84160 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

1The Department of Health and Human Services 

defines a communicable disease as ‘‘an illness due 

to a specific infectious agent or its toxic products 

which arises through transmission of that agent or 

its products from an infected person or animal or 

a reservoir to a susceptible host, either directly, or 

indirectly through an intermediate animal host, 

vector, or the inanimate environment.’’ 42 CFR 

71.1(b). 

2Asylum-and-withholding-only proceedings are 

adjudicated in the same manner that had applied 

to certain alien crewmembers, stowaways, and 

applicants for admission under the Visa Waiver 

Program, among other categories of aliens who are 

not entitled by statute to removal proceedings 

under section 240 of the INA, 8 U.S.C. 1229a. 8 CFR 

208.2(c)(1)(i)–(viii), 1208.2(c)(1)(i)–(viii). These 

proceedings generally follow the same rules of 

procedure that apply in section 240 proceedings, 

but the immigration judge’s consideration is limited 

solely to a determination on the alien’s eligibility 

for asylum, withholding of removal and deferral of 

removal (and, if the alien is eligible for asylum, 

whether he or she should receive it as a matter of 

discretion). 8 CFR 208.2(c)(3)(i), 1208.2(c)(3)(i). 

3The preamble discussion is not incorporated to 

the extent specifically noted in this final rule, or in 

the context of proposed regulatory text that is not 

contained in this final rule. 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 208 

RIN 1615–AC57 

[Docket No: USCIS 2020–0013] 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Part 1208 

[Dir. Order No. 11–2021] 

RIN 1125–AB08 

Security Bars and Processing 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security (‘‘DHS’’); Executive 

Office for Immigration Review, 

Department of Justice (‘‘DOJ’’) 

ACTION: Final rule. 

SUMMARY: On July 9, 2020, DHS and DOJ 

(collectively, ‘‘the Departments’’) 

published a notice of proposed 

rulemaking (‘‘NPRM’’) clarifying that 

the danger to the security of the United 

States statutory bar to eligibility for 

asylum and withholding of removal may 

encompass emergency public health 

concerns. This final rule responds to 

comments received in response to the 

NPRM and reflects (and in some 

instances, modifies) intervening changes 

made to the regulatory framework by 

Procedures for Asylum and Withholding 

of Removal; Credible Fear and 

Reasonable Fear Review, published 

December 11, 2020 (‘‘Global Asylum 

Final Rule’’). Namely, it amends 

existing regulations to clarify that in 

certain circumstances there are 

‘‘reasonable grounds for regarding [an] 

alien as a danger to the security of the 

United States’’ or ‘‘reasonable grounds 

to believe that [an] alien is a danger to 

the security of the United States’’ based 

on emergency public health concerns 

generated by a communicable disease, 

making the alien ineligible to be granted 

asylum in the United States under 

section 208 of the Immigration and 

Nationality Act (‘‘INA’’) or the 

protection of withholding of removal 

under the INA (‘‘statutory withholding 

of removal’’) or subsequent regulations 

(because of the threat of torture). The 

final rule further allows DHS to exercise 

its prosecutorial discretion regarding 

how to process individuals subject to 

expedited removal who are determined 

to be ineligible for asylum and 

withholding of removal in the United 

States because they are subject to the 

danger to the security of the United 

States. Finally, the rule modifies the 

process in expedited removal 

proceedings for screening aliens for 

potential eligibility for deferral of 

removal (who are ineligible for 

withholding of removal as subject to the 

danger to the security of the United 

States bar). 

DATES: This final rule is effective 

January 22, 2021. 

FOR FURTHER INFORMATION CONTACT: 

FOR USCIS: Andrew Davidson, 

Asylum Division Chief, Refugee, 

Asylum and International Affairs 

Directorate, U.S. Citizenship and 

Immigration Services, DHS; telephone 

202–272–8377 (not a toll-free call). 

For EOIR: Lauren Alder Reid, 

Assistant Director, Office of Policy, 

Executive Office for Immigration 

Review, telephone (703) 305–0289 (not 

a toll-free call). 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

On July 9, 2020, the Departments 

published an NPRM entitled Security 

Bars and Processing. 85 FR 41201 et seq. 

(July 9, 2020). In this final rule, the 

Departments respond to comments 

received in response to the NPRM and 

changes made to the regulatory 

framework by the Global Asylum Final 

Rule, in order to mitigate the risk of 

aliens bringing a serious 

communicable 1 disease to the United 

States, or further spreading it within our 

country. Thus, the Departments make 

three fundamental and necessary 

reforms to the Nation’s immigration 

system: (1) Clarifying that the statutory 

‘‘danger to the security of the United 

States’’ bars to eligibility for asylum and 

withholding of removal apply in certain 

contexts involving public health crises 

caused by communicable diseases so 

that aliens can be expeditiously 

removed, as appropriate, (2) as to aliens 

determined during credible fear 

screenings to be ineligible for asylum 

and withholding of removal on the basis 

of the danger to the security of the 

United States bars or ineligible for 

asylum for having failed to apply for 

protection from persecution in a third 

country where potential relief is 

available while en route to the United 

States pursuant to Asylum Eligibility 

and Procedural Modifications, 85 FR 

82260 (December 17, 2020) (‘‘ThirdCountry Transit Final Rule’’), 

streamlining screening for potential 

eligibility for deferral of removal in the 

expedited removal process to similarly 

allow for the expeditious removal of 

aliens ineligible for deferral, and (3) as 

to aliens determined during credible 

fear screenings to be ineligible for 

asylum and withholding of removal on 

the basis of the danger to the security of 

the United States bars or ineligible for 

asylum for having failed to apply for 

protection from persecution in a third 

country where potential relief is 

available while en route to the United 

States pursuant to the Third-Country 

Transit Final Rule, but who nevertheless 

establish that they are more likely than 

not to be tortured in the prospective 

country of removal, allowing DHS to 

utilize its prosecutorial discretion to 

either place the aliens into asylum-andwithholding-only removal proceedings 

under 8 CFR 208.2(c)(1) and 8 CFR 

1208.2(c)(1) (‘‘asylum-and-withholdingonly proceedings’’) 2 or to remove them 

to third countries where they would not 

be more likely than not to be tortured. 

The amendments made by this final 

rule will apply to aliens who enter the 

United States after the rule’s effective 

date, except that the amendments will 

not apply to aliens who had, before the 

date of an applicable joint Secretary of 

Homeland Security and Attorney 

General designation of an area or areas 

of the world as to which it is necessary 

for the public health that certain aliens 

who were present there be regarded as 

a danger to the security of the United 

States, (1) filed asylum and withholding 

of removal applications, or (2) indicated 

a fear of return in expedited removal 

proceedings. 

II. Background 

The preamble discussion in the 

NPRM is generally incorporated by 

reference in this final rule.3 As of the 

date the NPRM was published on July 

9, 2020, 3,239,412 persons in the United 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84161 

4WorldMeter, COVID–19 Tracking Tool, https:// 

www.worldometers.info/coronavirus/#countries 

(last visited November 3, 2020). 

5CDC COVID Data Tracker, https://covid.cdc.gov/ 

covid-data-tracker/#cases_casesper100klast7days 

(last visited December 17, 2020). 

6 DHS, Pandemic Influenza: Preparedness, 

Response, and Recovery: Guide for Critical 

Infrastructure and Key Resources, Introduction at 1 

(2006) (Michael Chertoff, Secretary of Homeland 

Security), https://www.dhs.gov/sites/default/files/ 

publications/cikrpandemicinfluenzaguide.pdf. 

7FOMC, Federal Reserve System, December 16, 

2020: FOMC Projections Materials, Accessible 

Version (table 1). The 2.4 percent fall in GDP is the 

median projection of Federal Reserve Board 

members and Federal Reserve Bank presidents from 

the 4th quarter of 2019 to the 4th quarter of 2020 

under each participant’s assessment of appropriate 

monetary policy, with the upper end of central 

tendency (which excludes the three highest and 

three lowest projections) a decrease of 2.2 percent 

and the lower end of central tendency at drop of 

2.5 percent. The 6.7 percent unemployment rate is 

the median projection of the average civilian 

unemployment rate in the 4th quarter of 2020, with 

the upper end of central tendency at 6.8 percent 

and the lower end of range at 6.7 percent. 

8Bureau of Labor Statistics, U.S. Department of 

Labor, The Employment Situation—June 2020 (table 

A–1) and The Employment Situation—November 

2020 (table A–1) (both providing the seasonally 

adjusted unemployment rate for the civilian 

noninstitutional population, persons 16 years old 

and over). 

9 December 16, 2020: FOMC Projections 

Materials, Accessible Version (table 1). The 4.2 

percent rise in GDP is the median projection of 

Federal Reserve Board members and Federal 

Reserve Bank presidents from the 4th quarter of 

2020 to the 4th quarter of 2021 under each 

participant’s assessment of appropriate monetary 

policy, with the upper end of central tendency an 

increase of 5.0 percent and the lower end of central 

tendency an increase of 3.7 percent. The 5.0 percent 

unemployment rate is the median projection of the 

average civilian unemployment rate in the 4th 

quarter of 2021, with the upper end of central 

tendency at 5.4 percent and the lower end of range 

at 4.7 percent. 

10FOMC, Federal Reserve System, Federal Open 

Market Committee Statement (December 16, 2020). 

11 IMF, World Economic Outlook: Chapter 2: The 

Great Lockdown: Dissecting the Economic Effects at 

65–66 (October 2020). 

States were reported to have contracted 

COVID–19 and 136,145 had died.4 The 

number of persons infected has now 

reached 16,519,668 and the death toll 

has reached 302,992 (as of December 15, 

2020).5

As of December 2020, the impact of 

the COVID–19 pandemic has been 

similar to that pandemic impact feared 

by then-Secretary of Homeland Security 

Michael Chertoff in 2006—‘‘[a] severe 

pandemic . . . may affect the lives of 

millions of Americans, cause significant 

numbers of illnesses and fatalities, and 

substantially disrupt our economic and 

social stability’’.6

On December 16, 2020, the Federal 

Reserve Board’s Open Market 

Committee (‘‘FOMC’’) projected that real 

gross domestic product (‘‘GDP’’) in 

fiscal year 2020 would fall by 2.4 

percent and that the national 

unemployment rate would be 6.7 

percent.7 As a result of COVID–19, the 

national unemployment rate rose from 

3.5 percent in February 2020 to a peak 

of 14.7 percent in April, before 

subsequently declining, most recently to 

6.7 percent in November.8 The FOMC 

also projected that GDP will rebound by 

4.2 percent in fiscal year 2021 and the 

national unemployment rate will fall to 

5.0 percent.9 On December 16, 2020, the 

FOMC issued a statement finding that: 

The COVID–19 pandemic is causing 

tremendous human and economic hardship 

across the United States and around the 

world. Economic activity and employment 

have continued to recover but remain well 

below their levels at the beginning of the 

year. . . . The path of the economy will 

depend significantly on the course of the 

virus. The ongoing public health crisis will 

continue to weigh on economic activity, 

employment, and inflation in the near term, 

and poses considerable risks to the economic 

outlook over the medium term.10

After evaluating the effects of 

voluntary and mandatory containment 

measures, the International Monetary 

Fund (‘‘IMF’’) reported in October that: 

If lockdowns were largely responsible for 

the economic contraction, it would be 

reasonable to expect a quick economic 

rebound when they are lifted. But if 

voluntary social distancing played a 

predominant role, then economic activity 

would likely remain subdued until health 

risks recede. 

[T]he analysis suggests that lockdowns and 

voluntary social distancing played a near 

comparable role in driving the economic 

recession. The contribution of voluntary 

distancing in reducing mobility was stronger 

in advanced economies, where people can 

work from home more easily and sustain 

periods of temporary unemployment because 

of personal savings and government benefits. 

When looking at the recovery path ahead, 

the importance of voluntary social distancing 

as a contributing factor to the downturn 

suggests that lifting lockdowns is unlikely to 

rapidly bring economic activity back to 

potential if health risks remain. . . . These 

findings suggest that economies will 

continue to operate below potential while 

health risks persist, even if lockdowns are 

lifted.11

IV. Public Comments on the Proposed 

Rule 

A. Summary of Public Comments 

On July 9, 2020, the Departments 

published the NPRM (docket USCIS– 

2020–0013). The comment period 

closed on August 10, 2020. The 

Departments received a total of 5,044 

submissions. While some of the 

comments expressed general support for 

the proposed rule or expressed a mixed 

opinion of the rule, the majority of 

commenters opposed the rule. Of the 

5,044 total submissions, 1,417 were 

unique, nonduplicative submissions. 

Overall, and as discussed in more 

detail below, the Departments generally 

decline to adopt the recommendations 

of comments that misstate the NPRM, 

offer broad and dire hypothetical or 

speculative effects without any support, 

are contrary to facts or law or otherwise 

untethered to a reasoned basis, or lack 

an understanding of relevant law and 

procedures regarding the overall 

immigration system. 

B. Comments Expressing General 

Support for the Proposed Rule 

Comment: At least two organizations 

and other individual commenters 

expressed general support for the rule. 

Commenters who supported the rule 

considered the health and safety of 

American citizens as paramount and 

agreed that public health concerns 

should be a consideration in evaluating 

dangers to the national security and 

considering asylum applications. These 

commenters supported protecting 

Americans from the spread of 

communicable diseases and urged the 

U.S. government to prevent the 

healthcare system from becoming 

overburdened by aliens seeking medical 

care in the United States. 

One commenter noted an increase in 

COVID–19 cases at border crossings and 

considered aliens infected with COVID– 

19 as a threat to Americans’ health and 

a financial burden to the country. 

Another commenter expressed support 

for the rule, stating that it was unfair for 

American taxpayers to pay for the 

healthcare of aliens. 

Some commenters stated that the rule 

protected U.S. citizens from individuals 

who abuse the law and take advantage 

of the United States’ generosity and 

asylum system. 

Response: The Departments note and 

appreciate these commenters’ support 

for the rule. 

C. Comments Expressing General 

Opposition for the Proposed Rule 

Comment: At least 3,570 commenters, 

including 2,635 submissions associated 

with form letter campaigns, expressed 

general disagreement with the proposed 

rule. Many commenters characterized 

the rule as racist, unfair, or otherwise 

morally wrong. Moreover, some 

commenters interpreted the rule as 

discriminatory against black, brown, 

indigenous persons, and immigrants. 

Additionally, commenters characterized 

the rule as an immigration or asylum 

ban and expressed concerns that the 

rule would make immigration to the 

United States more difficult or eliminate 

the availability of asylum and 


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12CAT, art. 3(1), December 10, 1984, S. Treaty 

Doc. No. 100–20 (1988), 1465 U.N.T.S. 84. 

13 July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 

150. 

14 Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268. 

Article 33.1 of the Refugee Convention states that 

‘‘[n]o Contracting State shall expel or return 

(‘refouler’) a refugee in any manner whatsoever to 

the frontiers or territories where his life or freedom 

would be threatened on account of his race, 

religion, nationality, membership or a particular 

social group or political opinion.’’ 19 U.S.T. 6259, 

6276, 189 U.N.T.S. 150, 176 (emphasis added). In 

1968, the United States acceded to the Refugee 

Protocol, which bound parties to comply with the 

substantive provisions of Articles 2 through 34 of 

the Convention with respect to refugees. See I.N.S. 

v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987). 

withholding of removal in the United 

States. Some commenters stated that 

asylum-seekers do not pose a security or 

safety threat to the United States on the 

basis of having traveled through other 

countries. 

Many commenters stated that the rule 

conflicts with American values and the 

country’s deeply rooted policy of 

welcoming immigrants and refugees, 

and they asserted that its 

implementation would damage the 

United States’ standing and reputation 

in the world. Commenters believed that 

the United States should welcome 

asylum-seekers, and that immigration 

benefits the United States both 

economically and culturally. Some 

commenters believed the rule 

unlawfully infringes on aliens’ rights to 

asylum in the United States. 

Many commenters also generally 

asserted that the rule provides 

inadequate policy justification or legal 

analysis, which commenters asserted is 

evidence that it was inappropriately 

motivated by the Administration’s 

personal animus against immigrants. 

Some commenters also rejected the 

public health rationale, claiming that 

alternative measures could be taken to 

protect the American public, and that 

the rule would do little to mitigate the 

spread of disease. Additionally, 

commenters believed that it is 

unreasonable for the Departments to 

make decisions regarding public health. 

Multiple commenters wrote that the 

rule would be discriminatory. These 

commenters claimed the rule would 

generally contravene international laws 

against discrimination, including 

Article 3 of the Convention Against 

Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment 

(‘‘CAT’’),12 the Universal Declaration of 

Human Rights, the International 

Covenant on Economic, Social and 

Cultural Rights, the Convention on the 

Elimination of All Forms of 

Discrimination against Women, the 

United States’ obligations under the 

1951 Convention relating to the Status 

of Refugees (‘‘Refugee Convention’’) 13

and the 1967 Protocol relating to the 

Status of Refugees (‘‘Refugee 

Protocol’’),14 and Article 7 of the 

International Covenant on Civil and 

Political Rights. Some commenters 

claimed that the rule specifically 

discriminates on the basis of national 

origin because applicants could be 

barred from asylum eligibility on the 

basis of the countries through which 

they have travelled. 

