

crossings. As a result, the commenters 

claimed, the IFR further exposes such 

aliens to increased danger. 

Response: DHS and DOJ disagree that 

the rule encourages border crossing 

without inspection through means such 

as human smuggling and the choice of 

more clandestine, dangerous routes. The 

Departments promulgated the rule in 

part to reduce the incentives to cross 

without inspection in an effort to reduce 

such practices. 

As explained in the IFR, the U.S. 

government continues to encounter 

human smuggling and its tragic effects. 

See 84 FR at 33830–31. Accordingly, 

this rule seeks to curb the humanitarian 

crisis of human smuggling. Id. at 33830. 

The likelihood of a lengthy asylum 

process, throughout which asylum 

applicants may remain in the United 

States free from detention and with 

work authorization, incentivizes aliens 

with meritless asylum claims to make 

the dangerous journey across the 

southern land border, often through the 

use of human smugglers. Id. at 33831. 

By focusing on the most urgent asylum 

claims, the rule aims to reduce the 

incentive for those with non-urgent 

claims to engage in risky efforts to evade 

inspection like the use of human 

smugglers or the use of dangerous routes 

to travel to the United States—thereby 

reducing the humanitarian crisis. Id. at 

33840. 

The IFR’s statement that it ‘‘seeks to 

curtail the humanitarian crisis created 

by human smugglers bringing men, 

women, and children across the 

southern land border,’’ id. at 33840, 

refers to the particular crisis of human 

smuggling and the associated 

consequences. The smuggling industry 

is largely financially motivated, and 

courts have recognized that U.S. 

immigration policy influences 

smuggling activity. See id. at 33841; see 

also E. Bay Sanctuary Covenant, 354 F. 

Supp. 3d at 1115 (‘‘Reviewing this 

[news article] with deference to the 

agencies’ views, it at least supports the 

inference that smugglers might similarly 

communicate the Rule’s potential 

relevant change in U.S. immigration 

policy, albeit in non-technical terms.’’). 

Further, the Departments believe that, 

once migrants learn of these changes to 

the United States’ asylum regulations, 

the incentive to come to the United 

States may be reduced, which in turn 

would decrease the demand for human 

smuggling. The rule’s focus on ensuring 

that meritorious asylum claims are more 

efficiently considered within the United 

States, by incentivizing individuals able 

to do so to apply for relief in other 

countries, will reduce the incentive for 

unlawful smuggling and evasion of the 

asylum system and, thus, help alleviate 

this humanitarian crisis. See 84 FR at 

33831. 

The Departments also note that the 

rule does not eliminate asylum relief at 

the border, as some commenters have 

claimed. See id. The Departments 

determined that aliens denied 

protection in a third country and 

victims of trafficking in persons, defined 

at 8 CFR 214.11, have the most urgent 

asylum claims, and the United States 

may more effectively process such 

claims in accordance with the 

provisions of the rule. See id. Far from 

eliminating asylum relief, the 

Departments seek to provide protection 

more effectively to those who most 

urgently need it. 

In contrast to the concerns raised in 

the comments claiming that the IFR 

causes or exacerbates these dangerous 

practices, promulgation of this rule 

reflects the Departments’ commitment 

to curbing the practices of human 

smuggling and other dangerous methods 

for crossing the border without 

inspection. 

Comment: One comment briefly 

expressed concern that the IFR would 

create more incentives for human 

smugglers to ‘‘find ways to get 

individuals through the border 

undetected, thereby increasing the 

number of individuals who have not 

received a background check.’’ The 

comment did not expressly state the 

reasoning underlying its concern with 

individuals who have bypassed 

background checks. 

Response: The Departments response 

to comments about increased incentives 

for human smuggling, above, address 

this comment’s concern. The 

Departments agree on the importance of 

background checks, as they protect the 

safety and security of the United States. 

The Departments disagree with the 

commenter’s prediction, however. The 

Departments expect that the rule will 

lead to fewer individuals illegally 

crossing the border and thus lead to 

fewer people residing in the U.S. 

without a background check. 

e. Disparate Impact on the Poor and 

Those Who Cannot Travel by Air or Sea 

Comment: Three commenters argued 

that the IFR discriminates against aliens 

who do not have the money to travel by 

air or sea (and thereby avoid crossing 

the southern land border) or aliens who 

are forced to flee suddenly and cannot 

wait for travel documents or a plane or 

boat reservation. One of the commenters 

asserted that this demonstrates that the 

Departments wish to eliminate the 

availability of asylum. 

Response: The Departments recognize 

that the rule does not impact aliens 

arriving by sea or air. However, as 

previously noted, this rule is intended 

to deal specifically with the crisis at the 

southern land border. If, as in the past, 

a crisis arises related to aliens arriving 

by sea or air, the Departments can 

reevaluate the scope of the rule’s 

82282 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

41The United States, for example, has previously 

taken steps expressly designed to address migration 

by sea. See Sale v. Haitian Ctrs. Council, Inc., 509 

U.S. 155, 160–61 (1993) (describing President 

Reagan’s suspension of entry for certain 

undocumented aliens from the high seas). 

42See Haitian Ctrs. Council, Inc., 509 U.S. at 161, 

163 (describing the effects of President Reagan’s 

suspension). 

application.41 Cf. City of Las Vegas v. 

Lujan, 891 F.2d 927, 935 (D.C. Cir. 1989) 

(permitting agencies to exercise 

discretion in addressing policy 

challenges, which could include an 

incremental ‘‘step’’ approach). 

The rule does not seek to penalize any 

asylum seeker based on wealth or 

exigent circumstances. In the past, U.S. 

asylum policy has impacted migrants 

traveling by land, air and sea, affecting 

individuals using a variety of methods 

to travel to the United States without 

regard to resources.42 As the 

Departments explained in the IFR, 84 

FR at 33829, the rule is aimed at 

addressing the crisis of aliens crossing 

the southern land border at historically 

high rates, which has in turn led to a 

historic backlog of asylum claims. The 

rule does not address the northern 

border because the United States and 

Canada operate on a shared framework 

of a cooperative agreement to process 

asylum claims. See 8 CFR 208.30(e)(6). 

The rule targets those who cross over 

the southern land border because, with 

the exception of Mexican nationals, 

these individuals necessarily transit 

through a third country en route to the 

United States. 

The Departments believe this 

approach is reasonable because, as 

explained previously, Mexico is a party 

to the relevant treaties and, as explained 

in the Landau Memorandum, Mexico 

has taken adequate steps to provide 

protection to asylum seekers. Thus, 

aliens passing through Mexico will 

necessarily have a chance to seek 

protection. Individuals travelling by air 

or sea, in contrast, may pass through no 

other countries at all en route to the 

United States, and hence might lack 

such an opportunity. Individuals 

traveling by air or sea may have boarded 

a vessel from their home country and 

arrived directly in the United States 

without a stopover, and thus without an 

opportunity to apply for protection, in 

a third country. Thus, the Departments 

applied this rule to the southern land 

border not to discriminate against or 

harm people who lack the means to 

arrive by air or sea, but to ensure that 

the rule applies to those aliens who will 

in fact have an opportunity to seek 

protection in a third country. 

f. Bad Motives—Racist Intent 

Comment: Many comments in 

opposition to the IFR claimed that it 

was motivated by racial animus, alleged 

that it has discriminatory effects, or 

included a discussion of both. Most 

comments stated that the rule reflected 

racist, xenophobic, or prejudiced 

attitudes, and other comments argued 

that the IFR impermissibly 

discriminates on the basis of race. 

Commenters alleged, for example, that 

the IFR demonstrated ‘‘blatant racism,’’ 

‘‘naked xenophobia,’’ and ‘‘thinly veiled 

white nationalism,’’ and accordingly 

described the rule as ‘‘immoral,’’ 

‘‘disgusting,’’ ‘‘abhorrent,’’ and 

‘‘sicken[ing].’’ Another comment 

specifically claimed that the IFR’s 

exclusive application to aliens at the 

southern land border violated equal 

protection principles under the Fifth 

Amendment by discriminating based on 

race, ethnicity, and national origin, 

rendering the rule unconstitutional. 

That same comment also claimed that 

the IFR would more heavily affect 

certain racial or ethnic groups than 

others, which courts consider when 

examining discriminatory purpose. 

Further, pointing to various statements 

and policies from the Administration, 

the comment alleged racial animus and 

a violation of the Constitution, leading 

the commenter to request the 

withdrawal of the IFR. 

Other commenters raised concerns 

with the alleged discriminatory effect of 

the IFR, explaining that it would have 

a disproportionately negative impact on 

people of color, particularly refugees 

from countries in Central America and 

Africa, and inherently discriminate 

against individuals who migrate through 

the southern land border, thereby 

effectively denying protection to asylum 

seekers from El Salvador, Guatemala, 

and Honduras. 

Response: The rule is neither 

motivated by racial animus nor 

promulgated with discriminatory intent. 

As explained in the IFR, 84 FR at 33829, 

the Departments promulgated the IFR in 

light of the following considerations. 

First, in order to reduce the immense 

strain on the immigration system as a 

whole, the IFR sought to disincentivize 

aliens with meritless asylum claims 

from seeking entry to the United States. 

See id. at 33830. The IFR sought to 

reduce misuse of the system, since 

aliens who travel through a country 

where protection is available, but who 

did not seek such protection, may have 

meritless claims and be misusing the 

system. Id. The IFR also sought to curb 

the practice of human smuggling and its 

tragic effects and to bolster negotiations 

on migration issues between the United 

States and foreign nations. Id. Finally, 

the rule made a policy choice to direct 

relief to aliens who are unable to receive 

protection elsewhere and aliens who are 

subject to ‘‘severe forms of trafficking in 

persons,’’ defined at 8 CFR 214.11, so 

that those aliens are able to obtain 

asylum relief in the United States more 

quickly. Consequently, the rule bars 

from eligibility for asylum those aliens 

who could have obtained protection in 

another country because they passed 

through countries that are obligated to 

provide protections to those facing 

persecution as party to the 1951 Refugee 

Convention or 1967 Protocol, but did 

not seek such protection. Id. 

None of these considerations is 

racially motivated, nor do these 

considerations constitute discriminatory 

purposes. Although the rule may 

impact, to a greater extent, groups 

specifically described in the comments, 

application of the rule relates to the 

geographic location and particular 

nature of the humanitarian crisis at the 

southern land border. As indicated 

previously, if a crisis arises related to 

aliens arriving by sea or air, the 

Departments can reconsider the scope of 

the rule’s application. The Departments 

do not promulgate the rule with a 

discriminatory purpose. 

9. Statutory Withholding of Removal 

and Protection Under the CAT 

Regulations in Lieu of Asylum 

Comment: Twenty-one organizations 

argued that it is not sufficient that 

individuals affected by the IFR may still 

apply for statutory withholding of 

removal or protection under the CAT 

regulations. These groups raised 

concerns that applicants will be subject 

to the higher burden of proof applicable 

to requests for withholding of removal 

under the Act and withholding or 

deferral of removal under the CAT 

regulations, and they expressed concern 

that applicants would lose access to 

benefits available to asylees but not to 

recipients of statutory withholding or 

protection under the CAT regulations. 

Sixteen organizations noted that, to 

prevail on a claim for statutory 

withholding or CAT protection, an 

applicant must meet a higher burden of 

proof than that needed to prevail on a 

claim for asylum—a ‘‘clear probability’’ 

of persecution or torture for withholding 

and CAT claims versus a ‘‘reasonable 

possibility’’ of persecution for asylum 

claims. For example, one commenter 

contended that ‘‘withholding of removal 

and relief under the Convention 

[A]gainst Torture, which the rule 

clarifies will still be available for those 

subject to this new asylum bar, are not 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82283 

43Unlike asylum, withholding of removal is a 

form of protection from removal, not relief. 

44Article 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. 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 CardozaFonseca, 480 U.S. at 429. 

adequate substitutes for asylum,’’ 

because ‘‘withholding of removal 

requires asylum-seekers to meet a more 

stringent standard of proof to establish 

their eligibility for this relief.’’ 43

Another commenter raised concerns 

that some aliens might be denied 

protection due to the higher burden of 

proof, stating that ‘‘[s]ubstituting the 

different procedural standards of 

protection from removal or withholding 

of removal for the existing procedural 

standards of asylum will not produce 

equivalent or better results. Instead, this 

change would result in the exclusion of 

many victims of serious persecution 

. . . from having a meaningful 

opportunity to present their cases and 

seek safety in the United States.’’ 

Response: To the extent commenters 

predict that certain individuals will 

wrongly be denied protection in the 

United States due to the rule, the 

Departments disagree. The Departments 

believe that it is vital that eligible 

persons be protected from removal to 

countries where they would likely face 

persecution on account of a protected 

ground or torture. The rule is consistent 

with that goal. Many commenters ignore 

the possibility that some individuals 

will obtain protection in countries other 

than the United States, and they ignore 

the benefits this result could entail. For 

example, numerous commenters stated 

that the long journey to the United 

States can inflict trauma on individuals 

who are fleeing persecution or torture. 

To the extent the rule results in 

individuals with meritorious claims 

obtaining protection sooner and with a 

shorter journey, it should help mitigate 

such trauma. Finally, it was Congress’s 

deliberate decision to establish a 

requirement that an alien show that it is 

more likely than not that his or her ‘‘life 

or freedom would be threatened’’ for 

statutory withholding of removal, INA 

241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A), 

which is a standard designed to meet 

U.S. obligations under the Refugee 

Protocol.44 See Cardoza-Fonseca, 480 

U.S. at 440–41; Stevic, 467 U.S. at 428 

(‘‘[I]t seems clear that Congress 

understood that refugee status alone did 

not require withholding of deportation, 

but rather, the alien had to satisfy the 

[‘more likely than not’] standard under 

§ 243(h)[.]’’). Commenters should 

address Congress regarding a change to 

this statutory standard. 

Comment: Numerous commenters 

noted that an asylee’s spouse and 

unmarried children under the age of 21 

receive derivative relief, a benefit 

missing from statutory withholding and 

CAT protection. One commenter argued 

that this distinction ‘‘means the 

difference between being reunited with 

one’s immediate family and living alone 

in a foreign country,’’ and means that 

‘‘new U.S. residents are deprived of a 

key factor in their eventual social and 

economic integration into, and 

independence in, the United States.’’ 

Another commenter raised concerns 

that this could lead to family 

separations: ‘‘One of the most damaging 

consequences of extending only 

withholding of removal or CAT 

protection to refugees is the potential for 

permanent family separation . . . . [A]n 

immigration judge may grant protection 

to a refugee parent but order a child 

deported.’’ 

Response: Those commenters who 

asserted that the rule will lead to family 

separations rely on several assumptions. 

First, they assume that individuals will 

choose to travel to the United States 

even when asylum relief may be 

unavailable if they have not first sought 

protection in a third country. 