Some commenters said the rule 

violates guidance provided by the 

United Nations High Commissioner for 

Refugees (‘‘UNHCR’’) because it denies 

asylum in ‘‘blanket terms’’ based on 

consideration of the prevalence of a 

disease in the countries through which 

asylum seekers have travelled and 

because the standard of evidence for 

triggering the bar is low. 

Response: To provide an overview of 

the Departments’ response to these 

comments, the Departments 

emphatically disagree with contentions 

that the rule is immoral, motivated by 

racial animus, or promulgated with 

discriminatory intent. This rulemaking 

applies equally to all asylum seekers. 

The demographics of asylum seekers are 

as vast and varied as the number of 

countries around the globe and the 

Departments did not promulgate this 

rule to impact any particular race, 

religion, nationality, or category of 

aliens who may seek asylum. 

The Departments also strongly 

disagree that this rule illegally infringes 

on the right to seek asylum. Unlike 

statutory withholding of removal and 

protections under the regulations issued 

pursuant to the legislation 

implementing Article 3 of CAT (‘‘CAT 

regulations’’), asylum is a discretionary 

benefit. No one has the right to be 

granted asylum in the United States and 

this rule does not alter an alien’s ability 

to seek asylum through the statutorilyprescribed channels, including credible 

fear interviews for aliens in expedited 

removal proceedings. Additionally, 

aliens subject to the bars imposed by 

this rule on asylum and withholding of 

removal may still receive protection 

against removal if they establish they 

are eligible for deferral of removal under 

the CAT regulations. 

The United States continues to fulfill 

its international commitments as 

implemented by domestic law. This rule 

merely reflects the need to protect the 

American public during times of 

extraordinary threats to the public 

health from pandemic diseases, as 

permitted by those laws. 

The Departments have considered and 

rejected alternatives to mitigate the 

spread of communicable disease within 

U.S. Customs and Border Protection 

(‘‘CBP’’) facilities at the border. 

Although CBP has policies and 

procedures in place to handle 

communicable diseases, CBP is not 

equipped to provide medical support 

sufficient to meet the unique and 

specialized challenges posed by 

particularly infectious or highly 

contagious illnesses or diseases brought 

into CBP facilities. Of the 136 CBP 

facilities along the land and coastal 

borders, only 46 facilities, all located on 

the southern land border with Mexico, 

have contracted medical support on 

location. Even that support is not 

currently designed to diagnose, treat, 

and manage certain infectious or highly 

contagious illnesses or diseases— 

particularly novel diseases. Moreover, 

many CBP facilities, particularly along 

the southern land border, are located in 

remote locations distant from hospitals 

and other medical care and supplies. In 

short, if a highly contagious illness or 

disease were to be transmitted within a 

CBP facility, CBP operations could face 

significant disruption. 

As the Departments explain below, 

the U.S. government is not bound by 

UNHCR guidance. And the Departments 

disagree with the premise that the rule’s 

standards for triggering the bars to 

eligibility for asylum and withholding 

of removal are inadequate. The 

Departments proposed the rule to clarify 

that authorities provided by Congress 

can be used to mitigate harms arising 

from the spread of communicable 

disease to DHS officers on the border, 

aliens in DHS custody, and the general 

public, as well as significant operational 

and resource strains associated with 

public health procedures and protocol 

the Departments must implement, and 

in the case of COVID–19, are 

implementing, to mitigate the spread of 

communicable disease. Additionally, 

the rule requires that the application of 

the security bars to asylum and 

withholding of removal be tailored to 

the specific threat posed by the relevant 

public health emergency. 

D. Basis for the Rule 

1. Legal Authority 

Several commenters generally argued 

that the proposed rule is contrary to 

international or domestic law, including 

the Refugee Convention and Refugee 

Protocol, CAT, and the INA, and is 

contrary to Congressional intent in 

enacting these laws and ratifying these 

treaties to provide protection to those 

fleeing persecution or torture. 


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15 Matter of A–H-, 23 I&N Dec. 774, 788 (AG 

2005). 

16H.R. Rep. No. 104–518, at 38 (1996) (Conf. 

Rep.). 

17 142 Cong. Rec. H2268–03, at H2276 (Mar. 14, 

1996) (S. 735, title VI, 401(a)). 

18Section 401(a) of title IV of S. 735 (as passed 

the Senate on June 7, 1995), 141 Cong. Rec. S7864 

(July 7, 1995). 

19 Id. 

Antiterrorism and Effective Death 

Penalty Act of 1996 (‘‘AEDPA’’) 

Comment: Commenters argued that 

the proposed rule ignores or contradicts 

Congressional intent by not 

acknowledging the distinction between 

national security and economic 

concerns in AEDPA, citing legislative 

history and sections 413 and 421 of the 

legislation, which incorporated the 

terrorism-related removal grounds at 

INA 212(a)(3)(B)(i) and 237(a)(4)(B) as 

mandatory bars to eligibility for asylum 

and withholding of removal. The 

commenters argued that Congress 

intended for these provisions to limit 

the scope of danger to the security of the 

United States bars to those aliens who 

have engaged in violent acts or other 

terrorism-related activity, in marked 

contrast to the type of threat posed by 

a communicable disease. 

Response: The Departments disagree 

with the commenters’ analysis of 

sections 413 and 421 of AEDPA. As 

discussed in the NPRM, with respect to 

aliens whom there are reasonable 

grounds for regarding or believing are a 

danger to the security of the United 

States and thus ineligible for asylum 

and withholding of removal, the scope 

of the term extends well beyond 

terrorism considerations, and national 

defense considerations as well. The 

Attorney General has previously 

determined that ‘‘danger to the security 

of the United States’’ in the context of 

the bar to eligibility for withholding of 

removal encompasses considerations of 

defense, foreign relations, and the 

economy, finding that: 

The INA defines ‘‘national security’’ [in the 

context of the designation process for foreign 

terrorist organizations] to mean ‘‘the national 

defense, foreign relations, or economic 

interests of the United States.’’ Section 

219(c)(2) of the Act, 8 U.S.C. 1189(c)(2) 

(2000). Read as a whole, therefore, the phrase 

‘‘danger to the security of the United States’’ 

is best understood to mean a risk to the 

Nation’s defense, foreign relations, or 

economic interests.15

The INA’s definition of ‘‘national 

security’’ referred to by the Attorney 

General provides additional evidence 

that the term—along with the term 

‘‘danger to the security of the United 

States’’—should be read to encompass 

concerns beyond those concerning 

national defense and terrorism. In fact, 

the definition was enacted in 1996 as 

section 401(a) of title IV of AEDPA and 

was added as enacted by the HouseSenate Conference Committee.16 The 

proposed legislation as originally passed 

by the Senate defined ‘‘national 

security’’ to mean ‘‘the national defense 

and foreign relations of the United 

States.’’ 17 That version of the bill may 

have considered economic concerns as 

separate from national security 

concerns. For example, it provided that 

in designating a foreign terrorist 

organization, the Secretary of State 

would have had to find that ‘‘the 

organization’s terrorism activities 

threaten the security of United States 

citizens, national security, foreign 

policy, or the economy of the United 

States’’—listing ’’national security’’ and 

‘‘the economy’’ as two independent 

considerations.18 In addition, the 

section included a finding that also 

differentiated between national security 

concerns and those related to foreign 

policy and the economy. Congress 

found that: 

(B) [T]he Nation’s security interests are 

gravely affected by the terrorist attacks 

carried out overseas against United States 

Government facilities and officials, and 

against American citizens present in foreign 

countries; 

(C) United States foreign policy and 

economic interests are profoundly affected by 

terrorist acts overseas directed against foreign 

governments and their people ....19

But Congress then seemingly abandoned 

this bifurcation between security and 

the economy. First, the Conference 

Report merged economic considerations 

into the definition of national security. 

Therefore, to the extent one accepts 

legislative history as a relevant 

consideration when interpreting the 

meaning of statutory terms, the change 

in phrasing in the Conference Report 

suggests a conscious decision that 

economic considerations are subsumed 

within a general reference to national 

security. Second, the explicit reference 

to economic considerations in the 

earlier draft of the legislation, when 

discussing the threats posed by 

terroristic activities, also implies a 

connection between national security 

and economic concerns—suggesting that 

considerations related to security in this 

context are quite broad. Finally, the 

definition in AEDPA operated in the 

context of the designation of foreign 

terrorist organizations. When national 

security is considered in a much 

broader context beyond the risk of 

terrorism, as is the case in this rule, it 

makes even greater sense for it to 

encompass economic concerns (and, 

consequently, public health concerns of 

such magnitude that they become 

economic concerns). A pandemic can 

cause immense economic damage, in 

addition to the human toll of the illness. 

Thus, the entry of aliens who may carry 

communicable diseases to our country 

or facilitate the spread of such disease 

within the interior of the country could 

pose a danger to U.S. security well 

within the scope of the statutory bars to 

eligibility for asylum and withholding 

of removal. The entry of such aliens 

could also pose a danger to national 

security by threatening DHS’s ability to 

secure our border and facilitate lawful 

trade and commerce. 

Finally, while aliens who are 

described in the terrorism-related 

removal grounds fall under the ‘‘danger 

to security’’ bars to asylum and 

withholding, there is nothing in the 

language of those sections limiting the 

application of those bars to terrorism 

grounds. In fact, terrorism-related 

activity is a separate statutory bar to 

asylum eligibility from the danger to the 

security of the United States bar. And 

the INA specifies that an alien engaging 

in such activity ‘‘shall be considered to 

be an alien with respect to whom there 

are reasonable grounds for regarding as 

a danger to the security of the United 

States,’’ INA 241(b)(3)(B), 8 U.S.C. 

1231(b)(3)(B), thus indicating such an 

alien represents only a subset of the 

larger category of aliens for whom there 

are reasonable grounds to believe are a 

danger to the security of the United 

States. 

The Departments are not making 

changes to the final rule in response to 

these comments. 

Refugee Convention, Refugee Protocol, 

UNHCR Guidance and Statements, the 

Universal Declaration of Human Rights, 

and the International Health Regulations 

Comment: Several commenters 

claimed that the NPRM is inconsistent 

with U.S. obligations under the Refugee 

Convention and the Refugee Protocol, 

including the principal of 

nonrefoulement, and that those 

obligations have been implemented into 

domestic U.S. law through the Refugee 

Act of 1980. They argued that domestic 

statutes must be interpreted consistently 

with international law where possible, 

and cite sources relating to the U.S. role 

in negotiation of the Refugee 

Convention and in the ratification of the 

Refugee Protocol evincing the intent of 

the U.S. not to exclude refugees from 

protection for reasons of health. 

Commenters argued that the danger to 

the security of the United States bars to 

asylum and withholding of removal 

derive from Articles 32 and 33(2) of the 


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20UNHCR, Advisory Opinion from the UNHCR on 

the Scope of the National Security Exception Under 

Article 33(2) of the 1951 Convention Relating to the 

Status of Refugees 5 (2006). 21See, e.g., Message from the President of the 

United States, Transmitting the Protocol Relating to 

the Status of Refugees, at VIII (1968); Dep’t of 

Health, Education, and Welfare (‘‘HEW’’), 

Memorandum for Ambassador Graham Martin re: 

Protocol Relating to the Status of Refugees (July 22, 

1968); HEW, Letter to Ambassador Graham Martin 

re: Protocol Relating to the Status of Refugees (July 

16, 1968). 

22UNHCR, Key Legal Considerations on Access to 

Territory for Persons in Need of International 

Protection in the Context of the COVID–19 

Response (Mar. 2020). 

23Public Law 105–277, div. G, subdiv. B, title 

XXII, sec. 2242 (b), 112 Stat. 2681–822 (1998), 

codified at 8 U.S.C. 1231 note; 8 CFR 208.16(b)–(c), 

208.17, 208.18; 1208.16(b)–(c), 1208.17, 1208.18. 

24 467 U.S. 407, 428 (1984) (citation omitted). See 

Cardoza-Fonseca, 480 U.S. at 440–41. 

25R–S–C v. Sessions, 869 F.3d 1176, 1188 & n.11 

(10th Cir. 2017); see also Cazun v. U.S. Att’y Gen., 

856 F.3d 249, 257 & n.16 (3d Cir. 2017),),); RamirezMejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016). 

26 Maldonado v. Lynch, 786 F.3d 1155, 1162 (9th 

Cir. 2015). 

27Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 

2005) (‘‘The 1967 Protocol is not self-executing, nor 

does it confer any rights beyond those granted by 

implementing domestic legislation.’’); Auguste v. 

Ridge, 395 F.3d 123, 132 (3d Cir. 2005) (CAT ‘‘was 

not self-executing’’). 

Refugee Convention. They claimed that 

these provisions regarding national 

security do not encompass health 

concerns. Several commenters also 

pointed out that withholding of removal 

is not a discretionary benefit but instead 

a mandatory protection under Article 33 

of the Refugee Convention as codified at 

section 241(b)(3) of the INA. Two 

commenters cited UNHCR’s guidance 

and academic papers in arguing that the 

danger to the security of the United 

States bars must be based on 

individualized determinations. Another 

commenter specifically argued that the 

‘‘reasonable person’’ standard proposed 

by the rule, and the possibility that a 

person could be expelled for passing 

through a country where COVID–19 was 

prevalent without proof of that person’s 

infection (via testing), violates UNHCR 

guidance against refoulement without 

evidence of a health risk. An individual 

also commented that such a denial 

would violate Article 14 of the 

Universal Declaration of Human Rights, 

which guarantees the right to seek and 

enjoy asylum from persecution. A legal 

services provider cited to UNHCR 

guidance,20 as well as U.S. 

correspondence during the formulation 

of the Refugee Protocol, in arguing the 

invalidity of security bars applying to an 

entire class of asylum seekers. Another 

commenter cited to the 2006 UNHCR 

guidance for the propositions that (1) 

the dangers to the security of the United 

States bars must be restrictively 

interpreted; (2) the danger posed to 

national security must be sufficient to 

justify refoulement; and (3) refoulement 

must be proportionate to the danger 

presented.21 The commenter then 

concluded that the proposed rule would 

fail under all three considerations. 

Another commenter stated that not 

considering an asylum seeker’s intent 

with respect to conduct that could give 

rise to a security bar would be contrary 

to the humanitarian social purpose of 

the Refugee Act and the Refugee 

Convention. Multiple commenters also 

cited to 2020 UNHCR guidance,22 as 

prohibiting the closure of borders for 

public health reasons without 

preserving asylum seekers’ rights under 

international law, noting that the 

guidance recommended relying on the 

screening and quarantine of asylum 

seekers, stated that refoulement could 

not be justified on a public health basis 

and stated that a total lock-out of 

asylum seekers would violate rules of 

proportionality. 

Several commenters stated that the 

rule breaches international health 

regulations that bind the United States 

and require it to exercise health powers 

with full respect for human rights. A 

legal services provider commented that 

the international health regulations 

provide for the humane treatment of 

migrants during a screening or 

quarantine period. 

Response: The United States has 

undertaken certain obligations under 

the Refugee Protocol, which 

incorporates Articles 2–34 of the 

Refugee Convention. Article 33 of the 

Refugee Convention, as understood in 

U.S. law, generally precludes state 

parties from removing individuals to 

any country where their lives or 

freedom would be threatened on 

account of their race, religion, 

nationality, political opinion, or 

membership in a particular social group. 

Congress made the decision to 

implement its non-refoulement 

obligations under the Refugee Protocol 

through the protection of statutory 

withholding of removal at section 

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

and in the Foreign Affairs Reform and 

Restructuring Act (‘‘FARRA’’), to 

implement its CAT non-refoulement 

obligations through regulations, which 

resulted in withholding and deferral of 

removal protections under the CAT 

regulations.23 It was Congress’s 

deliberate decision to establish a 

requirement that an alien show it is 

more likely than not that his or her ‘‘life 

or freedom would be threatened’’ for 

statutory withholding of removal, the 

standard designed to meet U.S. 

obligations under the Refugee Protocol. 

The Supreme Court stated in INS v. 

Stevic that ‘‘it seems clear that Congress 

understood that refugee status alone did 

not require [statutory] withholding of 

deportation, but rather, the alien had to 

satisfy the [more likely than not] 

standard’’ under statutory withholding 

of removal.24

An alien who can demonstrate that he 

or she would more likely than not face 

persecution on account of a protected 

ground or torture is entitled to 

withholding of removal or, if more 

likely than not to be tortured but subject 

to a mandatory bar to eligibility for 

withholding, is entitled to CAT deferral 

of removal. As the Tenth Circuit has 

stated, ‘‘the Refugee Convention’s nonrefoulement principle—which prohibits 

the deportation of aliens to countries 

where the alien will experience 

persecution—is given full effect by the 

Attorney General’s withholding-only 

rule’’.25 And the Ninth Circuit 

explained that Article 3 of the CAT was 

implemented in the United States by the 

FARRA and its implementing 

regulations.26 The Departments also 

note that neither of these treaties is selfexecuting and therefore they are not 

directly enforceable in the U.S. legal 

context except to the extent that they 

have been implemented by domestic 

legislation.27

Article 33 of the Refugee Convention 

includes an exception from nonrefoulement obligations, similar to the 

section 241(b)(3)(B)(iv) security 

exception, which provides that the 

benefit of those obligations ‘‘may not 

. . . be claimed by a refugee whom 

there are reasonable grounds for 

regarding as a danger to the security of 

the country in which he is.’’ Rejection 

of withholding of removal claims from 

aliens who would risk bringing in or 

further spreading a communicable 

disease such as COVID–19 into the 

United States is therefore consistent 

with the non-refoulement provisions of 

the Refugee Convention and the Refugee 

Protocol, as national security concerns 

encompass the security risks associated 

with an international public health 

emergency like the COVID–19 

pandemic, or other communicable 

diseases of public health significance 

that may arise in the future. 