Commenters offered no support for this 

assumption and did not consider the 

potential for individuals to apply for, 

and potentially receive, relief from a 

third country through which they transit 

prior to reaching the United States. In 

fact, the number of individuals applying 

for asylum in Mexico and other 

countries has increased in recent years. 

See 84 FR 33839–40. Second, 

commenters assumed that a third 

country will not grant individuals 

asylum and that applicants will not 

choose to stay in a third country. If the 

third country denies asylum, those 

individuals would not be subject to this 

rule’s bar. 

Finally, Congress reached the policy 

determination in enacting the INA and 

other immigration statutes over the 

years to decline to provide derivative 

relief for family members in the 

withholding- and deferral-of-removal 

contexts. Congress could update that 

policy if desired. Notably, however, the 

lack of derivative relief for family 

members outside of the asylum context 

does not impact the merits of the 

underlying question whether a 

particular applicant warrants the 

discretionary relief of asylum. See 

Thuraissigiam, 140 S. Ct. at 1965 n.4. 

Indeed, Congress knew that, by giving 

the Attorney General and the Secretary 

authority to promulgate additional 

limitations on eligibility for asylum, 

certain aliens other than those barred by 

statute would not be eligible to receive 

the secondary benefits associated with 

asylum, such as derivative asylum for 

family members. See R–S–C, 869 F.3d at 

1187 (observing that the INA’s 

‘‘delegation of authority means that 

Congress was prepared to accept 

administrative dilution of the asylum 

guarantee in § 1158(a)(1)’’). Congress has 

nonetheless declined to provide such 

benefits to aliens eligible only for 

withholding or deferral of removal, and 

commenters’ concerns are accordingly 

best addressed to Congress. 

Comment: Seven commenters 

complained that recipients of statutory 

withholding or CAT protection have no 

path to lawful permanent resident status 

or citizenship. Three of these groups 

also noted that these alternative forms of 

protection do not guarantee that 

individuals may remain permanently in 

the United States. Instead, DHS may 

remove recipients to another safe 

country. For example, one commenter 

complained that this ‘‘[l]imited and 

uncertain legal status further 

complicates an already challenging but 

near-universal early goal of treatment 

for torture and trauma survivors: 

restoring a sense of safety.’’ 

Response: Courts have rejected 

arguments that the Refugee Protocol, as 

implemented, requires that every 

qualified refugee receive asylum. For 

example, the Supreme Court has made 

clear that Article 34 of the Refugee 

Convention, which concerns the 

assimilation and naturalization of 

refugees, is precatory and not 

mandatory, and, accordingly, does not 

mandate that all refugees be granted 

asylum. See Cardoza-Fonseca, 480 U.S. 

at 441. Section 208 of the INA reflects 

that Article 34 is precatory and not 

mandatory, and accordingly does not 

provide that all refugees shall receive 

asylum. See id.; 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; Garcia, 856 F.3d at 

42; Ramirez-Mejia, 813 F.3d at 241. As 

noted above, Congress has also 

recognized the precatory nature of 

Article 34 by imposing various statutory 

exceptions and by authorizing the 

creation of new bars to asylum 

eligibility through regulation. 

Congress may revisit its decision to 

decline to provide derivative benefits to 

family members seeking protection 

other than asylum. But the 

consequences of other forms of 

82284 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

45 8 U.S.C. 1612(a)(1), (a)(2)(A)(iii), (a)(3) (SSI and 

SNAP); 8 U.S.C. 1612(b)(1), (b)(2)(A)(i)(III), (b)(3)(C) 

(Medicaid). 

46 8 U.S.C. 1612(b)(1), (b)(2)(A)(ii)(III), (b)(3)(A)– 

(B) (TANF and Social Security Block Grant); 8 

U.S.C. 1622(a), (b)(1)(C); 1621(c) (state public 

assistance). 

47The Departments acknowledge that the 

Supreme Court in Little Sisters did suggest that 

publishing a final rule after an IFR might not satisfy 

the APA if the IFR ‘‘failed to air the relevant issues 

with sufficient detail for [the public] to understand 

the Departments’ position.’’ 140 S. Ct. at 2384–85. 

The Departments do not believe that the 

circumstances of this rule’s promulgation indicate 

such a failed understanding. Many commenters 

may have disagreed with the Departments’ 

positions regarding the IFR, but the commenters 

nevertheless understood the substance of the 

Departments’ position. Moreover, the fact that the 

Departments have now considered over 1,800 

comments associated with the IFR—many of them 

detailed comments from organizations with a 

significant interest in asylum eligibility—before 

finalizing the rule suggests that there has been no 

prejudice in relying on the good cause exception 

and the foreign affairs exemption to publish the IFR 

without first providing for a comment period. See 

id. at 2385 (recognizing that the rule of prejudicial 

error applies to claims under the APA). 

protection such as withholding or 

deferral of removal does not impact the 

underlying merits of an applicant’s 

asylum claim. 

Comment: Two groups raised 

concerns that individuals denied 

asylum will lose access to numerous 

welfare and public assistance benefits. 

Groups also stated that recipients of 

statutory withholding and CAT 

protection face ‘‘significant barriers to 

education and work’’ compared to 

asylees and, ‘‘unlike asylum, refugees 

who secure withholding of removal 

must apply annually for work 

authorization.’’ Finally, two groups 

raised concerns that recipients of 

withholding and CAT protection do not 

have the same freedom to travel outside 

of the United States as asylees. 

Response: These comments ignore the 

ample public benefits available to 

recipients of statutory withholding. 

Specifically, recipients of statutory 

withholding are eligible for 

Supplemental Security Income (‘‘SSI’’), 

the Supplemental Nutrition Assistance 

Program (‘‘SNAP,’’ more commonly 

known as food stamps), and Medicaid 

for the first seven years after their 

applications are granted,45 and for 

Temporary Assistance to Needy 

Families (‘‘TANF’’) during the first five 

years after their applications are 

granted.46 Aliens other than asylees are 

also eligible for other benefits, such as 

benefits administered by the Office of 

Refugee Resettlement at the Department 

of Health and Human Services. See, e.g., 

Office of Refugee Resettlement, What 

We Do (Dec. 5, 2019), https://

www.acf.hhs.gov/orr/about/what-we-do 

(describing how the office provides 

rehabilitative, social, and legal services 

to certain aliens ‘‘regardless of 

immigration status’’). Further, the 

provision of Federal benefits to certain 

individuals is a policy determination 

within the purview of Congress, which 

made the deliberate decision to limit 

some of these benefits to asylees. See 

Personal Responsibility and Work 

Opportunity Reconciliation Act of 1996, 

Public Law 104–193, tit. IV, secs. 401– 

03, 431, Aug. 22, 1996, 110 Stat. 2105, 

2261–67, 2274 (codified at 8 U.S.C. 

1611–13, 1641). 

Finally, to the extent commenters 

raised concerns that recipients of 

statutory withholding and CAT 

protection must apply annually for work 

authorization and lack the freedom to 

travel outside of the United States 

generally afforded to asylees, neither of 

these benefits is mandated by U.S. law. 

D. Public Comments on Regulatory 

Requirements 

1. Administrative Procedure Act 

a. Notice and Comment Requirements 

Comment: A significant number of 

comments stated that the Departments 

violated the APA because the 

Departments did not provide the public 

with notice and an opportunity to 

comment on the IFR before its 

implementation and because the rule 

was not published 30 days before its 

effective date. See generally 5 U.S.C. 

553(b)–(d). Commenters asserted that, 

without notice and comment, they were 

unable to provide evidence that the rule 

is unlawful and that it will have 

numerous harmful effects. 