Asylum under the immigration laws, 

on the other hand, is a discretionary 

form of relief. Section 208 of the INA 

reflects the fact that Article 34 of the 

Refugee Convention is precatory and 

accordingly provides that aliens meeting 

the eligibility requirements for asylum 

‘‘may’’ be granted asylum and contains 

various bases upon which an alien 

meeting the definition of a refugee is 


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28Article 34 states: ‘‘The Contracting States shall 

as far as possible facilitate the assimilation and 

naturalization of refugees. They shall in particular 

make every effort to expedite naturalization 

proceedings and to reduce as far as possible the 

charges and costs of such proceedings.’’ See also RS-C, 869 F.3d at 1188; Mejia v. Sessions, 866 F.3d 

573, 588 (4th Cir. 2017), Cazun, 856 F.3d at 257 & 

n.16; Ramirez-Mejia, 813 F.3d at 241. 

29 DHS v. Thuraissigiam, 140 S. Ct. 1959, 1965 

n.4 (2020) (‘‘[E]ven if an applicant qualifies, an 

actual grant of asylum is discretionary.’’); See also 

Cardoza-Fonseca, 480 U.S. at 441, Grace v. 

Sessions, 856 F.3d 27, 40 (1st Cir. 2017) 

(‘‘[W]ithholding of removal has long been 

understood to be a mandatory protection that must 

be given to certain qualifying aliens, while asylum 

has never been so understood’’). 

30 INS v. Aguirre-Aguirre, 526 U.S. 415, 427 

(1999). 

31 Id. 

32Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 

734–35 (2004) (citing John P. Humphrey, The U.N. 

Charter and the Universal Declaration of Human 

Rights, in The International Protection of Human 

Rights 39, 50 (Evan Luard ed., 1967) (quoting 

Eleanor Roosevelt as stating that the Declaration is 

‘‘ ‘a statement of principles . . . setting up a 

common standard of achievement for all peoples 

and all nations’ and ‘not a treaty or international 

agreement . . . impos[ing] legal obligations.’ ’’)). 

33Art. 14(1). 

34World Health Organization, International 

Health Regulations, Art. 1 (3d ed. 2005). 

nonetheless ineligible to apply for or 

receive asylum and authorizes the 

creation of new eligibility bars through 

regulation.28 The federal judiciary has 

rejected arguments that the Refugee 

Protocol, as implemented in domestic 

law, requires that every qualified 

refugee receive asylum.29

The Supreme Court has ruled that 

while UNHCR’s interpretation of (or 

recommendations regarding) the 

Refugee Convention and Refugee 

Protocol, such as set forth in the 

UNHCR Handbook, ‘‘may be a useful 

interpretative aid,’’ 30 it is not binding 

on the U.S. government, recognizing 

that ‘‘[i]ndeed, the Handbook itself 

disclaims such force, explaining that 

‘the determination of refugee status 

under the [Refugee] Convention and the 

[Refugee] Protocol . . . is incumbent 

upon the Contracting State in whose 

territory the refugee finds himself.’ ’’ 31

The Universal Declaration of Human 

Rights is a non-binding instrument, not 

an international agreement; thus, it does 

not impose obligations on the United 

States.32 Moreover, although it 

proclaims the right of ‘‘everyone’’ to 

‘‘seek and to enjoy’’ asylum, it does not 

purport to state specific standards for 

establishing asylum eligibility, and it 

certainly cannot be read to impose an 

obligation on the United States to grant 

asylum to ‘‘everyone.’’ 33

The Departments do not agree with 

the commenters’ assertions that the rule 

is inconsistent with the International 

Health Regulations. This rule 

implements the immigration authorities 

of the Departments with respect to 

eligibility for asylum and withholding 

of removal, rather than any public 

health authorities. Specifically, the rule 

clarifies the Departments’ 

understanding of the bars to eligibility 

for asylum and withholding of removal 

based on their being reasonable grounds 

for regarding or believing an alien to be 

a danger to the security of the United 

States. The International Health 

Regulations do not purport to address or 

govern asylum eligibility, and the 

regulations specifically exclude 

‘‘security measures’’ from the definition 

of ‘‘health measures.’’ 34 Accordingly, 

the Departments believe the rule is 

sufficiently tailored to permit the U.S. 

government to implement 

recommendations stemming from the 

International Health Regulations in 

concert with the application of the 

danger to security of the United States 

bars to asylum and withholding of 

removal in contexts where the Secretary 

and Attorney General determine, in 

consultation with the Secretary of 

Health and Human Services, per the 

framework established by this rule, such 

recommendations are insufficient to 

ensure the security of the United States. 

Likewise, the Departments disagree that 

the International Health Regulations 

otherwise bind the Departments from 

employing this statutory authority. 

The Departments are not making 

changes to the final rule in response to 

these comments. 

Unaccompanied Alien Children and the 

Trafficking Victims Protection 

Reauthorization Act of 2008 

Comment: Several commenters 

expressed concern about the proposal’s 

impact on unaccompanied alien 

children (UAC). Some commenters 

noted protections provided for UAC by 

the Trafficking Victims Protection 

Reauthorization Act of 2008 (‘‘TVPRA’’), 

which they argue demonstrates a 

general intent by Congress to protect 

UAC. A legal services provider 

described details of the TVPRA’s 

provisions requiring UAC whom DHS 

seeks to remove to be placed into 

removal proceedings under section 240 

of the INA, 8 U.S.C. 1229a (‘‘section 240 

proceedings’’), rather than into 

expedited removal proceedings, and 

mandating that asylum officers within 

DHS exercise initial jurisdiction over 

asylum applications filed by UAC. The 

commenter wrote that the proposed rule 

could undermine Congress’ intent and 

deprive UAC of access to benefits such 

as Special Immigrant Juvenile 

classification. Another commenter 

argued that turning away children at the 

border, even if they are assessed to have 

been exposed to a covered disease, 

would be in violation of TVPRA, adding 

that they must be transferred to Office 

of Refugee Resettlement custody and 

offered the ability to seek protection 

from removal. An advocacy group 

commented that the proposal could 

deny statutorily-protected due process 

rights to UAC, writing that the 

possibility of a UAC being barred from 

asylum on the basis of passing through 

a country, despite being exempted by 

Congress from a bar ‘‘related to the 

availability of protection’’ in the same 

country, would be absurd. It stated that 

other immigration law provisions 

related to public health or medical 

examination do not bar eligibility for 

humanitarian or TVPRA protections. It 

further argued that while it is true that 

the INA exempts UAC from expedited 

removal proceedings, and thus that they 

cannot be expelled from the United 

States before they have the opportunity 

to make their case, the proposed rule 

would still remove UAC’s due process 

protections and subject them to 

refoulement. Commenters argued that 

the NPRM is contrary to the best 

interests of children generally, 

contravening State child welfare laws 

and the Convention on the Rights of the 

Child. The campaign argued that the 

proposal would violate UAC’s right to 

safety by returning them to abusers, 

persecutors, and traffickers for reasons 

outside of their control. 

Response: It is certainly true that not 

all of the statutory bars to the right to 

apply for asylum are applicable to UAC 

(including INA section 208(a)(2)(A) 

regarding aliens who can be removed to 

a safe third country pursuant to a 

bilateral or multilateral agreement and 

INA section 208(a)(2)(B) regarding 

aliens who file asylum applications 

more than one year of their arrival). 

That said, nothing in this rule negates 

the statutory rights and protections of 

UAC, including under the TVPRA. For 

instance, UAC retain the right to apply 

for asylum notwithstanding section 

208(a)(2)(A)–(B) of the INA. INA 

208(a)(2)(E). Notably, however, Congress 

did not exempt UAC from any of the 

statutory bars to asylum eligibility. As a 

result, UAC seeking asylum, like all 

other asylum seekers, are ineligible for 

asylum if they are subject to any of the 

mandatory bars at section 

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

1158(b)(2)(A)(i)–(vi)—including the 

danger to the security of the United 

States bar—and if subject to any 

additional bars implemented pursuant 

to the Attorney General’s and the 


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35EOIR, 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. 

36 98 Cong. Rec. 4423 (April 25, 1952). 

37 Id. 

38 19 I&N Dec. 467 (BIA 1987). 

39Moreover, the Supreme Court has determined 

that in assessing the ‘‘serious nonpolitical crime’’ 

bar to eligibility for withholding of removal, 

adjudicators need not weigh the risk of persecution 

in determining the applicability of that bar, finding 

that ‘‘[a]s a matter of plain language, it is not 

obvious that an already-completed crime is 

somehow rendered less serious by considering the 

further circumstance that the alien may be subject 

to persecution if returned to his home country.’’ 

INS v. Aguirre-Aguirre, 526 U.S. at 426. 

Secretary’s authority to establish 

additional limitations on asylum 

eligibility by regulation. INA 

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

Unfortunately, UAC are not immune 

from pandemic disease, and those 

bringing such a disease to the United 

States would have the same impact on 

the security of the United States as any 

other aliens seeking asylum. 

The rule also does not curtail any 

other rights or protections to which 

UAC are entitled under statute. As 

commenters note, UAC from contiguous 

territories may withdraw their 

applications for admission and 

voluntarily return if it is determined 

that they are not at risk of trafficking or 

persecution and that they are capable of 

making an independent decision to 

withdraw. 8 U.S.C. 1232(a)(2). All 

federal agencies must transfer UAC to 

HHS custody within 72 hours of 

determining their UAC status (absent 

exigent circumstances). 8 U.S.C. 

1232(b)(3). UAC from non-contiguous 

countries whom DHS seeks to remove 

must be placed in section 240 

proceedings, 8 U.S.C. 1232(a)(5)(D), 

where they can pursue asylum or any 

other relief or protection for which they 

may be eligible and where immigration 

judges may make some modifications to 

ordinary courtroom proceedings to 

account for their status.35 If UAC do 

apply for asylum, including after they 

have been placed into section 240 

proceedings, USCIS has initial 

jurisdiction over their claims. INA 

208(b)(3)(C). As UAC are not amenable 

to expedited removal, they will not be 

impacted by the reforms to the 

expedited removal process contained in 

this rule. 

Thus, the Departments are not making 

changes to the final rule in response to 

these comments. 

Public Health Service Act of 1944 

Comment: A legal services provider 

argued that the proposed rule is not 

supported by the Public Health Service 

Act of 1944 (‘‘PHSA’’). The commenter 

wrote that, as an initial matter, the 

Centers for Disease Control and 

Prevention’s reliance on that statute in 

ordering the expulsion of certain aliens 

is improper. The commenter cited 

articles in arguing that PHSA is a 

quarantine law and not an immigration 

law, and thus that it can only be used 

for the suspension of entry without 

regard for immigration status rather than 

as an ‘‘extrajudicial deportation 

system.’’ 

Response: The authority for this rule 

is contained in title 8 of the U.S. Code’s 

INA, not title 42’s PHSA. The rule is 

intended to clarify and operationalize 

the Departments’ understanding of INA 

208(b)(2)(A)(iv) and 241(b)(3)(B)(iv). 

Accordingly, arguments regarding the 

propriety of the use of the PHSA for 

expulsions is outside the context of this 

rule. The Departments are not making 

changes to the final rule in response to 

these comments. 

The Departments would also note that 

when Congress created the INA a mere 

eight years after the enactment of the 

PHSA, it explicitly considered and 

affirmed the use of the INA to protect 

the nation from pandemic diseases 

(though in the context of a different 

provision, as asylum and withholding of 

removal in their current forms would 

not exist for many years). On April 25, 

1952, during House floor consideration 

of H.R. 5678, to be enacted as the 

(McCarran-Walter) Immigration Act of 

1952, the bill’s author, Francis Walter, 

entered into a debate regarding 

Abraham Multer’s amendment (which 

was decisively defeated) to limit the 

bill’s grant to the President of the power 

to bar the entry of aliens (now found at 

INA section 212(f)). Mr. Multer stated 

that: 

As the bill is presented, we find a 

provision . . . which provides that at any 

time the President finds the entry of any 

aliens or class of aliens would be detrimental 

to the interests of the United States he may 

by proclamation suspend the entry of those 

aliens. The first part of my amendment 

simply provides that instead of being able to 

do that at any time, the President may make 

a proclamation and effectuate such a 

suspension only in the event of a national 

emergency, or a state of war.36

Mr. Walter responded that: 

I rise in opposition to the amendment 

. . . . [T]his language ‘‘whenever the 

President finds that the entry of any aliens 

or class of aliens in the United States would 

be detrimental to the interests of the United 

States’’ is absolutely essential because when 

there is an outbreak of an epidemic in some 

country, whence these people are coming, it 

is impossible for Congress to act. People 

might conceivably in large numbers come to 

the United States and bring all sorts of 

communicable diseases with them. . . . In 

the judgment of the committee, it is advisable 

at such times to permit the President to say 

that for a certain time we are not going to 

aggravate that situation.37

Other Comments Concerning Legal 

Authority 

Comment: One commenter stated that 

‘‘the danger of persecution should 

generally outweigh all but the most 

egregious of adverse factors’’ and that 

the proposal fails to operate by this 

principle. Another cited 2011 U.S. 

Immigration and Customs Enforcement 

(‘‘ICE’’) guidance and emphasized that 

that guidance interpreted the public 

health removal priority narrowly and 

only when ‘‘articulable’’ public safety 

issues were present. The commenter 

also cited a 2014 DHS memorandum as 

providing that immigrant health 

concerns should result in the delay, 

rather than expedition, of removal 

proceedings. One commenter stated 

that, under the INA, asylum seekers 

cannot be penalized where their country 

is unable or unwilling to protect them 

from persecution. The commenter 

argued that the proposed rule would 

impute the failure of a country to 

contain an outbreak to an individual 

and thus contravene this principle. 

Response: The principle that the 

danger of persecution should generally 

outweigh all but the most egregious of 

adverse factors derives from the Board 

of Immigration Appeals decision in 

Matter of Pula,38 which addressed the 

exercise of discretion to grant or deny 

asylum to an applicant who had already 

established eligibility for asylum. This 

final rule, however, addresses a quite 

distinct question by clarifying the 

Departments’ understanding of the 

mandatory bars to eligibility for asylum 

(and withholding of removal), not an 

asylum officer’s or immigration judge’s 

exercise of discretion once an applicant 

establishes such eligibility. If there are 

reasonable grounds for regarding or 

believing an applicant to be a danger to 

the security of the United States, he or 

she is statutorily ineligible for asylum 

and withholding of removal, and the 

adjudicator would not have the 

discretion to grant either form of 

protection.39

The ICE guidance concerning removal 

priorities and the DHS memorandum 

cited by the commenter are unrelated to 

eligibility for asylum or withholding of 

removal or the interpretation of the 


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statutory bars for aliens for whom there 

are reasonable grounds for regarding or 

believing are dangers to the security of 

the United States. Finally, the rule seeks 

to mitigate the risk of a serious 

communicable disease being brought to 

the United States, or being further 

spread within the country, by clarifying 

that such public health threats must be 

considered when determining whether 

there are reasonable grounds for 

regarding or believing an alien to be a 

danger to the security of the United 

States. The rule does not seek to 

penalize asylum seekers for the action 

or inaction of another country, but is 

rather intended to safeguard the public 

health and the security of the United 

States. Accordingly, the Departments 

are not making changes to the final rule 

in response to these comments. 

2. Substantive Comments on Need/ 

Rationale for the Rule 

Comment: Many commenters 

provided input on the rationale for the 

proposed rule or other feedback on 

whether the rule is necessary to serve its 

stated goals. Several commenters 

claimed that its public health claims are 

specious. Many commenters claimed 

that the rule would block asylum 

eligibility on the pretext of a pandemic 

response, and that the rule improperly 

assigns a public health risk to asylumseekers. 

Commenters also expressed 

opposition on the basis that the rule 

contains no objective standard for 

applying the proposed health measures. 

Some suggested that the rule should 

take into account the availability of 

effective treatments in applying the 

bars. One criticized the rule for not 

taking into account whether a disease is 

more prevalent in the United States than 

in the asylum seeker’s country of origin 

and that this oversight undermines the 

rule’s rationale. Another requested 

information about the empirical basis 

for the rule, including the number of 

asylum seekers who have brought 

contagious diseases into the United 

States, the source of that data, the effects 

of those diseases on the general 

population, and how such a disease 

could spread in the process of detention 

and deportation, and argued that 

limiting asylum can only be justified by 

compelling answers to these inquiries. 

Likewise, a few individual commenters 

stated that the Departments must prove 

that asylum seekers and other 

immigrants embody a substantial and 

direct threat to U.S. health and safety 

during a pandemic. 

Multiple commenters said that the 

Departments’ justification for the rule is 

at odds with the administration’s 

messaging regarding the severity of the 

COVID–19 pandemic within the United 

States. 

Some commenters mischaracterized 

the rule as a travel ban rather than a 

clarification as to bars to asylum and 

withholding of removal eligibility. 