Commenters stated that the 

Departments’ reliance on the good cause 

exception and foreign affairs exemption 

to notice-and-comment rulemaking was 

improper. See 84 FR at 33840–42. 

Discussing the good cause exception, 

the commenters asserted that the 

Departments did not provide sufficient 

evidence that notice-and-comment 

rulemaking would result in a surge of 

asylum applicants. Regarding the 

foreign affairs exemption, the 

commenters stated that the Departments 

did not provide evidence that notice 

and comment rulemaking would 

negatively affect negotiations with the 

governments of Mexico, Guatemala, 

Honduras, or El Salvador. The 

commenters stated that, in fact, the IFR 

would have the opposite effect. 

According to one commenter, ‘‘[s]trongarming other nations, which are 

unprepared to deal with massive 

influxes of asylum seekers and who 

have institutional challenges of their 

own, into accepting returned asylum 

seekers will harm the United States’ 

diplomatic relationships with those 

countries, and contribute to further 

destabilization of the region.’’ 

Response: As explained above, the 

IFR complied with the APA’s noticeand-comment requirements, as recently 

considered by the Supreme Court in 

Little Sisters, 140 S. Ct. 2367. The Court 

held that an IFR followed by a final rule 

that satisfies the APA’s notice and 

comment requirements, 5 U.S.C. 553(b)– 

(d), is procedurally valid. See id. The 

Departments’ IFR complied with APA 

requirements, including providing 

notice and an opportunity for the public 

to comment. Subsequently, given this 

final rule, the rulemaking is 

procedurally valid, despite the fact that 

an NPRM was not issued and that 

reviewing courts have held that the 

Departments’ invocation of the good 

cause and foreign affairs exceptions to 

notice and comment was 

improper.47 Compare CAIR I, 2020 WL 

3542481, at *13–19 (holding that the 

Departments could not rely on the 

exception and exemption), with Little 

Sisters, 140 S. Ct. at 2386 n.14 

(‘‘Because we conclude that the IFRs’ 

request for comment satisfies the APA’s 

rulemaking requirements, we need not 

reach respondents’ additional argument 

that the Departments lacked good cause 

to promulgate the 2017 IFRs.’’). 

b. Arbitrary and Capricious 

Comment: Commenters stated that the 

Departments’ determinations underlying 

the IFR are arbitrary and capricious 

because the Departments failed to 

examine relevant data, adequately 

explain the policy change, or consider 

the significant impacts of the rule on 

asylum seekers and the community at 

large. Commenters argued that the 

Departments did not provide an 

adequate explanation for the assertion 

that an alien’s failure to seek protection 

in a third country relates to the 

probability that an asylum claim may be 

meritless. Commenters pointed to 

Federal appellate cases that held that 

applicants do not need to apply in the 

first country where asylum is available 

and that asylum applicants can have 

secondary motives for choosing to come 

to the United States that do not affect 

their asylum eligibility, such as relatives 

or friends in the United States who can 

help them as they pursue their claims. 

Further, the commenters asserted that 

the rule does not take into account the 

many reasons that asylum seekers might 

not apply for asylum in third countries 

such as Mexico or Guatemala, which, 

according to the commenters, feature 

dangerous conditions and lack asylum 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82285 

48The Departments note that the Ninth Circuit 

determined the rule to be arbitrary and capricious 

for three reasons. First, the court credited assertions 

from plaintiffs over contrary assertions from the 

Departments that aliens in Mexico have no safe 

options for asylum. See E. Bay Sanctuary Covenant, 

964 F.3d at 849–50. Second, the court found that 

the rule assumes, without justification, that aliens 

who wait to apply for asylum in the United States 

after traveling through intervening countries where 

they could have obtained protection are not 

credible. Id. at 852. Third, the court held that the 

rule failed to exempt UAC, though such exemption 

is not required by statute. Id. at 853–54. The 

Departments disagree with the Ninth Circuit on all 

three counts and understand the rule to be 

consistent with the provisions of section 208 of the 

Act, 8 U.S.C. 1158. Moreover, the court appears to 

have misunderstood the rule to some extent, as 

nothing in the rule relates to the credibility of an 

alien’s claim; instead, the rule takes the logical— 

and uncontroverted—position that an individual 

Continued 

infrastructure to process a significant 

amount of claims. 

Commenters also criticized the rule’s 

reliance on Matter of Pula, 19 I&N Dec. 

467. Commenters noted that although 

the BIA stated that an alien’s transit 

through third countries may be a 

negative discretionary factor depending 

on the factual circumstances, the BIA 

also has explained that the danger of 

persecution in the applicant’s home 

country ‘‘should generally outweigh all 

but the most egregious adverse factors.’’ 

Matter of Pula, 19 I&N Dec. at 474. 

Likewise, some commenters asserted 

that the IFR’s claim to advance 

humanitarian objectives is pre-textual 

because there is no plausible set of 

circumstances under which a rule 

prohibiting the vast majority of asylum 

seekers from obtaining asylum will 

serve the humanitarian purposes of 

asylum. In particular, some commenters 

asserted that, because transiting through 

a third country does not establish that 

an asylum claim is meritless, the rule 

will prohibit otherwise successful 

asylum claims. 

Commenters stated that the IFR did 

not provide evidence of how it will 

lower human smuggling and trafficking 

by reducing incentives, nor how it will 

affect the dire conditions that currently 

exist at the border. Further, the 

commenters stated that the IFR 

inadequately explained how it will 

reduce the administrative burden in 

immigration courts, since, under the 

rule, the courts will still adjudicate 

claims for withholding of removal and 

protection under the CAT regulations, 

as well as appeals of these asylum 

denials. In addition, commenters stated 

that the need to reduce the burden on 

immigration courts by implementing the 

IFR is exaggerated because DOJ has 

added a significant number of 

immigration judges and the largest 

increase in pending cases has come 

from the Attorney General’s decision 

that immigration judges did not have 

the authority to grant administrative 

closure. See Matter of Castro-Tum, 27 

I&N Dec. 271 (A.G. 2018). Commenters 

also stated that the IFR does not cite any 

evidence supporting the contention that 

many asylum seekers are economic 

migrants seeking to exploit U.S. asylum 

law. 

Next, commenters stated that the 

Departments provided misleading or 

inaccurate statistics in the IFR, asserting 

that denied asylum claims are not 

necessarily meritless; that the large 

majority of applicants appear for their 

hearings, particularly when represented 

by counsel; and that those affected by 

the IFR are granted asylum in ratios 

similar to asylum applicants as a whole. 

Other commenters stated that the 

Departments conflated meritless 

applications with denied applications, 

for which factors such as access to 

counsel and the particular immigration 

judge presiding over the case have major 

effects on the outcome. 

Response: The Departments believe 

that the determinations underlying the 

IFR are well-founded. Arbitrary and 

capricious review is limited and ‘‘highly 

deferential, presuming the agency action 

to be valid. . . .’’ Sacora v. Thomas, 

628 F.3d 1059, 1068 (9th Cir. 2010), 

citing Crickon v. Thomas, 579 F.3d 978, 

982 (9th Cir. 2009) (internal quotation 

marks omitted). 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.’’ Id. at 1069. The 

agency need only articulate ‘‘a rational 

connection between the facts found and 

the choice made.’’ Motor Vehicle Mfrs., 

463 U.S. at 43 (1983), quoting 

Burlington Truck Lines, Inc. v. United 

States, 371 U.S. 1568, 168 (1962). 