These commenters stated that the 

rationale for the rule is flawed because 

it limits nonessential travel across the 

southern border and denies entry to 

asylum seekers arriving by land, but 

grants broad exceptions for travel by 

U.S. citizens, lawful permanent 

residents, and people engaged in trade 

or education. The commenters believe 

that other individuals traveling across 

the border are just as likely to transmit 

COVID–19, and therefore questioned the 

Departments’ logic in creating the 

danger to the security of the United 

States bars. 

Many commenters claimed that the 

public health objectives of the proposed 

rule could be achieved through 

alternative means without affecting 

aliens’ eligibility to receive asylum or 

withholding of removal. These 

commenters stated that the United 

States has existing procedures to 

address communicable diseases without 

targeting asylum eligibility. A few 

commenters argued that COVID–19 can 

be managed through sensible policies, 

including implementing quarantine 

policies, social distancing, testing, 

education and trainings, medical 

treatment, use of personal protective 

equipment, and contact tracing, citing 

the advice of public health experts. 

Similarly, a commenter suggested that 

additional legal representation and 

medical services at the border should be 

considered instead of this rule. 

Many commenters suggested 

eliminating or altering detention 

policies, or improving conditions of 

detention, instead of implementing the 

rule. Some argued that the Departments’ 

rationale that asylum seekers held in 

congregate settings pose a risk to staff 

and other detainees is pretextual 

because the Federal Government has the 

discretion and authority to release 

asylum seekers and unaccompanied 

minors from custody. These 

commenters proposed reducing the 

population of aliens in detention centers 

by releasing aliens on bond and 

encouraging them to stay with friends 

and family (some citing data stating that 

92 percent of asylum seekers have 

friends and family in the United States 

with whom they could shelter) in lieu 

of the proposed rule. Commenters also 

claimed that communicable diseases are 

often designated as public health threats 

because they require timely diagnosis, 

treatment, and contact tracing, but the 

rule does not include provisions for an 

appropriate public health response 

(such as testing, treatment, and contact 

tracing where appropriate). Other 

commenters argued the proposed rule is 

pretextual because UAC are currently 

being released by ICE only after they test 

negative for COVID–19, citing a recent 

news publication. 

Many commenters compared the 

proposed rule to other countries’ 

responses to the COVID–19 pandemic, 

stating that other countries have 

adopted immigration policies that 

protect against the pandemic without 

eliminating eligibility for asylum 

protection. Several commenters said 

these countries prove that asylum 

seekers can be safely processed during 

a pandemic by adopting enhanced 

health measures and quarantine 

requirements. Another commenter 

argued that the proposal cannot be 

justified by a lack of COVID–19 testing 

capacity in the United States. 

Many commenters stated that COVID– 

19 is not a reasonable basis for the 

proposed restrictions on asylum because 

the United States has one of the highest 

per capita infection and mortality rates 

for COVID–19, belying the proposed 

rule’s claim to protect Americans from 

COVID–19. Commenters cited data 

showing that some countries, including 

Canada and Mexico, have fewer COVID– 

19 cases than the United States, arguing 

that the rule is unnecessary because 

United States poses the greater threat of 

spreading COVID–19. Several 

commenters said that the United States’ 

COVID–19 high infection rate makes 

removing asylum seekers to other 

countries a significant public health 

threat to other countries and to asylum 

seekers themselves. 

Some commenters added that the 

diseases listed in the rule do not pose 

a risk to the general public or are not 

subject to U.S. quarantine laws. Other 

commenters argued that regulations to 

control the spread of disease should not 

apply to treatable conditions, especially 

the ones that do not pose a significant 

health risk to the public. 

A commenter claimed that the fact 

that the rule creates a judicial review 

process is evidence that the proposed 

rule uses public health as a pretext to 

deny asylum and withholding of 

removal. This commenter argued that 

because asylum seekers often remain in 

detention for longer than the prescribed 

7 to 10 days for judicial review, aliens 

would remain at risk to contract or 

spread disease during this prolonged 

time period. The commenter concluded 

the proposed rule is an ineffective 

protection against the spread of disease. 


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40 Matter of A–H-, 23 I&N Dec. at 788. 

41 Id. 

42 518 F.3d 185 (3rd Cir. 2008) (as amended Mar. 

27, 2008). 

43 Id. at 204. 

44 Id. 

45Courts routinely recognize the CDC’s public 

health expertise. See, e.g., Bragdon v. Abbott, 524 

U.S. 624, 650 (1998) (‘‘the views of public health 

authorities, such as the U.S. Public Health Service, 

CDC, and the National Institutes of Health, are of 

special weight and authority’’); In re Approval of 

Judicial Emergency Declared in Eastern District of 

California, 956 F.3d 1175, 1181 (9th Cir. 2020) 

(determining that it would not be safe to resume 

normal court operations until ‘‘the CDC lifts its 

guidance regarding travel-associated risks and 

congregate settings and physical distancing’’); and 

Hickox v. Christie, 205 F. Supp. 3d 579, 598–99 

(D.N.J. 2016) (relying on CDC recommendations to 

determine the legality of state-mandated quarantine 

in light of the risk of Ebola posed by persons 

entering the United States after treating Ebola 

patients). 

46Control of Communicable Diseases; Foreign 

Quarantine: Suspension of the Right To Introduce 

and Prohibition of Introduction of Persons Into 

United States From Designated Foreign Countries or 

Places for Public Health Purposes, 85 FR 56424, 

56433 (final rule) (September 11, 2020). 

47 Id. 

48Order Suspending the Right To Introduce 

Certain Persons From Countries Where a 

Quarantinable Communicable Disease Exists, 85 FR 

65806, 65807 (October 16, 2020) (notice). 

Another commenter stated that the 

proposed rule cannot be justified by the 

length of the adjudication process for 

asylum seekers. The organization 

asserted that the DOJ’s own policies 

contribute to the immigration court 

backlog, including increasing the 

number of respondents in removal 

proceedings and changing policies for 

asylum seekers who are eligible for 

bond. The commenter concluded that 

the Departments should not use the 

consequences of their policies as the 

basis for banning the same asylum 

seekers from humanitarian relief. 

Response: The Departments disagree 

that the rule lacks an objective basis for 

applying the danger to the security of 

the United States bars to asylum and 

withholding of removal. This rule 

specifically provides that aliens whose 

entry poses a public health danger to the 

United States constitute a ‘‘danger to the 

security of the United States’’ and thus 

are ineligible for asylum or withholding 

of removal protections in the United 

States under INA 208 and 241, 8 U.S.C. 

1158 and 1231, and 8 CFR 208.16 and 

1208.16. The bars apply to aliens whose 

entry poses a heightened risk of bringing 

into the United States or further 

spreading within our country serious 

contagious diseases, posing a danger to 

the security of the United States, during 

times of declared public health 

emergencies in the United States or 

because of conditions in their country of 

origin or point of embarkation to the 

United States. More specifically, the 

bars apply in certain delineated 

instances after a communicable disease 

has triggered an ongoing declaration of 

a public health emergency under 

Federal law. They also apply after the 

Secretary and the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, have 

jointly determined that the physical 

presence in the United States of aliens 

who are coming from areas of the world 

where a communicable disease of public 

health significance is or was prevalent 

or epidemic would cause a danger to the 

public health in the United States, and 

they consequently jointly designated the 

relevant areas and the period of time or 

circumstances under which it is 

necessary for the public health that 

aliens or classes of aliens who have 

come from those areas (and are still 

within the number of days equivalent to 

the longest known incubation and 

contagion period for the disease) be 

regarded as a danger to the security of 

the United States. The Departments note 

that many comments referred to factors 

or facts specific to the ongoing COVID– 

19 pandemic, but that the rule is 

intended to address future pandemics 

and is not limited to current 

circumstances. 

These factors are consistent with the 

Attorney General’s determination that 

‘‘danger to the security of the United 

States’’ in the context of the bar to 

eligibility for withholding of removal 

encompasses considerations of defense, 

foreign relations, and the economy.40 In 

that decision, the Attorney General 

made clear that the ‘‘nontrivial degree of 

risk’’ standard is satisfied where there is 

a reasonable belief that an alien poses a 

danger.41 In Yusupov v. Attorney 

General,42 the Third Circuit determined 

that the Attorney General’s 

understanding that the bar to eligibility 

for statutory withholding of removal 

‘‘applied to any ‘nontrivial level of 

danger’ or ‘nontrivial degree of risk’ to 

U.S. security’’ was a reasonable 

interpretation of the INA, and the court 

deferred to the Attorney General in 

upholding that statutory interpretation. 

The court explained that the eligibility 

bar ‘‘does not easily accord acceptable 

gradations, as almost any ‘danger’ to 

U.S. security is serious.’’ 43 It concluded 

that ‘‘Congress did not announce a clear 

intent that the danger to U.S. security be 

‘serious’ because such a modifier likely 

would be redundant. . . . [I]t would be 

illogical for us to hold that Congress 

clearly intended for an alien to be nonremovable if he poses only a moderate 

danger to national security.’’ 44 As 

discussed in detail in the NPRM and 

above, epidemics and pandemics, such 

as the COVID–19 crisis, pose a danger 

to the United States. 

The Departments disagree with 

commenters who stated that to be barred 

from eligibility asylum or withholding 

of removal under this rule, the 

Departments must prove that an alien 

poses a substantial and direct threat to 

the health and safety of the United 

States residents during a pandemic. As 

explained above, the Attorney General 

has clarified that the appropriate 

standard to apply is a ‘‘nontrivial degree 

of risk.’’ Pandemics such as COVID–19 

can cause serious illness or death on a 

mass scale, and inflict serious, or even 

catastrophic, damage to the country’s 

economy, and thus, to the security of 

the United States. 

Applying the danger to the security of 

the United States bars to eligibility for 

asylum and withholding of removal is 

necessary to reduce health and safety 

dangers to DHS personnel and to the 

public. On this, the Departments defer 

to the expertise of the CDC,45 which has 

determined that the introduction into 

Border Patrol stations and POEs of those 

aliens traveling from Canada and 

Mexico who are usually held for 

‘‘material lengths of time’’ in the 

congregate areas of these facilities 

‘‘increases the serious danger of 

introducing COVID–19 to others in the 

facilities—including DHS personnel, 

U.S. citizens, U.S. nationals, and LPRs, 

and other aliens—and ultimately 

spreading COVID–19 into the interior of 

the United States.’’ 46 The CDC based its 

assessment on the fact that: 

[T]here are structural and operational 

impediments to quarantining and isolating 

[such] aliens in CBP facilities that neither 

HHS/CDC nor CBP can overcome, especially 

given the large number of [such] aliens that 

move through the congregate areas of the 

facilities. Border Patrol stations and POEs 

were designed for short-term holding of 

individuals in congregate settings [and were] 

not designed and equipped with sufficient 

interior space or partitions to quarantine 

potentially infected persons, or isolate 

infected persons. They also are not equipped 

to provide on-site care to infected persons 

who present with severe disease.47

CDC laid out the consequences of 

placing such aliens CBP facilities: 

The public health risks . . . include 

transmission and spread of COVID–19 to CBP 

personnel, U.S. citizens, lawful permanent 

residents, and other persons in the POEs and 

Border Patrol stations; further transmission 

and spread of COVID–19 in the interior; and 

the increased strain that further transmission 

and spread of COVID–19 would put on the 

United States healthcare system and supply 

chain during the current public health 

emergency.48


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49Control of Communicable Diseases; Foreign 

Quarantine: Suspension of the Right To Introduce 

and Prohibition of Introduction of Persons Into 

United States From Designated Foreign Countries or 

Places for Public Health Purposes, 85 FR at 56455. 

50 Id. at 56526. 

51 Id. 

52 Id. at 56433. The CDC noted that ‘‘the Federal 

government no longer operates Public Health 

Service hospitals capable of acting as dedicated 

quarantine and isolation facilities able to house 

hundreds of people for multiple weeks. The 

securing of sites was challenging because when the 

agencies identified suitable facilities, local officials 

sometimes objected to the use of the facilities.’’ Id. 

at 56430. 

53 Id. at 56433–34 n.70. 

54 Id. at 56426. 

55 In Matter of X-K-, 23 I&N Dec. 731, 736 (BIA 

2005), the BIA concluded that arriving aliens at 

POEs found to have a credible fear and placed into 

section 240 proceedings were subject to mandatory 

detention, but those apprehended between POEs 

were eligible for bond. The Attorney General 

overruled Matter of X-K- in Matter of M-S-, 27 I&N 

Dec. 509 (A.G. 2019), and determined that all aliens 

found to have a credible fear were subject to 

mandatory detention (and thus only releasable on 

parole). However, in Padilla v. ICE, 953 F.3d 1134, 

1143 (9th Cir. 2020) (petition for cert. filed Aug. 24, 

2020), the Ninth Circuit upheld a district court’s 

grant of a nationwide preliminary injunction 

requiring, in part, that all aliens found to have a 

credible fear be eligible for a bond hearing and 

possible release (not through parole) on bond. 

56Enforcement and Removal Operations, ICE, 

U.S. Immigration and Customs Enforcement Fiscal 

Year 2019 Enforcement and Removal Operations 

Report at 10. Alien fugitives are those who had 

failed to leave the United States based upon a final 

order of removal or who had failed to report to ICE 

after receiving notice to do so. Id. at 10 n.9. 

The Departments have also 

considered the array of alternatives 

commenters argued the Departments 

could implement to reduce the risk of 

aliens spreading communicable disease 

in the United States. The Departments 

disagree that the rule is unnecessary 

because of the availability of the 

alternatives posed, which include 

quarantines, social distancing, testing, 

education and trainings, medical 

treatment, use of personal protective 

equipment, and contact tracing. 

In the context of COVID–19, the CDC 

has already determined these 

alternatives to not be sufficient to 

adequately protect the public health. 

The CDC has determined that 

‘‘quarantine, isolation, and conditional 

release are still not workable options on 

the scale that would be needed for 

protecting U.S. public health from the 

introduction of COVID–19’’ 49 and that 

‘‘Federal Orders requiring the 

quarantine, isolation, or conditional 

release of persons arriving into the 

United States from foreign countries 

may be inadequate to protect public 

health from the serious danger of the 

introduction into the United States of a 

quarantinable communicable 

disease.’’ 50

As to quarantines, the CDC has 

concluded that: 

Federal quarantine and isolation . . . 

where HHS/CDC funds and operates 

residential facilities with 24-hour wraparound services for persons arriving into the 

United States from a foreign country may be 

scalable and effective for hundreds of 

persons, but not thousands of them. Even 

then, Federal quarantine and isolation 

require substantial resources and are not 

sustainable for extended periods of time.51

A Federal quarantine and isolation of 

covered aliens would have likely required 

the procurement or construction and 

equipping of numerous permanent or 

temporary facilities across the Northern and 

Southern land borders, in close proximity to 

the POEs and Border Patrol stations. The 

facilities would have to accommodate a 

rotating population of covered aliens— 

including family units, single adults, and 

children with varying countries of origin, 

social customs, and criminal histories—for 

the duration of each covered alien’s 

quarantine or isolation period. During that 

period, HHS/CDC and CBP would have to 

shelter, feed, and provide medical services to 

each covered alien onsite. The burden of 

undertaking such a joint public health and 

safety mission across thousands of miles of 

territory during a pandemic is impracticable. 

[T]o the knowledge of HHS/CDC, the largest 

Federal quarantine and isolation operation in 

modern U.S. history is the one that HHS/CDC 

and other agencies conducted in early 2020 

[in response to COVID–19] for the 

approximately 3,200 persons who 

disembarked from cruise ships in U.S. ports 

or were repatriated from Asia. That operation 

would have been dwarfed by an ongoing 

quarantine and isolation mission for covered 

aliens. . . . HHS/CDC and CBP could not 

have . . . . quarantined or isolated a daily 

average population of 3,292 covered aliens 

from March 21, 2020 to the present. The 

relevant agencies simply lack the personnel 

and resources to operate such a large and 

complex Federal quarantine and isolation 

program, spread over thousands of miles of 

territory, and a period of many months, 

during a global pandemic. This is especially 

true when HHS/CDC and CBP must prioritize 

their finite resources for the benefit of the 

public health and safety, respectively, of the 

domestic population.52

The Departments also disagree with 

suggestions that increased testing of 

aliens could serve as an adequate 

alternative to the rule. In many cases, it 

is not possible to know whether an 

individual is infected at the time of 

processing or apprehension. Where 

testing is available, the time frame 

required to obtain test results may both 

be operational unfeasible and expose 

DHS officers, other aliens, and domestic 

communities to possible infection while 

results are pending. The CDC concluded 

that: 

HHS/CDC considered whether it could 

avert the serious danger of the introduction 

of COVID–19 into CBP facilities through 

COVID–19 testing. Specifically, HHS/CDC 

considered the asymptomatic transmission of 

COVID–19; the lack or limited availability of 

diagnostic testing for COVID–19; the time 

required to obtain diagnostic test results; the 

need to prioritize testing resources for the 

domestic population . . . . In any pandemic 

caused by a novel virus that spreads 

asymptomatically there will be a period 

when diagnostic testing is not widely 

available due to the time necessary to create, 

manufacture, distribute, administer, and 

receive the results of diagnostic tests. Even 

then, it may be appropriate to prioritize 

diagnostic testing for some populations over 

others, and diagnostic testing may produce at 

least some false negatives.53

In congregate settings, travelers infected 

with a quarantinable communicable disease 

(whether asymptomatic or symptomatic) may 

spread the disease to other travelers or 

government personnel or private sector 

workers who may, in turn, spread disease to 

the domestic population. In such a scenario, 

the subsequent separation of the original, 

infected traveler would not mitigate the 

spread of disease through other individuals 

who interacted with the traveler in the 

congregate setting.54

The Departments disagree with 

commenters’ suggestions that public 

health interests would be better served 

if the Departments eliminated detention 

pending proceedings. The INA requires 

that all aliens placed into expedited 

removal proceedings are subject to 

mandatory detention from the 

commencement of proceedings until 

their credible fear interviews, INA 

235(b)(1)(B)(iii)(IV), subject to 

mandatory detention if found not to 

have a credible fear, id., and also subject 

to mandatory detention if found to have 

a credible fear ‘‘for further consideration 

of their application for asylum’’ in 

asylum-and-withholding-only 

proceedings. Such aliens can be 

released by paroling them pursuant to 

section 212(d)(5) of the INA or on 

bond.55 As explained in the NPRM, 

once a non-detained alien is placed into 

such proceedings, it can be months or 

years before their cases are adjudicated, 

as immigration courts in EOIR have a 

backlog of more than 1,000,000 pending 

cases, at least 517,000 of which include 

an asylum application. Of those 

released, many simply abscond without 

pursuing their asylum claims. There 

were 595,430 fugitive aliens at the end 

of fiscal year 2019.56 In 2003, DOJ’s 

Inspector General issued a report that 

found that the former INS had 

successfully carried out removal orders 

with respect to only 13 percent of nondetained aliens who were subject to 

final removal orders—and was able to 

remove only three percent of nondetained aliens who had unsuccessfully 


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84170 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

57Office of the Inspector General, Evaluation and 

Inspections Division, DOJ, The Immigration and 

Naturalization Service’s Removal of Aliens Issued 

Final Orders (I–2003–004) at i, ii (2003). 

58Mark Metcalf, U.S. Immigration Courts & 

Aliens Who Disappear Before Trial, 2019 Center for 

Immigration Studies at 1, 7–8 n.1–2. 

59Planning, Analysis & Statistics Division, EOIR, 

DOJ, Statistics Yearbook: Fiscal Year 2017, at 33 

(figure 25). 

60Control of Communicable Diseases; Foreign 

Quarantine: Suspension of the Right To Introduce 

and Prohibition of Introduction of Persons Into 

United States From Designated Foreign Countries or 

Places for Public Health Purposes, 85 FR at 56452– 

53. 

61 Id. at 56454. 

62 Id. at 56456. 

63Sacora v. Thomas, 628 F.3d 1059, 1068 (9th 

Cir. 2010) (citing Motor Vehicle Mfrs Ass’n v. State 

Farm Mut. Auto Ins. Co, 463 U.S. 29, 43 (1983)). 

64 Id. at 1069. 

sought asylum.57 Recent initiatives to 

track family unit cases revealed that 

close to 82 percent of completed cases 

have resulted in an in absentia order of 

removal. It has been reported that 

EOIR’s immigration courts have higher 

failure to appear rates than any other 

state or federal courts in the country.58

In fiscal year 2017, 44 percent of never 

detained aliens, 41 percent of 

released aliens, and 49 percent of 

unaccompanied alien minors (who have 

generally been released to sponsors, 8 

U.S.C. 1232(c)(2)–(3)) who received 

removal orders received them in 

absentia for failing to appear.59 Even 

putting aside the issue of absconders, 

releasing aliens with a communicable 

disease from detention merely transfers 

the risk from DHS officers and other 

detainees to the general public. 

The Departments also reject the 

notion of stopping or reducing the 

enforcement of immigration laws as a 

means of reducing the strain on the 

nation’s immigration system. The 

solution is not to ignore the rule of law 

but to find ways to promote compliance 

with the law and to increase the 

efficiency of the nation’s immigration 

system. 

As to simply allowing aliens to reside 

with friends and family pending their 

asylum-and-withholding-only 

proceedings, this would reduce the 

transmission of disease within detention 

centers themselves. However, as the 

CDC concluded, such a practice would 

merely transfer the risk from DHS 

officers and other detainees to the 

general public and could exacerbate 

community spread within the interior. 

The CDC has also found that: 

[I]t is not reasonable to assume that all . . . 

aliens [entering the United States illegally or 

without proper documents, who would need 

to be placed in congregate setting,] can or 

will comply with conditional release orders 

or safely self-quarantine or self-isolate after 

introduction into the country. That has not 

been HHS/CDC’s experience with foreign 

nationals arriving in the United States on 

commercial flights, which require valid 

travel documents and clearance of customs. 

Even some foreign nationals who produce 

valid travel documents, fly internationally, 

and clear customs do not comply with selfquarantine or self-isolation protocols, or 

provide contact information to HHS/CDC for 

use in public health monitoring and contract 

tracing investigations. . . . Persons who are 

unprepared to comply with U.S. legal 

processes and lack transportation and a 

permanent U.S. residence would likely 

encounter difficulties complying with 

conditional release orders or self-quarantine 

or self-isolation protocols. For such orders or 

protocols to be effective, persons who HHS/ 

CDC temporarily apprehends and then 

conditionally releases with orders—or, 

alternatively, persons to whom HHS/CDC 

recommends self-quarantine or selfisolation—must be able to travel to suitable 

quarantine or isolation locations, and then 

quarantine or isolate for the time period 

prescribed or recommended by HHS/CDC. 

Many [aliens entering the United States 

illegally or without proper documents, who 

would need to be placed in congregate 

settings,] would have to overcome significant 

hurdles to meet those basic requirements. 

Moreover, implementation of conditional 

release orders for covered aliens would divert 

substantial HHS/CDC resources away from 

existing public health operations during the 

COVID–19 pandemic. . . . 

To implement conditional release orders 

for covered aliens, HHS/CDC would have to 

open and operate new quarantine stations at 

numerous Border Patrol stations and POEs, 

surge technical support to CBP at the same 

locations, or do some combination of both. 

HHS/CDC would also have to monitor the 

health of tens of thousands of . . . aliens 

introduced into the United States, and alert 

public health departments about any health 

issues that need follow-up. HHS/CDC does 

not have resources and personnel available to 

execute those additional functions; HHS/CDC 

would have to reallocate personnel from 

existing quarantine operations, which would 

jeopardize the effectiveness of those 

operations, endanger public health, and 

impose additional costs on U.S. taxpayers.60

Further, the Departments strongly 

disagree with comments that suggested 

the rule is pretextual, unnecessary, or 

ineffective because of the high rate of 

COVID–19 infections in the United 

States. Rather, the Departments defer to 

the expertise of the CDC, which has 

concluded that the introduction of 

additional cases, in addition to 

threatening the health and safety of DHS 

officers and other aliens, could 

exacerbate the spread of disease in the 

general public and further strain 

medical providers in many 

communities, presenting a serious threat 

to the security of the United States. As 

the CDC has stated, ‘‘even if persons or 

property in the United States are already 

infected or contaminated with a 

quarantinable communicable disease, 

the introduction of one or more 

additional persons capable of disease 

transmission in the same or different 

localities can nevertheless present a 

serious danger of the introduction of the 

disease into the United States’’ 61 and 

‘‘helping to slow the community 

transmission of COVID–19 and the 

number of new COVID–19 cases in the 

States in the U.S.-Mexico border region 

. . . helps protect the domestic 

population from COVID–19.’’ 62 For 

these reasons, the Departments see no 

need to provide additional empirical 

data, as requested by commenters, 

regarding the number of asylum seekers 

who have brought contagious diseases 

into the United States, the source of that 

data, the effects of those diseases on the 

general population, and how such a 

disease could spread in the process of 

deportation, including while an alien is 

in ICE custody. In addition, ‘‘arbitrary 

and capricious’’ review is ‘‘highly 

deferential, presuming the agency action 

to be valid.’’ 63 It is ‘‘reasonable for the 

[agency] to rely on its experience’’ to 

arrive at its conclusions, even if those 

conclusions are not supported with 

‘‘empirical research.’’ 64

The Departments also disagree with 

commenters who argued that the fact 

that other countries have not curtailed 

asylum eligibility because of the 

COVID–19 pandemic proves that the 

NPRM is unnecessary or pretextual. The 

Departments are utilizing longstanding 

authority under domestic law to 

mitigate the danger of aliens bringing 

into the United States or exacerbating 

the spread within the United States of 

a serious contagious disease and thereby 

mitigate a threat to the security of the 

United States. It is outside the scope of 

this rule to evaluate the availability of 

legal tools to foreign governments 

regarding restricting asylum eligibility 

based on a threat to the national 

security. Further, the Departments 

disagree with comments that state that 

the risk of spreading a contagious 

disease or illness to the alien’s home 

country or country of removal 

outweighs the Federal government’s 

interest in preventing or mitigating 

potentially catastrophic harm to the 

health and security of the United States 

or is even a relevant consideration in 

interpreting the applicability of section 

208(b)(2)(A)(iv) or section 

241(b)(3)(B)(iv) of the INA, which are 

solely focused on the danger to the 

security of the United States. As the 

CDC has concluded, the ‘‘faster a[n alien 

who will be placed in a congregate 

setting] is returned . . . the lower the 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84171 

65Notice of Order Under Sections 362 and 365 of 

the Public Health Service Act Suspending 

Introduction of Certain Persons From Countries 

Where a Communicable Disease Exists, 85 FR 

17060, 17067 (Mar. 20, 2020). 

66The current list of quarantinable communicable 

diseases is available at http://www.cdc.gov and 

http://www.archives.gov/federal-register. 

67 42 CFR 34.2(b). 

68When evaluating aliens’ eligibility for asylum 

and withholding of removal, this rule does not 

apply the public health bars to those aliens who file 

such an application upon return from Canada 

pursuant to the U.S.-Canada safe third country 

agreement. 

69 344 F. Supp.3d 96 (D.D.C. 2018), aff’d in part 

and vacated in part by Grace v. Barr, 965 F.3d 883 

(D.C. Cir. 2020). 

risk the alien poses of introducing 

transmitting, or spreading COVID–19 

into POEs, Border Patrol stations, other 

congregate settings, and the interior [of 

the United States].’’ 65

Some commenters opposed the NPRM 

because they believed that the diseases 

referred to in the NPRM do not present 

a significant risk to the general public or 

are treatable. To the contrary, the 

diseases are serious by any measure. 

The term ‘‘communicable disease of 

public health significance’’ includes any 

of the following diseases: 

(1) Communicable diseases as listed in a 

Presidential Executive Order, as provided 

under Section 361(b) of the Public Health 

Service Act....66

(2) Communicable diseases that may pose 

a public health emergency of international 

concern if it meets one or more of the factors 

listed in [42 CFR] § 34.3(d) and for which the 

Director has determined a threat exists for 

importation into the United States, and such 

disease may potentially affect the health of 

the American public. . . . 

(i) Any of the communicable diseases for 

which a single case requires notification to 

the World Health Organization (WHO) as an 

event that may constitute a public health 

emergency of international concern, or 

(ii) Any other communicable disease the 

occurrence of which requires notification to 

the WHO as an event that may constitute a 

public health emergency of international 

concern. . . . 

(3) Gonorrhea. 

(4) Hansen’s disease, infectious. 

(5) Syphilis, infectious. 

(6) Tuberculosis, active.67

Under section 1 of Executive Order 

13295, as amended: 

Based upon the recommendation of the 

Secretary of Health and Human Services 

. . ., in consultation with the Surgeon 

General . . . the following communicable 

diseases are hereby specified pursuant to 

section 361(b) of the [PHSA]: 

(a) Cholera; Diphtheria; infectious 

Tuberculosis; Plague; Smallpox; Yellow 

Fever; and Viral Hemorrhagic Fevers (Lassa, 

Marburg, Ebola, Crimean-Congo, South 

American, and others not yet isolated or 

named). 

(b) Severe acute respiratory syndromes, 

which are diseases [other than influenza] that 

are associated with . . . pneumonia or other 

respiratory illness, are capable of being 

transmitted from person to person, and that 

either are causing, or have the potential to 

cause, a pandemic, or, upon infection, are 

highly likely to cause mortality or serious 

morbidity if not properly controlled. . . . 

In addition, the bars will only apply 

(1) to communicable diseases that have 

triggered an ongoing declaration of a 

public health emergency under Federal 

law, and (2) where the Secretary and the 

Attorney General have, in consultation 

with HHS, jointly determined that, 

because a communicable disease of 

public health significance (in 

accordance with HHS regulations) is 

prevalent or epidemic in an area of the 

world, the physical presence in the 

United States of an alien or a class of 

aliens who have come from such area 

during a period in which the disease is 

or was prevalent or epidemic there 

would cause a danger to the public 

health in the United States, and have 

consequently designate the place, the 

period of time, or circumstances under 

which they deem it necessary for the 

public health that such alien or class of 

aliens be regarded as a danger to the 

security of the United States. The 

Departments believe this framework 

provides the Departments sufficient 

flexibility to apply the bars in cases of 

potential future pandemics or public 

health crises while ensuring that the 

bars are only applied in situations that 

present a public health crisis sufficient 

to threaten the security of the United 

States. 

In addition, the Departments disagree 

that the availability of treatment is an 

adequate marker to determine whether a 

contagious disease poses a threat to the 

security of the United States such that 

the bar to asylum and withholding of 

removal should apply. Treatment may 

only, and to a partial extent at that, 

ameliorate symptoms without curing a 

disease, and may be prohibitively 

expensive or resource-intensive. 

The Departments note that as to the 

‘‘judicial review protocol,’’ it is 

prescribed by statute and is not 

something the Departments created 

through regulation. Section 235(b) of the 

INA, 8 U.S.C. 1225(b), provides that: 

The Attorney General shall provide by 

regulation and upon the alien’s request for 

prompt review by an immigration judge of a 

determination . . . that the alien does not 

have a credible fear of persecution. Such 

review shall include an opportunity for the 

alien to be heard and questioned by the 

immigration judge, either in person or by 

telephonic or video connection. Review shall 

be concluded as expeditiously as possible, to 

the maximum extent practicable within 24 

hours, but in no case later than 7 days after 

the date of the determination . . . . 

The Departments disagree with 

comments suggesting that the rule’s 

rationale is flawed because the United 

States has been allowing certain classes 

of individuals to travel to the United 

States and because the rule does not 

apply to U.S. citizens, lawful permanent 

residents, and people engaged in trade 

and education. Of course, only aliens 

may receive asylum and withholding of 

removal. Aliens seeking asylum or 

withholding of removal, including 

aliens with a lawful immigration status, 

are subject to the bar, which the 

Departments have put in place to 

protect the United States from those 

who are determined to be a danger to 

the Nation’s security.68

Finally, the Departments disagree that 

protecting the security of the United 

States is inconsistent with the 

administration’s messaging regarding 

the COVID–19 pandemic and decline to 

further respond on the basis that such 

messaging is outside the scope of this 

rule. 

E. Proposed Changes to the Rule 

1. Clarifying Application of ‘‘Danger to 

the Security of the United States’’ Bars 

to Eligibility for Asylum and 

Withholding of Removal 

Categorical Nature of the Bars 

Comment: One commenter stated that 

denying asylum seekers ‘‘categorically’’ 

would contravene the intent of U.S. 

immigration law and especially the 

Refugee Act. Relying on the plain 

language of the statute, a legal services 

provider argued that the proposal 

exceeds its statutory authority by 

potentially barring, without time 

limitation, thousands of individuals on 

a class-wide basis who pose no risk to 

the United States. Similarly, a group of 

commenters cited Grace v. Whitaker,69

and an advocacy group provided 

citations to additional cases, in arguing 

that asylum determinations must be 

made on an individualized basis. Other 

commenters argued that no 

individualized determination would be 

possible under the NPRM as it instructs 

adjudicators that they ‘‘may consider’’ 

symptoms and travel history for a 

determination as to whether an alien is 

subject to the danger to the security of 

the United States bars and 

simultaneously instructs adjudicators 

that the Secretary of Homeland Security 

and the Attorney General have already 

‘‘deem[ed]’’ entire classes of individuals 

to be regarded as a danger to the 

security of the United States. More 

specifically, commenters argued that: 


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84172 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

70 512 F.3d 696, 699 (D.C. Cir. 2008) (citations 

omitted). 

71 478 F.2d 615, 632 n.51 (D.C. Cir. 1973). 

‘‘[p]roposed 8 CFR 208.13(c)(10) and 

1208.13(c)(10) do not provide clear 

guidance as to whether adjudicators are 

required to apply an individualized or 

a categorical bar, and in some 

circumstances appears to entirely 

remove discretion from adjudicators and 

require a blanket determination that a 

person be subject to the bar, without an 

individualized determination.’’ 