Considering the unprecedented 

increase of asylum applications and the 

backlog of pending cases, the 

Departments concluded that the IFR was 

necessary and well-founded. See EOIR, 

Adjudication Statistics: Total Asylum 

Applications (Oct. 13, 2020), https://

www.justice.gov/eoir/page/file/1106366/ 

download (demonstrating the increased 

receipt of asylum applications between 

Fiscal Years 2008 and 2019); see also 

EOIR, Adjudication Statistics: Pending 

Cases (Oct. 7, 2019), https://

www.justice.gov/eoir/page/file/1060836/ 

download (demonstrating the increased 

pending caseload between Fiscal Years 

2008 and 2019). Further, the period 

between the issuance of Matter of 

Avetisyan, 25 I&N Dec. 688 (BIA 2012), 

which Matter of Castro-Tum overturned, 

and the issuance of Matter of CastroTum coincided with a 127 percent 

increase in pending cases, despite 

relatively low numbers of new case 

receipts in several of the intervening 

years. Compare EOIR, Active and 

Inactive Pending Cases Between 

February 1, 2012 and May 17, 2018 (Jan. 

30, 2019), https://www.justice.gov/eoir/ 

page/file/1296536/download, with 

EOIR, New Cases and Total 

Completions (Oct. 13, 2020), https://

www.justice.gov/eoir/page/file/1139176/ 

download. In contrast, more recent 

increases to the pending caseload and 

the increased burden on the 

immigration courts have been driven by 

record numbers of new cases filed; this 

increase, is driven by continued 

influxes of illegal immigration, which is 

one of the primary issues the rule 

attempts to combat. See EOIR, Pending 

Cases, New Cases, and Total 

Completions (Oct. 13, 2020), https://

www.justice.gov/eoir/page/file/1242166/ 

download. In short, higher levels of 

illegal immigration—and not any 

decision by the Attorney General—have 

increased the burden on immigration 

courts, and it is appropriate for the 

Departments to consider that burden in 

promulgating this rule. 

Although commenters expressed 

various opinions regarding factors that 

may reduce or exacerbate the burden on 

immigration courts, the Departments 

ultimately believe that this final rule, 

together with other regulatory and 

policy efforts, best addresses the 

dramatic increase in asylum 

applications and the pending caseload 

currently experienced by the 

immigration courts. 

The Departments promulgated the IFR 

based on several considerations, 

including: (1) The need to reduce the 

incentive for aliens with meritless or 

non-urgent asylum claims to seek entry 

to the United States, thereby relieving 

stress on immigration enforcement and 

adjudicatory authorities; (2) the policy 

decision to direct relief to individuals 

who are unable to obtain protection 

from persecution elsewhere and 

individuals who are victims of a severe 

form of trafficking in persons, ensuring 

that these individuals can obtain relief 

more quickly; (3) the need to curtail 

human smuggling; (4) a desire to 

strengthen the United States’ negotiating 

power regarding migration issues in 

general and regarding related measures 

employed to control the flow of aliens 

in the United States; and (5) the urgent 

need to address the humanitarian and 

security crisis along the southern land 

border between the United States and 

Mexico. 84 FR at 33831, 33840, 33842. 

The IFR is reasonably related to each 

of these considerations and is, therefore, 

not arbitrary and capricious.48 As the 

82286 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

who is in genuine fear for his or her well-being will 

take refuge at the first available opportunity and 

that a failure to do so necessarily raises questions 

about the persuasiveness of the claim. Just as a 

criminal defendant’s subjective belief that an 

alternative to committing a crime is unavailable or 

undesirable will not support a necessity defense, 

United States v. Perdomo-Espana, 522 F.3d 983, 

988 (9th Cir. 2008), an alien’s subjective belief that 

refuge in another country is unavailable or less 

desirable than settling in the United States does not 

support the persuasiveness of that alien’s asylum 

claim. Similarly, the Department disagrees with the 

court’s conclusion that Mexico is not a safe country 

for any alien—as contradicted by the rising number 

of asylum claims filed in that country in recent 

years, which would be profoundly and inexplicably 

irrational behavior if applicants did not perceive it 

to be a potential safe country—or that pointing to 

crime in certain parts of Mexico means that the 

country as a whole is unsafe, any more than local 

crime rates or individual reports of crime in the 

United States mean that the entire United States is 

unsafe. Cf. Cece v. Holder, 733 F.3d 662, 679 (7th 

Cir. 2013) (Easterbrook, J. dissenting) (‘‘Crime may 

be rampant in Albania, but it is common in the 

United States too. People are forced into 

prostitution in Chicago . . . Must Canada grant 

asylum to young women who fear prostitution in 

the United States, or who dread the risk of violence 

in or near public-housing projects?’’). Further, the 

Departments disagree that every regulation 

restricting asylum eligibility must necessarily 

exempt UAC solely because they are UAC and even 

though such exemption is not required or 

contemplated by statute. Nevertheless, to the extent 

that the Ninth Circuit disagrees with the 

Departments’ position on this matter, the 

Departments have provided additional reasoning 

and evidence in this rulemaking to address such 

concerns. For example, the Landau Memorandum 

extensively discusses how conditions in Mexico are 

adequate to ensure that the country is in fact a safe 

option for asylum seekers. Further, the fact that 

Mexico is indeed a safe option helps substantiate 

the Departments’ conclusion that those aliens who 

nonetheless decline to apply for asylum in Mexico 

are likely travelling to the U.S. for reasons unrelated 

to a legitimate fear of persecution. See E. Bay 

Sanctuary Covenant, 964 F.3d at 859 (Miller, J., 

concurring in part) (observing that the ‘‘key factual 

premise’’ for the Departments’ conclusion is that 

Mexico is safe enough ‘‘that legitimate asylum 

seekers can reasonably be expected to apply for 

protection there’’). Finally, the Departments have 

discussed elsewhere in this final rule their 

consideration of the unique issues or special 

circumstances raised by UAC. They also note that 

Mexico has taken steps to ensure safe treatment of 

migrant children. See, e.g., U.N. Human Rights 

Council, Universal Periodic Review 3rd Cycle, 31st 

Session: Mexico, National Report 10–11 (2018), 

https://www.ohchr.org/EN/HRBodies/UPR/Pages/ 

MXindex.aspx (last visited Dec. 10, 2020) 

(describing Mexico’s adoption of protocols to care 

for ‘‘unaccompanied or separated child and 

adolescent migrants’’). The Departments have 

accordingly concluded that encouraging UAC to 

apply for asylum in Mexico through the 

promulgation of this rule will not jeopardize the 

wellbeing of UAC in a way that would warrant 

exempting UAC from the rule’s scope. 

49See, e.g., Tandia v. Gonzales, 437 F.3d 245, 249 

(2d Cir. 2006) (‘‘[The applicant’s] stay in France 

would therefore be relevant only to a finding that 

he had ‘firmly resettled’ in a third country before 

arriving in the United States.’’); Mamouzian v. 

Ashcroft, 390 F.3d 1129, 1138 & n.7 (9th Cir. 2004) 

(consideration of time in a third country is relevant 

only in determining whether alien was firmly 

resettled); Andriasian, 180 F.3d at 1047 (similar). 

IFR explains, aliens with nonmeritorious or non-urgent asylum 

claims will have less incentive to seek 

entry to the United States. Id. at 33840. 

Thus, there will be less incentive to rely 

on human smuggling if aliens cannot 

take advantage of lengthy delays in 

adjudicating their asylum claims in 

order to reside and work legally in the 

United States. Id. Fewer incentives to 

seek entry illegally will relieve stress on 

the adjudicatory authorities of both DHS 

and DOJ and on border enforcement. 