Response: The commenters raised a 

valid concern that the NPRM did not 

provide sufficiently clear guidance as to 

whether adjudicators are required to 

apply the proposed bars in an 

individualized or categorical fashion. Of 

course, all statutory bars to eligibility, 

including the danger to the security of 

the United States bars, for asylum and 

withholding of removal are 

‘‘categorical,’’ in that any alien to whom 

they apply is ineligible for asylum.’’ As 

to asylum, ‘‘[p]aragaph (1) [describing 

which aliens may be granted asylum] 

shall not apply to an alien if the 

[Secretary or the] Attorney General 

determines that . . . .’’ INA 

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

(emphasis added). As to withholding of 

removal, ‘‘[s]ubparagraph (A) 

[describing which aliens may not be 

removed to a country where their life or 

freedom would be threatened] does not 

apply to an alien . . . if the [Secretary 

or the] Attorney General decides that 

. . . .’’ INA 241(b)(3)(B), 8 

U.S.C.(b)(3)(B) (emphasis added). The 

parameters under which an alien is 

considered ineligible for asylum and 

withholding of removal in order to 

protect law enforcement officers and the 

public during a public health crisis are 

ones that should be decided by the 

Secretary and the Attorney General, 

taking into consideration the advice of 

governmental experts, not individual 

officials or adjudicators on an ad hoc 

basis. The role of individual officials 

and adjudicators should be to determine 

whether aliens in fact meet the criteria 

for ineligibility that have been set forth 

to protect our country. 

Therefore, the final rule clarifies that 

the bars established by the rule 

(implementing the Departments’ 

understanding of the danger to the 

security of the United States bars) are 

‘‘categorical’’ in the following manner. 

First, if a communicable disease has 

triggered an ongoing declaration of a 

public health emergency under Federal 

law, such as under section 319 of the 

Public Health Service Act, 42 U.S.C. 

247d, or section 564 of the Food, Drug, 

and Cosmetic Act, 21 U.S.C. 360bbb–3, 

then an alien is ineligible for asylum 

and withholding of removal (on the 

basis of there being reasonable grounds 

for regarding the alien as a danger to the 

security of the United States) if the alien 

either exhibits symptoms indicating that 

he or she is afflicted with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate, or 

has come into contact with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate. 

Second, if, regarding a communicable 

disease of public health significance as 

defined at 42 CFR 34.2(b), the Secretary 

and the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, have 

jointly 

• Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or who have 

embarked at a place or places where 

such disease is prevalent or epidemic 

(or had come from that country or 

countries (or one or more subdivisions 

or regions thereof), or had embarked at 

that place or places, during a period in 

which the disease was prevalent or 

epidemic there), would cause a danger 

to the public health in the United States, 

and 

• Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

the first bullet point who were present 

in an impacted region within the 

number of days equivalent to the longest 

known incubation and contagion period 

for the disease be regarded as a danger 

to the security of the United States, 

including any relevant exceptions as 

appropriate, 

Then, an alien or class of aliens are 

ineligible for asylum and withholding of 

removal (on the basis of there being 

reasonable grounds for regarding the 

alien or class of aliens as a danger to the 

security of the United States) if the alien 

or class of aliens are described in the 

first bullet point and are regarded as a 

danger to the security of the United 

States as provided in the second bullet 

point. 

While the discretionary/categorical 

distinction was not discussed in the 

NPRM, as the D.C. Circuit ruled in Nat’l 

Mining Ass’n v. Mine Safety and Health 

Admin: 

An agency’s final rules are frequently 

different from the ones it published as 

proposals. The reason is obvious. Agencies 

often ‘‘adjust or abandon their proposals in 

light of public comments or internal agency 

reconsideration.’’ . . . Whether in such 

instances the agency should have issued 

additional notice and received additional 

comment on the revised proposal ‘‘depends, 

according to our precedent, on whether the 

final rule is a ‘logical outgrowth’ of the 

proposed rule.’’ . . . While we often apply 

the doctrine simply by comparing the final 

rule to the one proposed, we have also taken 

into account the comments, statements and 

proposals made during the notice-andcomment period. . . . In South Terminal 

Corp. v. EPA, the case that gave birth to the 

‘‘logical outgrowth’’ formulation, the court 

did the same. 504 F.2d 646, 659 (1st Cir. 

1974). The court held that the final rule was 

‘‘a logical outgrowth’’-not simply of the 

proposed rule—but ‘‘of the hearing and 

related procedures’’ during the notice and 

comment period.70

As the Circuit had realized earlier in 

Int’l Harvester Co. v. Ruckelshaus,71 ‘‘[a] 

contrary rule would lead to the 

absurdity that in rule-making under the 

[Administrative Procedure Act] the 

agency can learn from the comments on 

its proposals only at the peril of starting 

a new procedural round of 

commentary.’’ 

As illustrated by the thoughtful 

comments the Departments received 

highlighting the need to clarify whether 

the NPRM was discretionary or 

categorical, the clarification in the final 

rule meets any ‘‘logical outgrowth’’ 

requirements under the APA. 

Applicability to Aliens Who Are 

Applying for Asylum or Withholding of 

Removal in the United States Upon 

Return From Canada (Pursuant to the 

Agreement Between the Government of 

the United States and the Government 

of Canada for Cooperation in the 

Examination of Refugee Status Claims 

From Nationals of Third Countries) 

Comment: Several commenters cited 

litigation in Canada surrounding the 

‘‘safe third country’’ agreement between 

the United States and Canada and noted 

that a Canadian federal court found the 

agreement to be unconstitutional. One 

commenter stated that if published, this 

final rule would further damage the 

reputation of the United States as a 

leader in providing humanitarian 

protection. 

Response: The Departments note that 

maintenance of the United States’ 

reputation as a leader in providing 

humanitarian protection must not 

eclipse the importance of maintaining a 

strong and effective safe third country 

agreement with our Canadian partners. 

Accordingly, this rule provides for an 

exemption for those aliens who apply 

for asylum or withholding of removal 

upon return from Canada to the United 

States pursuant to the U.S.-Canada safe 

third country agreement. 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84173 

72 Matter of A-H-, 23 I&N Dec. 774, 788 (A.G. 

2005). 

73 Malkandi v. Holder, 576 F.3d 906, 914 (9th Cir. 

2009). 

74 23 I&N Dec. at 788–89. 

75 Id. at 789 (citation omitted). 

Level of Danger Required To Invoke the 

Danger to Security Bars to Asylum and 

Withholding of Removal 

Comment: Several commenters 

argued, citing Yusupov v. Att’y Gen. of 

U.S., that the danger to the security of 

the United States bars to eligibility for 

asylum and withholding of removal may 

only be applied to an applicant who 

poses an ‘‘actual’’ threat rather than a 

possible or potential threat or to one 

who ‘‘may’’ pose a danger. The 

commenters contend that the rule is 

impermissibly broad because it applies 

the bars to those who do not actually 

carry a communicable disease, contrary 

to the actual threat standard. 

One commenter also wrote that 

Yusupov requires that security bars 

apply only in a narrow set of 

circumstances and that, given the 

widespread nature of the COVID–19 

pandemic even within the United 

States, the proposal contravenes this 

requirement. The commenter further 

asked that the Departments demonstrate 

how border enforcement personnel face 

a higher risk from asylum seekers than 

from others those officials regularly 

encounter in their own communities 

and how finding an applicant ineligible 

for asylum would reduce the risk to 

enforcement personnel. Another legal 

services provider wrote that the 

Departments’ focus on the probable 

cause standard is a ‘‘distraction’’ and 

cannot allow the Departments to rely on 

a potential risk rather than an actual one 

as the grounds for a security bar. A 

professional association expressed 

worry that the proposed rule could 

apply an asylum bar to an applicant on 

the basis of a probable cause standard 

and using evidence that does not meet 

the standard of admissibility for court 

proceedings. 

Additionally, commenters argued that 

the mere potential exposure of an 

asylum seeker to a disease or the 

untrained opinion of a non-expert 

adjudicator of a person’s symptoms 

could not provide a reasonable basis for 

barring the applicant from eligibility for 

asylum. 

Another commenter added that the 

threat posed by an individual asylum 

applicant’s health falls below the ‘‘nontrivial’’ standard set forth in Matter of AH-,72 arguing that the threat of migrants 

must be viewed individually. 

Response: The Departments fully 

acknowledge that an alien must actually 

pose the requisite level of danger, noting 

the Ninth Circuit’s conclusion that 

‘‘[t]he bottom line in Yusupov, which 

we adopt, is that . . . the alien must 

‘actually pose a danger’ to United States 

security . . . .’’ 73 However, as the 

Departments stated in the NPRM, it also 

must be recognized that the danger 

posed by aliens during a pandemic is 

unique. In many cases it will not be 

possible to know whether any particular 

individual is infected at the time of 

apprehension or application. As the 

CDC has explained, depending on the 

disease at issue, many individuals who 

are actually infected may be 

asymptomatic, reliable testing may not 

be available, and, even where available, 

the time frame required to obtain test 

results may both be operationally 

unfeasible and expose DHS officers, 

other aliens, and domestic communities 

to possible infection while results are 

pending. In conclusion, an alien who 

arrives from a location in which the 

spread of a communicable disease 

already poses a serious danger and who 

will need to be placed in a congregate 

setting represents on their own a danger 

to the security of the United States. 

Of course, this rule cannot eliminate 

all risk that border enforcement 

personnel may face in their 

communities related to a communicable 

disease of public health significance. It 

is not designed to do so, nor could it. 

The final rule is designed to ameliorate 

the specific risk identified by the CDC 

of their being placed in close personal 

contact in congregate settings with 

aliens at a heightened risk of infection. 

Finally, the Departments reject that 

reliance on the probable cause standard 

is a ‘‘distraction.’’ It is the legal standard 

set forth in binding precedent and is 

necessary to understand the ‘‘reasonable 

grounds’’ component of the danger to 

the security of the United States bars to 

eligibility for asylum and withholding 

of removal. In Matter of A-H-, the 

Attorney General determined that 

‘‘reasonable’’ in the context of the 

danger to the security of the United 

States bar to withholding of removal 

‘‘implied the use of a ‘reasonable 

person’ standard’’ that was 

‘‘substantially less stringent than 

preponderance of the evidence,’’ and 

instead akin to ‘‘probable cause.’’ 74 The 

standard ‘‘is satisfied if there is 

information that would permit a 

reasonable person to believe that the 

alien may pose a danger to the national 

security.’’ 75

Accordingly, the Departments are not 

making changes to the final rule in 

response to these comments. 

Public Health Concerns as a Basis for 

Finding ‘‘Danger to the Security of the 

United States’’ or Otherwise Bar 

Eligibility for Asylum 

Comment: Several commenters argued 

that public health concerns should not 

be a basis for denying asylum or for 

finding reasonable grounds for regarding 

an applicant to be a danger to the 

security of the United States. Some 

commenters argued that the rule 

exceeds the Departments’ authority, as 

only Congress can expand upon the 

‘‘danger to security’’ bar or define the 

bounds of asylum eligibility. 

Commenters contended that section 

208(b)(2)(C) of the INA does not give the 

Departments authority to add new bars 

to asylum eligibility and that the INA 

unambiguously defines ‘‘dangers to the 

security of the United States’’ without 

reference to public health and thus that 

the NPRM is an unlawful attempt to 

expand the statute. 

Commenters also argued that section 

208 of the INA intentionally omits 

public health concerns as a basis of 

denial (such as by not incorporating the 

INA’s health-related inadmissibility 

grounds, INA 212(a)(1), 8 U.S.C. 

1182(a)(1), as a basis for finding an alien 

ineligible for asylum) and that when 

Congress enacted the Illegal 

Immigration Reform and Immigrant 

Responsibility Act of 1996 (‘‘IIRIRA’’) it 

could have defined the danger to the 

security of the United States bar, but 

chose not to do so. One commenter 

cited dictionary definitions of 

‘‘reasonable’’, ‘‘danger’’, and ‘‘security’’ 

to argue that the proposed rule 

contravenes the INA. Another argued 

that the NPRM is unjust and 

inconsistent with the character of the 

INA in that it applied a bar based on a 

factor outside of an asylum seeker’s 

control. 

Another commenter argued that the 

‘‘expresio unis’’ canon of construction, 

whereby when multiple items of a 

category are expressly mentioned, 

others in the same class are excluded, 

leads to the conclusion that because the 

three statutory bars to applying for 

asylum, INA 208(a)(2), do not include 

public health concerns, such concerns 

should not bar an alien from being able 

to apply for asylum. Another 

commenter argued more generally that 

the NPRM violates section 208(a)(1) of 

the INA, which guarantees the right of 

every alien physically present in the 

United States to apply for asylum, by 

denying asylum seekers who arrive in 

the United States the right to seek 

refuge. 

Other commenters argued that the 

danger to the security of the United 


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84174 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

76 DHS, Pandemic Influenza: Preparedness, 

Response, and Recovery: Guide for Critical 

Infrastructure and Key Resources, Introduction at 1 

(2006) (Michael Chertoff, Secretary of Homeland 

Security), https://www.dhs.gov/sites/default/files/ 

publications/cikrpandemicinfluenzaguide.pdf. 77 Diane DiEuliis & Laura Junor, Ready or Not: 

Regaining Military Readiness During COVID19, 

Strategic Insights, U.S. Army Europe (Apr. 10, 

2020), https://www.eur.army.mil/COVID-19/ 

COVID19Archive/Article/2145444/ready-or-notregaining-military-readiness-during-covid19/ 

(discussing the spread within the military of 

twentieth-century pandemics and consequences of 

the spread this year of COVID–19). 

78See id. 

States bars should only be read to apply 

to criminal and/or terrorist-related 

concerns, one arguing that because other 

mandatory bars to asylum found in INA 

208(b)(2)(A) include references to 

crimes, the term danger to the security 

of the United States must be read 

narrowly to involve considerations of 

criminal threats or intentional harm to 

others rather than for any type of harm. 

The commenter cited the ‘‘ejusdem 

generis’’ canon of construction whereby 

when ‘‘a more general term follows 

more specific terms in a list, the general 

term is usually understood to embrace 

only objects similar in nature to those 

objects enumerated by the preceding 

specific words.’’ Several commenters 

argued that the bars should be limited 

to terrorism-related threats and that the 

proposed rule misinterprets Matter of 

A–H-, reasoning that ‘‘economic 

interests’’ should be understood as 

economic interests that could be 

targeted by terrorists, not those affected 

by public health concerns. Another 

group of commenters stated that nothing 

in the INA permits a definition of 

‘‘economic interests’’ which includes 

public health concerns. 

Response: The Departments disagree 

with comments stating that public 

health concerns cannot constitute 

reasonable grounds for regarding or 

believing an alien as a danger to the 

security of the United States. As thenSecretary of Homeland Security, 

Michael Chertoff, stated in 2006, ‘‘[a] 

severe pandemic . . . may affect the 

lives of millions of Americans, cause 

significant numbers of illnesses and 

fatalities, and substantially disrupt our 

economic and social stability.’’ 76 In 

addition, components of the U.S. 

military have indicated that the global 

spread of pandemics can impact 

military readiness, thus posing a direct 

threat to U.S. national security.77 For 

example, the risk of further spread of 

COVID–19 this year has led to the 

cancellation or reduction of various 

large-scale military exercises and a 60- 

day stop-movement order.78

The Departments reject the argument 

that because the statutory bars to 

eligibility for asylum and withholding 

of removal do not specifically reference 

the health-related inadmissibility 

grounds found at section 212(a)(1)(A) of 

the INA, that no public health concerns 

can be considered in assessing an 

applicant’s potential danger to the 

security of the United States. This rule 

was never designed to incorporate all 

these health-related grounds—which 

can make an alien inadmissible as a 

result of the lack of immunization, 

physical or mental disorders that may 

pose or have posed a threat to the 

property, safety, or welfare of the alien 

or others, and drug abuse and 

addiction—into the bars to eligibility for 

asylum and withholding. It is only in 

limited circumstances involving 

declared Federal public health 

emergencies or joint determinations by 

the Secretary of Homeland Security and 

Attorney General that aliens coming 

from areas of the world where a 

communicable disease of public health 

significance is prevalent or epidemic 

would constitute a danger to public 

health and that an asylum or 

withholding applicant would be 

considered to pose a danger to the 

security of the United States. Similarly, 

the Departments reject commenters’ 

arguments that because the asylum bars 

do not specifically mention public 

health concerns, that the bar regarding 

danger to the security of the United 

States should be interpreted to exclude 

such concerns. 

Additionally, the rule does not 

contravene section 208(a)(1) of the INA 

since it does not create a bar to applying 

for asylum. Rather, it clarifies the 

Departments’ understanding of a 

longstanding statutory bar to asylum 

eligibility. Finally, the bars to applying 

for asylum at section 208(a)(2) and the 

bars to asylum eligibility at section 

208(b)(2) in fact do include factors that 

are outside an applicant’s control or 

‘‘categorical,’’ such as the existence of a 

safe third country agreement. INA 

208(a)(2)(A). 

The Departments are not making 

changes to the final rule in response to 

these comments. 

Guidance and Training for Officers 

Determining Application of the Bars 

2. Application of the Danger of the 

Security of the United States Bars in 

Credible Fear Screenings in the 

Expedited Removal Process 

Comment: Several commenters 

expressed concern about applying the 

danger to the security of the United 

States bars at the credible fear stage, 

where previously negative credible fear 

determinations could not be based on 

aliens being subject to such bars. 

Commenters argued that this would 

deny individuals with a well-founded 

fear of persecution the opportunity to 

establish their eligibility for 

humanitarian protection, that it would 

eliminate all exercise of judgement or 

discretion, and make it nearly 

impossible to disprove the application 

of the bars, which deprives asylum 

seekers of the opportunity to seek 

asylum in court before an immigration 

judge. 

Other commenters argued that the 

proposed rule is ultra vires by creating 

an ‘‘infectious disease’’ bar to asylum 

and withholding of removal that would 

disqualify applicants at the credible fear 

stage, when such individuals (even if 

infected with COVID–19 at the time of 

arrival) would be unlikely to remain 

infectious by the time of adjudication of 

their applications for asylum or 

withholding of removal. They argued 

that the NPRM would not protect border 

security personnel from a 

communicable disease or prevent 

spread in border facilities or the 

community, because the period when an 

applicant is most likely to spread a 

communicable disease is during the 

credible fear process (including the 

credible fear interview and review by an 

immigration judge) that can take from 

seven to ten days. The commenters 

stated that this timeline was not 

sufficiently addressed in the proposed 

rule and expressed concern that CBP 

and ICE would continue holding 

individuals in ‘‘congregate settings’’ 

during the credible fear process, a 

practice that would put many others at 

risk prior to the application of the 

NPRM’s changes to the credible fear 

process. The commenters also 

questioned why DHS could not test each 

asylum seeker upon apprehension and 

provide results within the time required 

for a credible fear interview and review 

by an immigration judge. 

An individual commenter asked 

several questions about the procedural 

steps that would be involved should 

asylum seekers stop exhibiting the 

perceived symptoms that led to a 

determination that they may have 

COVID–19. Specifically, the commenter 

asks whether an immigration judge 

could overturn a negative credible fear 

finding and whether the BIA could 

overturn a denial of asylum when the 

applicant has ceased exhibiting the 

symptoms that were the basis of the 

determination. 

Another commenter argued that the 

agencies’ assertion that the NPRM’s 

impact on time spent making and 

reviewing screening decisions ‘‘would 

be minimal’’ was incorrect because 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84175 

79Control of Communicable Diseases; Foreign 

Quarantine: Suspension of the Right To Introduce 

and Prohibition of Introduction of Persons Into 

United States From Designated Foreign Countries or 

Places for Public Health Purposes, 85 FR at 56527. 

80 Illinois Department of Public Health, available 

at https://dph.illinois.gov/sites.default/files/ 

publications/commchartschool-032817.pdg (last 

visited on October 15, 2020); Center for Acute 

Disease Epidemiology, Iowa Department of Public 

Health, The Epidemiology of Common 

Communicable Diseases, available at https://

idph.iowa.gov/Portals/1/userfiles/79/Documents/ 

Epi%20of%20Common%20Communicable%

20Diseases%20June%202013%20-%20FINAL.pdf 

(last visited on October 15, 2020). 

81Control of Communicable Diseases; Foreign 

Quarantine: Suspension of the Right To Introduce 

and Prohibition of Introduction of Persons Into 

United States From Designated Foreign Countries or 

Places for Public Health Purposes, 85 FR at 56429. 

82 INA 208(b)(1)(B)(ii) and 241(b)(3)(C), 8 U.S.C. 

1158(b)(1)(B)(ii) and 1231(b)(3)(C); 8 CFR 208.13(a), 

208.16, and 208.16(c)(2). 

adding the consideration of a danger to 

the security of the United States bars in 

the screening process would 

‘‘exponentially increase the length and 

complexity of the adjudication.’’ 

Another legal services provider 

expressed concern that the proposal’s 

anticipation of ‘‘minimal’’ review time 

indicates the review will be ‘‘cursory 

and not appropriately detailed.’’ 

Response: The rule does not create an 

‘‘infectious’’ or ‘‘communicable’’ disease 

bar to asylum and withholding of 

removal. Rather, the rule clarifies the 

Departments’ understanding of the 

existing statutory bars regarding aliens 

who are reasonably regarded to be 

dangers to the security of the United 

States. 

The Departments acknowledge that an 

applicant may be most likely to spread 

a communicable disease upon and soon 

after arrival, which coincides with the 

period in which an alien placed into 

expedited removal proceedings would 

be going through credible fear screening. 

However, this is not always true. As the 

CDC has stated, there is an ‘‘everpresent risk that future pandemics may 

present new or different challenges 

. . . . A new virus could have a longer 

incubation period than . . . the virus 

that causes COVID–19 . . . or cause a 

disease that takes longer to run its 

course.’’ 79 By way of example, the 

incubation period for tuberculosis can 

be years in length, and that of hepatitis 

B can be up to 180 days.80

The Departments did consider 

limiting the scope of this rule, such as 

by only applying the bars to those aliens 

who are symptomatic. But as the CDC 

has determined in the context of 

COVID–19: 

Identifying those infected with COVID–19 

can be difficult, as asymptomatic cases are 

currently believed to represent roughly 40% 

of all COVID–19 infections. The 

infectiousness of asymptomatic individuals 

is believed to be about 75% of the 

infectiousness of symptomatic individuals. 

HHS/CDC’s current best estimate is that 

between 40 to 50% of infections are 

transmitted prior to symptom onset (presymptomatic transmission).81

The Departments note that the final 

rule is not, as the NPRM proposed, 

modifying the regulatory framework to 

apply the danger to the security of the 

United States bars at the credible fear 

stage. In the interim between the NPRM 

and the final rule, the Global Asylum 

Final Rule did so for all of the bars to 

eligibility for asylum and withholding 

of removal. In any event, the 

Departments do not intend for asylum 

officer and immigration judge 

assessments of the applicability of the 

security bars in the credible fear process 

to be ‘‘cursory and not appropriately 

detailed.’’ As stated in the proposed 

rule, it is anticipated that asylum 

officers and immigration judges will 

need to spend additional time during 

the credible fear process to determine 

whether an alien is ineligible for asylum 

or withholding of removal based on the 

security bars. However, the Departments 

believe that the additional time spent 

making such determinations will be 

minimal because the issues to be 

explored by the asylum officer and the 

immigration judge will usually be fairly 

straightforward and not involve 

complex analysis, e.g., the place and 

time of an alien’s embarkation. 

The Departments are not making 

changes to the final rule in response to 

these comments. 

Higher Standard for Credible Fear 

Determinations 

Comment: Multiple commenters 

argued that the rule impermissibly 

raises the standard for demonstrating a 

credible fear and imposes the burden 

onto the asylum seeker to ‘‘disprove the 

assumption that they are a danger to 

security due to public health.’’ The 

commenters state that asylum seekers 

would be ill equipped to meet the 

proposed higher standards in the 

credible fear screening process due to 

trauma, lack of evidence or key 

information when they arrive at the 

border, lack of legal representation, and 

lack of English proficiency, all of which 

renders them incapable of contributing 

meaningfully to their own defense. 

Another commenter added that the rule 

denies asylum seekers the opportunity 

to receive meaningful administrative or 

judicial review. Another noted that 

asylum seekers would have difficulty 

proving they do not have a disease at 

this stage in the process because they 

would not have access to physicians, 

medical screenings, or tests while in 

detention. Another commenter argued 

that the burden of proof concerning 

credible fear and application of the 

national security bars should fall to the 

government, given the danger, including 

death, that some asylum seekers may 

face upon return to their home country. 

Response: The rule does not, and 

could not, alter the standard for 

demonstrating a credible fear of 

persecution, which is set by statute as 

a ‘‘significant possibility, taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim and such other facts as are 

known to the officer, that the alien 

could establish eligibility for asylum 

. . . .’’ INA 235(b)(1)(B)(v), 8 U.S.C. 

1225(b)(1)(B)(v). Asylum officers and 

immigration judges will continue to 

assess credible fear for purposes of 

potential eligibility for asylum by 

determining whether there is a 

significant possibility that the alien can 

establish eligibility for asylum—which 

of necessity requires the alien to 

demonstrate a significant possibility of 

each element of asylum eligibility. 

Thus, to meet the credible fear standard, 

the alien need only establish a 

significant possibility that the danger to 

the security of the United States bar 

does not apply and a significant 

possibility of meeting the other relevant 

eligibility criteria. 

The Departments do not agree that it 

is appropriate to place the burden on 

the government concerning the 

application of the danger to the security 

of the United States bars, or that they 

could even do so consistent with the 

INA. Section 235(b)(1)(B)(iii)(II) of the 

INA, which requires an asylum officer 

to prepare a written record of a negative 

credible fear determination analyzing 

why ‘‘the alien has not established a 

credible fear of persecution,’’ states that 

it is the alien’s responsibility to 

establish a credible fear of persecution. 

While the burden lies with the alien, the 

officer is charged with eliciting (in a 

non-adversarial manner) relevant 

information that bears on whether the 

alien has a credible fear of persecution, 

including whether there is a significant 

possibility that the danger to the 

security of the United States bars does 

or does not apply. 8 CFR 208.30(d). The 

Departments point out that testimony 

alone, if otherwise credible, can be 

sufficient to meet the alien’s burden of 

proof.82


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83See Government Accountability Office, Actions 

Needed to Strengthen USCIS’s Oversight and Data 

Quality of Credible and Reasonable Fear Screenings 

(Feb. 2020) at 10 (‘‘In screening non-citizens for 

credible or reasonable fear. . . [a] USCIS asylum 

officer is to determine if the individual has any bars 

to asylum or withholding of removal that will be 

pertinent if the individual is referred to 

immigration court for full removal proceedings.’’), 

https://www.gao.gov/assets/710/704732.pdf; USCIS 

Refugee, Asylum, and International Operations, 

Lesson Plan on Credible Fear of Persecution and 

Torture Determinations (Apr. 30, 2019) at 31 (‘‘Even 

though the bars to asylum do not apply to the 

credible fear determination, the interviewing officer 

must elicit and make note of all information 

relevant to whether a bar to asylum or withholding 

applies or not.’’), https://fingfx.

thomsonreuters.com/gfx/mkt/11/10239/10146/ 

2019%20training%20document%

20for%20asylum%20screenings.pdf. 

84Thuraissigiam, 140 S. Ct. at 1965–66. 

85Available at https://www.dhs.gov/uscis-piasand-sorns. 

The Departments are not making 

changes to the final rule in response to 

these comments. 

Role of Asylum Officers and Border 

Agents 

Comment: Several commenters raised 

concerns that the rule, by placing this 

inquiry in the credible fear stage of the 

removal process, increases the decisionmaking authority of ‘‘low-level 

immigration officials,’’ including border 

agents and asylum officers, to make 

complex national security 

determinations without the proper 

expertise and without the ‘‘significant 

pre-hearing preparations’’ that would 

accompany removal proceedings before 

an immigration judge. Several 

commenters posed questions about what 

kind of guidance, training, or other 

measures would be implemented to 

enable CBP officers, asylum officers, 

and immigration judges to determine 

whether an asylum seeker is exhibiting 

symptoms consistent with a contagious 

disease. Others asked whether such 

trainings would address implicit and 

explicit bias in making such 

determinations, and how such 

determinations would be tracked and 

measured. Another commenter argued 

that requiring asylum officers to make 

determinations about withholding of 

removal under the CAT regulations 

violates 8 CFR 208.16(a), which states 

that asylum officers ‘‘shall not’’ decide 

withholding claims. 

Response: As noted, the final rule is 

not, as the NPRM proposed, modifying 

the regulatory framework to apply the 

danger to the security of the United 

States bars at the credible fear stage 

because, in the interim between the 

NPRM and the final rule, the Global 

Asylum Final Rule did so for all of the 

bars to eligibility for asylum and 

withholding of removal. In any event, 

the application of asylum eligibility bars 

at the credible fear stage has no bearing 

on how asylum officers or immigration 

judges assess alleged trauma during the 

screening process. Adjudicators in both 

Departments are trained to make these 

assessments and are well versed in 

assessing the credibility of applicants, 

including accounting for trauma as 

relevant. Regarding commenters’ 

concerns about requiring asylum 

officers to determine whether the bars 

apply during the credible fear interview, 

the Departments note that asylum 

officers are well trained in asylum law 

and are more than capable of 

determining whether statutory bars 

apply, especially in the credible fearscreening context. An asylum officer 

must have ‘‘had professional training in 

country conditions, asylum law, and 

interview techniques comparable to that 

provided to full-time adjudicators of 

applications [for asylum],’’ and ‘‘is 

supervised by an officer who [has had 

similar training] and has had substantial 

experience adjudicating asylum 

applications.’’ INA 235(b)(1)(E), 8 U.S.C. 

1235(b)(1)(E)); 8 CFR 208.1(b). DHS 

asylum officers regularly make 

determinations on a variety of issues 

surrounding eligibility in a manner 

consistent with their extensive and 

multi-faceted training and country 

conditions and other resources at their 

disposal. Asylum officers receive 

extensive training in all the 

requirements for asylum eligibility, 

international human rights law, nonadversarial interviewing techniques, 

and other national and international 

refugee laws and principles. 8 CFR 

208.1(b). This training includes specific 

lessons on cross-cultural 

communication; interviewing survivors 

of torture; and working with an 

interpreter, all of which touch on 

explicit and implicit bias. With the 

publication of this rule, asylum officers 

will receive additional training on the 

standards and requirements set forth in 

this rule. The Departments also note 

that even before promulgation of the 

Global Asylum Final Rule, asylum 

officers already elicited testimony 

related to mandatory bars to asylum 

and/or withholding of removal in the 

credible fear context—they simply did 

not apply them under then-current 

regulations.83

Lastly, responding to commenters’ 

concerns that such determinations 

would be ‘‘final,’’ 8 CFR 208.16(a) 

provides that an asylum officer ‘‘shall 

not decide whether . . . removal of an 

alien . . . must be withheld.’’ The rule 

provides for the asylum officer to 

conduct a screening for potential 

eligibility for withholding and deferral 

of removal. Asylum officer screening for 

these protections is currently part of the 

credible fear process and do not result 

in a grant or denial of withholding or 

deferral of removal, which can only be 

done by an immigration judge, 8 CFR 

208.16(a), 208.17, 1208.16(a), and 

1208.17. An asylum officer’s 

determination following a credible fear 

interview can be reviewed by an 

immigration judge, either as part of a de 

novo review of a negative credible fear 

determination, or in asylum-andwithholding-only proceedings, where 

the immigration judge is not bound by 

findings of the asylum officer. As the 

Supreme Court has observed, ‘‘[a]n alien 

subject to expedited removal thus has 

an opportunity at three levels to obtain 

an asylum hearing, and the applicant 

will obtain one unless the asylum 

officer, a supervisor, and an 

immigration judge all find that the 

applicant has not asserted a credible 

fear.’’ 84

The Departments have reviewed and 

considered the comments and are not 

making changes to the final rule in 

response to these comments. 

Confidentiality of Health Information 

Comment: One commenter stated that 

the rule violates asylum seekers’ right to 

privacy and confidentiality by requiring 

them to disclose health information to 

immigration officers. The commenter 

also faulted the rule for failing to 

include specifics on how asylum 

seekers’ personal health information, 

medical records, and health data would 

be collected, stored, and transmitted. 

Response: Information voluntarily 

provided to DHS for purposes of 

adjudicating a requested benefit often 

contains sensitive personally 

identifiable information. In particular, 

health information that is collected and 

maintained within DHS systems of 

records, for example in the context of 

the health ground of inadmissibility, 

INA 212(a)(1), 8 U.S.C. 1182(a)(1); INA 

237(a)(1)(A), 8 U.S.C. 1227((a)(1)(A), as 

it applies to applications for adjustment 

of status, INA 245(a)(2), 8 U.S.C. 

1255(a)(2), is appropriately protected 

and handled in the same manner as 

other sensitive information possessed by 

DHS. Information about the 

safeguarding of health information and 

other sensitive information may be 

found in the various System of Records 

Notice and Privacy Impact Assessments 

that DHS and its components are 

statutorily required to prepare.85

Moreover, asylum, credible fear, 

reasonable fear and by policy, refugee 

information, enjoy heighted 


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confidentiality protections provided for 

in accordance with 8 CFR 208.6. 

Written Record and Immigration Judge 

Review of Negative Credible Fear 

Determinations 

Comment: One commenter addressed 

the proposed provision at 8 CFR 

208.30(e)(1), which calls for a written 

record in the credible fear proceeding 

‘‘subject to (e)(5)’’. The commenter 

stated this amendment was unclear and 

warned that excusing any credible fear 

interview from the written record 

requirement violates the statute at 8 

U.S.C. 1225(b)(1)(B)(iii)(II). 

Response: The Departments 

appreciate the comment received and 

acknowledge the ambiguity that may 

have been created from the proposed 

amendment to section 208.30(e)(1). The 

proposed language was intended to 

simply clarify that when an asylum 

officer creates a written record of his or 

her determination following a credible 

fear interview, the officer should, as 

applicable, include a written record of 

their determination as to whether the 

alien has demonstrated that it is more 

likely than not that he or she would be 

tortured in the country of removal. After 

considering the comment, the 

Departments have revised the language 

of the proposed amendment (now at 

section 208.30(e)(4) following the 

promulgation of the Global Asylum 

Final Rule) to make this clearer. 

Violation of Congressional Intent for 

Credible Fear Screening Process 

Comment: A joint submission argued 

that Congress did not grant DHS 

authority to create bars to credible fear 

that are unrelated to asylum eligibility 

at the time of the adjudication of an 

application. Multiple commenters 

argued that Congress intended for the 

credible fear process to employ a ‘‘low 

screening standard’’ in order to ensure 

that asylum seekers with genuine claims 

have access to the full asylum process 

and are not returned to persecution, and 

faulted the proposal for raising this 

standard. 