See 84 FR at 33831, 33840–41. Likewise, 

by ensuring that adjudicators are able to 

focus on the claims of aliens who have 

not been able to obtain relief in a third 

country, the rule focuses on the class of 

aliens who have no other country to 

turn to, making it easier for those 

adjudicators to fulfill the humanitarian 

nature of asylum relief. Id.; accord 

Tchitchui v. Holder, 657 F.3d 132, 137 

(2d Cir. 2011) (explaining that the ‘‘core 

regulatory purpose of asylum . . . is not 

to provide [aliens] with a broader choice 

of safe homelands, but rather, to protect 

refugees with nowhere else to turn’’ 

(internal quotation marks omitted)). 

Further, by limiting eligibility for 

asylum to aliens who transit Mexico and 

Central America without first seeking 

relief in one of the countries transited, 

the U.S. government is in a better 

position to negotiate a formal and 

lasting resolution to the humanitarian 

and security crisis along the southern 

land border with those countries. 84 FR 

at 33831, 33842. This shifts the 

responsibility to consider such claims to 

other countries within the region that 

are able to provide fair adjudications of 

requests for asylum. For example, 

Mexico’s status as a party to 

international agreements regarding 

refugee claims and its efforts to build its 

asylum system and robust procedures 

regarding such relief; and, as discussed 

above, the statistics regarding the influx 

of claims in that country, all support the 

conclusion that asylum in Mexico is a 

feasible alternative to relief in the 

United States. See id. at 33839; see also, 

e.g., UNHCR, Universal Periodic Review 

3rd Cycle, 31st Session: Mexico, 

National Report 10–12 (2018), https://

www.ohchr.org/EN/HRBodies/UPR/ 

Pages/MXindex.aspx; Landau 

Memorandum at 2–5. And, as 

previously explained, the presence of 

dangerous conditions in some parts of a 

country does not necessarily render the 

entire country unsafe and does not 

necessarily indicate the presence of the 

kind of persecution that asylum relief 

was designed to address. Concentrated 

episodes of violence do not mean a 

country, as a whole, is unsafe for 

individuals fleeing persecution. 

Regardless of living conditions, the 

United States is not required to grant 

asylum to applicants with claims that 

are not premised on a legitimate fear of 

persecution. 

For example, in a large country like 

Mexico, which span nearly 760,000 

square miles and has a population of 

approximately 130 million people, 

security conditions may vary widely 

both across and within the 32 Mexican 

states. U.S. Dep’t of State, U.S. Embassy 

and Consulates in Mexico, 

Memorandum from Christopher Landau, 

U.S. Ambassador to Mexico, on 

Mexico’s Refugee System (Aug. 31, 

2020). Reports of violence often refer to 

localized violence and ‘‘do not reflect 

conditions across the county as a 

whole.’’ Id. Nearly all applications for 

protection in Mexico are presented in 

either Chiapas, Mexico City, Veracruz, 

Tabasco, or Nuevo Leon, which 

‘‘generally rank well on security issues 

based on Mexican government crime 

statistics,’’ and none of which are the 

subject of a U.S. Department of State 

‘‘Level 4’’ (Do Not Travel) advisory. Id. 

Furthermore, ‘‘[t]he United States 

Mission in Mexico is not aware of any 

pattern of violence targeted at potential 

refugees awaiting adjudication of their 

applications.’’ Id. 

The Ambassador specified that 

discussions about conditions in Mexico 

often conflate the perils that refugees 

might face traversing across dangerous 

parts of Mexico en route to the United 

States with the ability to seek protection 

in a safe place in Mexico. Id. For 

example, Chiapas, Mexico’s 

southernmost state along the border 

with Guatemala, ‘‘routinely ranks 

among the safest Mexican States by all 

metrics.’’ Id. Notably, in Mexico, 

refugees have the right to seek 

protection in any state in which they are 

present. Id. 

In response to commenters’ concerns 

related to Federal appellate cases 

holding that applicants need not apply 

in the first country where asylum is 

available and that asylum applicants 

can have secondary motives for 

choosing to come to the United States 

that do not affect their asylum 

eligibility,49 the Departments note that 

those cases reflect the regulatory 

framework for the ACA and firm 

resettlement bars (INA 208(a)(2) and 

(b)(2)(A)(vi), 8 U.S.C. 1158(a)(2) and 

(b)(2)(A)(vi); 8 CFR 208.15 and 

208.30(e)(6)–(7), 1208.15 and 

1208.30(e)(6)–(7)) prior to the IFR, 

which did not include such a 

requirement. This rule modifies the 

regulatory framework pursuant to 

authority granted by Congress, so there 

is no tension between those cases and 

this rule, and removes references to 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82287 

50To this end, the Departments published an 

NPRM that, inter alia, proposed establishing 

additional factors for consideration when 

determining whether an alien merits the relief of 

asylum as a matter of discretion, 85 FR 36264, 

which has recently been finalized, Procedures for 

Asylum and Withholding of Removal; Credible Fear 

and Reasonable Fear Review, signed on December 

2, 2020. 

those amendments made in the 

Intervening Joint Final Rule. 

In addition to the policies articulated 

above, the rule advances several other 

policy goals consistent with the asylum 

statute, including focusing relief on 

applicants who have nowhere else to 

turn and encouraging other countries to 

provide protection. The rule relies on 

the judgment that a ‘‘decision not to 

apply for protection at the first available 

opportunity, and instead wait for the 

more preferred destination of the United 

States, raises questions about the 

validity and urgency of the alien’s claim 

and may mean that the claim is less 

likely to be successful.’’ 84 FR at 33839. 

The Departments believe these 

determinations are reasonable because 

immigration law has long supported 

factoring into the denial of asylum the 

fact that the applicant could have 

sought, but failed to seek, protection in 

a third country while in transit to the 

United States. See Matter of Pula, 19 

I&N Dec. at 473–74; see also Elzour v. 

Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 

2004) (‘‘The firm resettlement bar looks 

to whether permanent refuge was 

offered, not whether permanent status 

was ultimately obtained. Refugees may 

not flee to the United States and receive 

asylum after having unilaterally rejected 

safe haven in other nations in which 

they established significant ties along 

the way.’’) (emphasis in original); Haloci 

v. Att’y Gen., 266 F. App’x 145, 147 (3d 

Cir. 2008) (‘‘In addition, the IJ found 

that Haloci’s failure to seek asylum in 

Turkey or Holland, along with his 

admission that he had never considered 

any final destination other than the 

United States, further undercut his 

alleged fear. The record supports the IJ’s 

findings.’’); Farbakhsh v. INS, 20 F.3d 

877, 882 (8th Cir. 1994) (‘‘We also hold 

that the Board did not abuse its 

discretion in denying petitioner’s 

application for asylum. Petitioner 

passed through several countries 

(Turkey, Italy, Spain, Portugal, Canada) 

en route to the United States; in Spain 

and Canada orderly refugee procedures 

were in fact available to him. He had 

applied for refugee status in Spain, and 

Canada had granted him temporary 

resident status and one year to apply for 

asylum.’’). This rule establishes that an 

alien who failed to request asylum in a 

country where it was available is not 

eligible for asylum in the United States. 

Further, even though the Board in Pula 

indicated that a range of factors is 

relevant to evaluating discretionary 

asylum relief under the general statutory 

asylum provision, the Act also 

authorizes the establishment of 

additional limitations to asylum 

eligibility by regulation—beyond those 

embedded in the statute. See INA 

208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C).50

This rule uses that authority to establish 

one of the factors specified as relevant 

in Pula as the foundation of a new 

asylum bar. This rule’s focus on the 

third-country-transit factor, considered 

as just one of many factors in Pula, is 

justified, as explained above, by the 

increased numbers and changed nature 

of asylum claims in recent years. 

Comment: Several commenters 

asserted that the IFR will not alleviate 

the strain on the Nation’s immigration 

system. Some commentators argued that 

immigration judges will have more work 

as a result of the rule because they will 

have to inquire whether the applicant 

satisfied the rule. Others predicted that 

immigration judges will adjudicate the 

same number of cases because 

individuals barred from asylum 

eligibility will instead apply for 

statutory withholding or protection 

under the CAT regulations. One 

commenter opined that the backlog of 

immigration cases is caused by the 

Administration’s own policies, such as 

‘‘zero tolerance,’’ and the solution is to 

less vigorously enforce immigration 

laws. 

Response: The Departments disagree 

with these predictions. The commenters 

assume that individuals will not apply 

for asylum in other countries. Many 

individuals may apply for, and may 

receive, asylum elsewhere, which 

would reduce the burden on the 

immigration system. Also, if the rule 

deters meritless or frivolous 

applications, it will reduce the burden 

on the immigration system. 

In addition, the interim final rule 

would reduce the burden on the 

immigration system even if every alien 

who would have applied for asylum 

under the regulations in place prior to 

the IFR continues to seek statutory 

withholding of removal or protection 

under the CAT regulations under the 

provisions of the IFR. Following 

publication of the Intervening Joint 

Final Rule, the claims of those 

individuals who are subject to the thirdcountry-transit bar would initially be 

reviewed to determine whether the 

individuals have a reasonable 

possibility of persecution or torture, 

rather than a credible fear. 8 CFR 

208.30(e)(5)(iii). Reasonable-fear review 

is a higher threshold than the ‘‘credible 

fear’’ standard that would have 

previously applied. Compare 8 CFR 

208.30(e)(2) (providing that an alien has 

a credible fear if the alien establishes a 

‘‘significant possibility’’ of persecution 

or torture), with 8 CFR 208.31(c) 

(providing that an alien has a reasonable 

fear if the alien establishes a 

‘‘reasonable possibility’’ of persecution 

or torture). As discussed in the 

Intervening Joint Final Rule, the 

Departments believe that fewer nonmeritorious claims will be referred to an 

immigration judge for adjudication due 

to the higher standard applicable in 

reasonable-fear reviews, increasing 

efficiencies both for the immigration 

courts and for aliens who are eligible for 

protection. Notably, however, this final 

rule does not include those changes due 

to the Intervening Joint Final Rule. 

The Departments disagree with 

suggestions to stop or to reduce 

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. 

Comment: One group asserted that the 

rule seeks to deter asylum claims, and 

that this is not a legally permissible 

basis for a rule. 

Response: The Departments 

encourage those facing persecution or 

torture to seek protection. The rule does 

not seek to deter any such individual 

from applying for or receiving 

protection—in fact, it encourages them 

to seek protection at the first available 

opportunity. The rule seeks to deter 

those who would abuse the immigration 

system by filing meritless, frivolous, or 

non-urgent asylum claims as a means to 

obtain immigration benefits to which 

they would not otherwise be entitled. 

Comment: Some commenters 

challenged the Departments’ statistics 

indicating that many asylum applicants 

do not appear for their immigration 

court hearings and that immigration 

judges deny most asylum claims. 

82288 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

51See also Cement Kiln Recycling Coal. v. EPA, 

255 F.3d 855, 869 (D.C. Cir. 2001) (‘‘The statute 

requires that the agency conduct the relevant 

analysis or certify ‘no impact’ for those small 

businesses that are ‘subject to’ the regulation, that 

is, those to which the regulation ‘will apply’. . . . 

The rule will doubtless have economic impacts in 

many sectors of the economy. But to require an 

agency to assess the impact on all of the nation’s 

small businesses possibly affected by a rule would 

be to convert every rulemaking process into a 

massive exercise in economic modeling, an 

approach we have already rejected.’’ (citing MidTex, 773 F.2d 327 at 343)); White Eagle Co-op Ass’n 

v. Conner, 553 F.3d 467, 480 (7th Cir. 2009) 

(‘‘[S]mall entities directly regulated by the proposed 

[rulemaking]—whose conduct is circumscribed or 

mandated—may bring a challenge to the RFA 

analysis or certification of an agency. . . . 

However, when the regulation reaches small 

entities only indirectly, they do not have standing 

to bring an RFA challenge.’’). 

Response: The Departments reiterate 

the statistics and analysis provided in 

the IFR. See id. Some comments may be 

based on erroneous readings of the data. 

For example, one commenter cited the 

DHS Annual Flow Report on Refugees 

and Asylees from 2017 as showing that 

92 percent of asylum applicants obtain 

lawful permanent resident status. DHS, 

Annual Flow Report: Refugees and 

Asylees: 2017 (Mar. 2019), https://

www.dhs.gov/sites/default/files/ 

publications/Refugees_

Asylees_2017.pdf. The report, however, 

concerns adjustment rates for 

individuals who are already granted 

affirmative asylum, not applicants for 

asylum. Id. at 9. 

2. Executive Order 13132 

Comment: One commenter stated that 

the IFR will harm the States because: (1) 

The States’ economies are aided by 

asylees and asylum seekers, (2) harm 

caused to asylum seekers will result in 

increased demand on State health 

programs and resources, (3) 

organizations in the States will have to 

divert their resources, and (4) the IFR 

harms States’ interest in family unity. 

As a result, the commenter stated, DHS 

and DOJ failed to analyze these impacts 

or appropriately consult with the States 

prior to the rule’s implementation. 

Response: The rule does not have 

federalism implications because it does 

not have substantial direct effects on the 

States, on the relationship between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. DHS and DOJ do 

not purport to directly regulate who 

may receive State benefits or how the 

States or organizations within the States 

allocate resources for the public. To the 

extent the commenter alleges that the 

rule will have a financial impact on the 

States, such assertion is purely 

speculative. Finally, any choice by the 

States to increase public assistance 

payments to aliens affected by the rule 

is a policy choice by States, not a result 

compelled by the rule. 

3. Paperwork Reduction Act 

Comment: One commenter stated that 

the IFR will impact the number of 

respondents who fill out the Form I– 

589, Application for Asylum and for 

Withholding of Removal, annually and 

that, as a result, DHS and DOJ should 

clarify the status of the I–589 

information collection under the 

Paperwork Reduction Act. The 

commenter asserted that the rule will 

likely decrease the number of 

respondents who submit the I–589, 

although the commenter also noted that 

recent increases in the volume of aliens 

seeking asylum at the border may in fact 

increase the number of respondents who 

submit an I–589. 

Response: As stated in the IFR, the 

rule does not propose any new, or 

revisions to existing, ‘‘collections 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. 84 FR at 

33843. 

Further, the Departments find that it 

is not possible to estimate the impact of 

the rule on the volume of respondents 

who submit a Form I–589 annually. The 

Form I–589 is used jointly by DHS and 

DOJ to adjudicate applications for 

asylum, statutory withholding of 

removal, and protection under the CAT 

regulations. While fewer aliens may be 

eligible for asylum following a crediblefear finding due to the rule, aliens 

subject to the bar may still apply for 

withholding of removal under section 

241(b)(3) of the Act, 8 U.S.C. 1231(b)(3), 

or withholding or deferral of removal 

under the CAT regulations, if an asylum 

officer or immigration judge finds that 

they have a reasonable fear of 

persecution or torture. Such aliens 

would still submit the same Form I–589 

that they would have submitted for the 

purpose of applying for asylum before 

the enactment of the rule. In addition, 

as explained in the IFR, the United 

States has experienced a significant 

increase in the number of aliens 

encountered at the southern land border 

in recent years, which results in a larger 

total pool of possible asylum applicants. 

84 FR at 33838. Compare CBP, 

Southwest Border Migration FY2019 

(Nov. 14, 2019), https://www.cbp.gov/ 

newsroom/stats/sw-border-migration/fy2019 (reporting 851,508 apprehensions 

at the southern land border for Fiscal 

Year 2019), with CBP, Southwest Border 

Migration FY2017 (Dec. 15, 2017), 

https://www.cbp.gov/newsroom/stats/ 

sw-border-migration-fy2017 (reporting 

the following total apprehensions along 

the southern land border: 479,371 in 

Fiscal Year 2014; 331,333 in Fiscal Year 

2015; 408,870 in Fiscal Year 2016; and 

303,916 in Fiscal Year 2017). 

The Departments have not proposed 

any further amendments to the 

information collection to the IFR as 

reviewed under Office of Management 

and Budget (‘‘OMB’’) Control Number 

1615–0067. See OMB, Office of Info. & 

Regulatory Affairs, https://

www.reginfo.gov/public/do/ 

PRAViewICR?ref_nbr=201905-1615-002. 

IV. Regulatory Review Requirements 

A. Administrative Procedure Act 

This final rule is being published with 

a 30-day delay in the effective date as 

required by the APA. 5 U.S.C. 553(d). 

B. Regulatory Flexibility Act 

The Departments have reviewed this 

final rule in accordance with the 

Regulatory Flexibility Act (‘‘RFA’’) (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 will 

not regulate ‘‘small entities’’ as that term 

is defined in 5 U.S.C. 601(6). Only 

individuals, rather than entities, are 

eligible for asylum, and only 

individuals are eligible for asylum or are 

otherwise placed in immigration 

proceedings. 

Further, although some organizational 

commenters (whose organizations might 

qualify as ‘‘small entities’’) asserted that 

the rule would affect their operations, 

an RFA analysis is not required when a 

rule has only incidental effects on small 

entities, rather than directly regulating 

those entities. See, e.g., Mid-Tex Elec. 

Co-op, Inc. v. FERC, 773 F.2d 327, 342– 

43 (D.C. Cir. 1985) (‘‘[W]e conclude that 

an agency may properly certify that no 

regulatory flexibility analysis is 

necessary when it determines that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities that are subject 

to the requirements of the rule. . . . 

Congress did not intend to require that 

every agency consider every indirect 

effect that any regulation might have on 

small businesses in any stratum of the 

national economy.’’).51 Neither the IFR 

nor this final rule regulates 

immigration-related organizations in 

any way; those organizations can 

continue to accept clients, provide legal 

advice, and expend their resources 

however they see fit. The rule neither 

Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 82289 

52Unlike the Unfunded Mandates Reform Act of 

1995, see 2 U.S.C. 1532(a), the Congressional 

Review Act does not specifically require 

adjustments for inflation, see 5 U.S.C. 804. 

compels them nor entitles them to 

undertake any particular course of 

conduct. Thus, because this rule does 

not regulate small entities themselves, 

the Departments reaffirm their 

conclusion that no RFA analysis is 

necessary. 

C. Unfunded Mandates Reform Act of 

1995 

This final 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 

(adjusted annually for inflation) in any 

one year, and it will not significantly or 

uniquely affect small governments. See 

2 U.S.C. 1532. Therefore, no actions 

were deemed necessary under the 

provisions of the Unfunded Mandates 

Reform Act of 1995. 

D. Congressional Review Act 

This final 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’’; 52 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 foreignbased enterprises in domestic and 

export markets.’’ Id. 

E. Executive Order 12866, Executive 

Order 13563, and Executive Order 

13771 (Regulatory Planning and Review) 

This final rule is not subject to 

Executive Order 12866 because OMB 

determined that it implicates a foreign 

affairs function of the United States 

related to ongoing bilateral and 

multilateral discussions with the 

potential to impact a set of specified 

international relationships and 

agreements. For similar reasons, this 

rule is not a ‘‘regulation’’ as defined in 

Executive Order 13771, and the rule is 

therefore not subject to that order. 

F. Executive Order 13132 (Federalism) 

This final 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, this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

G. Executive Order 12988 (Civil Justice 

Reform) 

This final rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

H. Paperwork Reduction Act 

This final rule does not propose new, 

or revisions to existing, ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320. 

I. Signature 

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 1208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

Regulatory Amendments 

DEPARTMENT OF HOMELAND 

SECURITY 

Accordingly, for the reasons set forth 

in the preamble, the interim final rule’s 

amendments to 8 CFR 208.13 as 

published July 16, 2019, at 84 FR 33829 

are adopted as final with the following 

changes: 

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 1. The authority citation for part 208 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1158, 

1226, 1252, 1282; Title VII of Pub. L. 110– 

229; 8 CFR part 2. 

■ 2. In § 208.13, revise paragraphs 

(c)(4)(i) and (iii) to read as follows: 

§ 208.13 Establishing asylum eligibility. 

* * * * * 

(c) * * * 

(4) * * * 

(i) The alien demonstrates that he or 

she applied for protection from 

persecution in at least one country 

outside the alien’s country of 

citizenship, nationality, or last lawful 

habitual residence through which the 

alien transited en route to the United 

States and the alien received a final 

judgment denying the alien protection 

in such country. 

* * * * * 

(iii) The only country or countries 

through which the alien transited en 

route to the United States were, at the 

time of the transit, not parties to the 

1951 United Nations Convention 

relating to the Status of Refugees or the 

1967 Protocol relating to the Status of 

Refugees. 

* * * * * 

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 

interim final rule’s amendments to 

section 1208.13 as published July 16, 

2019, at 84 FR 33829 are adopted as 

final with the following changes: 

PART 1208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 3. The authority citation for part 1208 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 

1252, 1282; Title VII of Pub. L. 110–229. 

■ 4. In § 1208.13, revise paragraphs 

(c)(4), (c)(4)(i), and (c)(4)(iii) to read as 

follows: 

§ 1208.13 Establishing asylum eligibility. 

* * * * * 

(c) * * * 

(4) Additional limitation on eligibility 

for asylum. Notwithstanding the 

provisions of § 1208.15, any alien who 

enters, attempts to enter, or arrives in 

the United States across the southern 

land border on or after July 16, 2019, 

after transiting through at least one 

country outside the alien’s country of 

citizenship, nationality, or last lawful 

habitual residence en route to the 

United States, shall be found ineligible 

for asylum unless 

(i) The alien demonstrates that he or 

she applied for protection from 

persecution in at least one country 

outside the alien’s country of 

citizenship, nationality, or last lawful 

habitual residence through which the 

alien transited en route to the United 

States and the alien received a final 

82290 Federal Register / Vol. 85, No. 243 / Thursday, December 17, 2020 / Rules and Regulations 

judgment denying the alien protection 

in such country. 

* * * * * 

(iii) The only country or countries 

through which the alien transited en 

route to the United States were, at the 

time of the transit, not parties to the 

1951 United Nations Convention 

relating to the Status of Refugees or the 

1967 Protocol relating to the Status of 

Refugees. 

* * * * * 

Approved: 

Chad R. Mizelle, 

Senior Official Performing the Duties of the 

General Counsel, U.S. Department of 

Homeland Security. 

Approved: 

James R. McHenry III, 

Director, Executive Office for Immigration 

Review, Department of Justice. 

[FR Doc. 2020–27856 Filed 12–16–20; 8:45 am] 

BILLING CODE 4410–30–P; 9111–97–P