Response: The NPRM did propose to 

modify the then-existing regulatory 

framework in order to apply the danger 

to the security of the United States bars 

at the credible fear stage. However, 

subsequent to the publication of the 

NPRM, the intervening Global Asylum 

Final Rule amended the regulatory 

framework to apply all bars to eligibility 

for asylum and withholding of 

removal—including the danger to the 

security of the United States bars—at 

the credible fear stage. This rule does 

not make additional revisions to that 

regulatory framework. 

In any event, the final rule does not 

create a ‘‘bar’’ to credible fear unrelated 

to asylum eligibility. The Departments 

will continue to employ the ‘‘low 

screening standard’’ prescribed in 

statute and regulations—a significant 

possibility that the alien could establish 

eligibility for asylum. However, 

pursuant to the Global Asylum Final 

Rule, asylum officers must determine 

whether aliens are subject to a bar to 

relief as part of the significant 

possibility anaylsis. Accordingly, the 

Departments are not making changes to 

the final rule in response to these 

comments. 

3. Streamlining Screening for Deferral of 

Removal Eligibility in Expedited 

Removal 

Ability of Asylum Seekers To Meet 

Higher Standard for Protection Under 

CAT in Credible Fear Screenings 

Comment: The Departments received 

multiple comments concerning the 

provisions of the rule that amend the 

screening standard for potential 

eligibility for deferral of removal under 

the CAT regulations. Under the rule, 

section 208.30(e)(5)(i)(B) is amended to 

provide that where the asylum officer 

determines that the applicant is subject 

to the danger to the security of the 

United States bars to asylum and 

withholding of removal, the officer will 

screen for potential deferral of removal 

protection under the CAT regulations 

for an alien who has raised a fear of 

torture by determining whether the 

alien is able to establish that it is more 

likely than not that he or she would be 

tortured in the prospective country of 

removal, rather than whether there is a 

reasonable possibility that the alien 

would be tortured in the prospective 

country of removal. Several commenters 

stated that the ‘‘more likely than not’’ 

standard is unreasonable in the context 

of a credible fear screening and argued 

that this standard was only appropriate 

for a full immigration hearing before an 

immigration judge, where a ‘‘more likely 

than not standard’’ is used as the 

eligibility standard for deferral of 

removal. The commenters further 

argued that raising the standard of proof 

to the level of a full immigration hearing 

was inappropriate because individuals 

in screenings are likely to have less than 

the required amount of evidence at the 

time of their arrival and insufficient 

time to prove their case. Multiple 

commenters argued that applying the 

‘‘more likely than not’’ standard at the 

expedited removal stage violates the 

expedited removal standard that was 

intentionally designed by Congress to be 

‘‘generous’’ and ‘‘over-inclusive’’ to 

avoid the risk of refoulement. The 

commenters said requiring individuals 

subject to a danger to the security of the 

United States bar to prove they are 

‘‘more likely than not’’ to be tortured in 

the country of removal was an unlawful 

change to the credible fear standard 

intended by Congress and clearly 

articulated in the text and legislative 

history of IIRIRA. Other commenters 

noted that those seeking protection 

under the CAT regulations who have 

suffered recent trauma and 

psychological harm would have 

difficulty understanding complex legal 

requirements and would be unable to 

fully disclose everything that has 

happened to them in a ‘‘rushed’’ 

interview with a stranger, resulting in 

an undue risk that those facing torture 

would not be provided appropriate 

protection. Another commenter added 

that allowing removal to a third country 

at the early screening stage would mean 

that no thorough record will exist as to 

a person’s risk of torture in that third 

country, a risk the commenter argued 

may be very high considering the 

permeability of borders and ease of 

movement of persecutors between 

Mexico and Central American countries. 

Response: The Departments first note 

that the expedited removal provisions of 

the INA do not even reference screening 

for withholding or deferral of removal 

under the CAT regulations. The rule 

continues to apply the credible fear 

standard required by statute, defined as 

a significant possibility that the alien 

can establish eligibility for asylum. INA 

235(b)(1)(B)(v). It is only when the alien 

is determined not to meet that 

significant possibility standard due to 

the application of the danger to the 

security of the United States bars 

(subject to review by an immigration 

judge), and determined not to meet the 

screening standard for withholding of 

removal (a reasonable possibility of 

persecution on account of a protected 

ground and a reasonable possibility of 

torture), that DHS will use the ‘‘more 

likely than not’’ standard to screen for 

potential eligibility for deferral of 

removal. There is no statutory 

requirement to even screen for deferral 

of removal, putting aside the screening 

standard used by DHS when it 

voluntarily engages in screening. 

The Departments note that the 

utilization of the ‘‘more likely than not’’ 

standard in deferral screenings only 

applies to aliens determined by DHS to 

be ineligible for asylum and 

withholding of removal pursuant to the 

danger to the security of the United 

States eligibility bars (or ineligible for 

asylum pursuant to the Third-Country 

Transit Final Rule). Aliens determined 


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84178 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

86 In the context of the CDC Order, a ‘‘covered 

alien’’ includes those ‘‘persons who are traveling 

from Canada or Mexico (regardless of their country 

of origin), and who must be held longer in 

congregate settings in POEs or Border Patrol 

stations to facilitate immigration processing, would 

typically be aliens seeking to enter the United 

States at POEs who do not have proper travel 

documents, aliens whose entry is otherwise 

contrary to law, and all aliens who are apprehended 

near the border seeking to unlawfully enter the 

United States between POEs.’’ 85 FR at 17067. 

87 Id. 

88FARRA sec. 2242(c), 8 U.S.C. 1231 note (c). 

89Regulations Concerning the Convention 

Against Torture, 64 FR 8478, 8480 (Feb. 19, 1999). 

90 8 CFR 208.17(a), 1208.17(a). 

91 8 CFR 208.30(d). 

92 INA 208(b)(1)(B)(ii) and 241(b)(3)(C), 8 U.S.C. 

1158(b)(1)(B)(ii) and 1231(b)(3)(C); 8 CFR 208.13(a), 

208.16, and 208.16(c)(2). 

by asylum officers to be ineligible for 

asylum or withholding of removal 

pursuant to the other mandatory bars 

will continue to be screened for deferral 

of removal under the reasonable 

possibility of torture standard, as 

provided by the Global Asylum Final 

Rule. 

Sending an alien to immigration court 

for a deferral of removal adjudication 

often results in his or her release into 

the United States for periods of years 

while the aliens await decisional 

finality. The need to streamline and 

expedite screening for deferral of 

removal is especially great in the 

context of outbreaks of communicable 

disease to prevent infected aliens from 

release into the United States when they 

are not even ultimately eligible for 

deferral. As the CDC has concluded, the 

‘‘faster a covered alien 86 is returned 

. . . the lower the risk the alien poses 

of introducing, transmitting, or 

spreading COVID–19 into POEs, Border 

Patrol stations, other congregate 

settings, and the interior [of the United 

States].’’ 87

The Departments disagree that the 

‘‘more likely than not’’ standard is an 

inappropriate screening standard for 

potential protection under the CAT 

regulations. In fact, Congress made clear 

that in providing protection under the 

CAT regulations, the government should 

not grant protection to aliens barred 

from eligibility for withholding of 

removal ‘‘[t]o the maximum extent 

consistent with the obligations of the 

United States under [CAT].’’ 88 The sole 

purpose of CAT deferral is to provide 

protection to such aliens (barred from 

eligibility for withholding of removal) in 

order ensure that they are not refouled 

to a country where it is likely that they 

will be tortured. The preamble to the 

1999 CAT rule stated that ‘‘[d]eferral of 

removal will be granted . . . to an alien 

who is likely to be tortured in the 

country of removal but who is barred 

from withholding of removal[,]’’ 89 and 

the regulatory text itself states that to be 

eligible for deferral an alien must be 

‘‘subject to the provisions for mandatory 

denial of withholding of removal under 

§ 208.16(d)(2) or (d)(3).’’ 90

This rule furthers Congress’s mandate 

that the withholding of removal 

eligibility bars apply to aliens seeking 

protection under the CAT regulations 

‘‘[t]o the maximum extent consistent 

with the obligations of the United States 

under [CAT]’’ by requiring that aliens 

meet at the credible fear stage their 

ultimate burden to demonstrate 

eligibility for deferral of removal—i.e., 

that it is more likely than not that they 

would be tortured in the country of 

removal. 8 CFR 208.16(c)(2), 208.17(a). 

Regarding the commenter’s concern 

about the alien’s ability to meet his or 

her burden with respect to possible 

torture, as the Departments have noted, 

asylum officers are trained to research 

and consider country conditions 

information, and engage in nonadversarial interview techniques that 

are designed to elicit all relevant 

information.91 And, as the Departments 

have noted, testimony alone, if 

otherwise credible, can be sufficient to 

meet the alien’s burden.92 The 

Departments are confident that officers 

will be able to access and consider all 

relevant information that may bear on 

an alien’s potential risk of torture in any 

particular country. 

Regarding commenters’ concerns that 

this standard is higher than the asylum 

standard, the ‘‘more likely than not’’ 

standard better aligns the initial 

screening standard of proof with the 

higher standard used to determine 

whether aliens are in fact eligible for 

this form of protection when applying 

before an immigration judge (than the 

ultimate standard for asylum eligibility). 

As noted, Congress intended the ‘‘more 

likely than not’’ standard to meet United 

States’ non-refoulement obligations in 

Article 33(1) of the Refugee Convention, 

not the lower asylum standard. 

The Departments recognize that a 

higher screening standard may make it 

more difficult to receive a positive fear 

determination, though that standard is 

consistent with the higher burden of 

proof required for considerations of the 

merits. However, the Departments 

disagree with commenters that raising 

the screening standard for deferral of 

removal will require aliens to submit 

significantly stronger documentary 

evidence. Just as in screenings for 

asylum and withholding of removal 

eligibility, the testimony of the 

applicant, if credible, may be sufficient 

to sustain the alien’s burden of proof 

without corroboration. 8 CFR 208.17(a). 

At the credible fear interview stage, 

these claims rest largely on the 

applicant’s testimony, which does not 

require any additional evidence 

gathering on the applicant’s part. 

Additionally, an alien who receives an 

adverse ‘‘more likely than not’’ 

determination by an asylum officer may 

seek review of such determination by an 

immigration judge. 

Requirement To Affirmatively Raise and 

Affirmatively Establish Likelihood of 

Torture in Prospective Country of 

Removal 

Comment: Several commenters argued 

that, since asylum seekers fleeing 

torture often experience trauma and lack 

of understanding of U.S. immigration 

law, they should not be required to 

make an affirmative statement in 

credible fear interviews that they may 

be tortured if returned to their home 

country. Some commenters opposed the 

requirement that an asylum seeker in 

the expedited removal process 

‘‘affirmatively establish’’ that torture in 

the prospective country of removal is 

more likely than not. A group of 

commenters said the rule would 

essentially require asylum seekers to 

somehow ‘‘affirmatively establish’’ 

eligibility for withholding of removal or 

protection under the CAT regulations in 

an unknown third country. Another 

commenter said it is unclear how the 

Departments understand ‘‘affirmatively 

establish’’ (in the proposed regulations) 

in relation to ‘‘affirmatively raise’’ (only 

stated in the preamble). The commenter 

said the shift to ‘‘affirmatively 

establish’’ in the proposed regulations 

appears to suggest a heightened burden 

on the asylum seeker, in addition to 

raising the required risk of torture, 

signaling a burden of presenting 

affirmative proof of torture at the 

credible or reasonable fear interviews. 

The commenter said it is unclear and 

confusing as to what standard the 

Departments are inserting. 

Response: The Departments 

appreciate the comments concerning the 

‘‘affirmatively establish’’ language that 

appeared in the regulatory language of 

the proposed rule. The adverb was 

included to make clear that the alien has 

the burden of proof to establish that 

torture is more likely than not to occur 

in the prospective country of removal. 

After considering the comments, the 

Departments have concluded that the 

term ‘‘affirmatively’’ may cause 

confusion and is not necessary to clarify 

the burden of proof, which clearly rests 

with the alien. Accordingly, the term 

‘‘affirmatively’’ has been deleted from 


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93Security Bars NPRM, 85 FR at 41213 (emphasis 

added). 

94 Inspection and Expedited Removal of Aliens; 

Detention and Removal of Aliens; Conduct of 

Removal Proceedings; Asylum Procedures, 62 FR 

10312, 10319 (Mar. 6, 1997) (interim rule with 

request for comments) (emphasis added). 

95 DHS, Form I–867B (08/01/07) (Jurat for Record 

of Sworn Statement in Proceedings under Section 

235(b)(1) of the Act). 

the regulatory text in the final rule at 

sections 208.30(e)(5)(i)(B)(3), 

(e)(5)(iii)(B), (e)(5)(iii)(B)(3), and 

1208.30(g)(2)(iv)(A). An alien’s 

obligation is simply to ‘‘establish.’’ 

As to ‘‘affirmatively raises’’, the 

preamble to the NPRM stated that ‘‘[i]f 

the alien affirmatively raises fear of 

torture . . . the asylum officer will then 

assess, as appropriate, the alien’s 

eligibility for deferral of removal under 

the CAT regulations’’ and that ‘‘[a]n 

alien who is found by the asylum officer 

to be subject to the bars and who 

affirmatively raises a fear of torture but 

does not establish that it is more likely 

than not that he or she would be 

tortured can obtain review of both of 

those determinations by an IJ.’’ 93 The 

Departments have concluded that the 

phrase ‘‘affirmatively raises’’ could 

cause confusion, and thus incorporate 

the preceding sentences by reference in 

this final rule with the understanding 

that ‘‘affirmatively raises’’ should read, 

‘‘has raised’’. 

The INS and now DHS’s longstanding 

practice has been to ask every alien 

subject to expedited removal about a 

potential fear of return. The regulatory 

text at 8 CFR 235.3(b)(2)(i), which is not 

changed by this rule, does not state this 

explicitly, providing that: 

In every case in which the expedited 

removal provisions will be applied and 

before removing an alien from the United 

States pursuant to this section, the examining 

immigration officer shall create a record of 

the facts of the case and statements made by 

the alien. This shall be accomplished by 

means of a sworn statement using Form I– 

867AB . . . . The examining immigration 

officer shall read (or have read) to the alien 

all information contained on Form I–867A. 

However, the preamble to the 

regulation made clear that all aliens 

placed into expedited removal were to 

be questioned about a fear of return: 

Service procedures require that all 

expedited removal cases will be documented 

by creation of an official Service file, to 

include a complete sworn statement taken 

from the alien recording all the facts of the 

case and the reasons for a finding of 

inadmissibility. This sworn statement will be 

taken on a new Form I–867AB, Record of 

Sworn Statement in Proceedings under 

Section 235(b)(1) of the Act. The form will 

be used in every case where it is determined 

that an alien is subject to the expedited 

removal process, and contains a statement of 

rights, purpose, and consequences of the 

process. . . . The final page of the form 

contains a standard question asking if the 

alien has any fear or concern of being 

removed or of being sent home.94

Accordingly, CBP/ICE officers ask 

aliens these questions during the 

expedited removal process: 

• Why did you leave your home 

country or country of last residence? 

• Do you have any fear or concern 

about being returned to your home 

country or being removed from the 

United States? 

• Would you be harmed if you are 

returned to your home country or 

country of last residence? 

The alien’s answers to these questions 

are memorialized on the I–867B Form.95

Thus, all aliens receiving credible fear 

screening interviews will already have 

been asked whether they have a fear of 

return and have answered in the 

affirmative (triggering the credible fear 

process). Aliens with a fear of return 

based on torture would presumably 

have stated such a fear at that time. 

Unidentified Third Country 

Comment: Many commenters stated 

that the rule would eliminate even the 

prospect of protection under the CAT 

regulations because DHS officials would 

be permitted to send an alien to a third 

country unless the alien proves during 

a credible fear interview that they 

would be persecuted or tortured in that 

specific country—without any 

requirement that the person be informed 

of the identity of the country in 

advance, which one commenter argued 

is nonsensical, immoral, and cruel. 

Without notice of the country a person 

would be sent to, these commenters said 

asylum applicants would face a nearimpossible burden to avoid being sent to 

a place where they may be tortured. 

Response: The Departments 

appreciate the comments and agree that 

an alien should be informed of the 

identity of a prospective country of 

removal, provided with an opportunity 

to raise a fear of torture if removed to 

that country, and to have that fear 

assessed to determine whether he or she 

has established that it is more likely 

than not that they will be tortured in 

that country. That was always the 

Departments’ intent, and the 

Departments accordingly include 

language in the final rule clarifying that 

aliens must be notified of the identity of 

the proposed country. 

Unclear Process for Removability 

Determinations 

Comment: Some commenters stated 

that the proposed rule is unclear as to 

the process by which determinations 

about removability to a third country 

will be made for individuals who have 

shown a credible fear of persecution or 

torture in their home country. The 

commenters said that given that asylum 

seekers only request withholding or 

deferral of removal in removal 

proceedings before an immigration 

judge after the credible fear process is 

completed, it is unclear when and how 

asylum seekers would be advised of the 

potential for removal to a third country 

and provided an opportunity to 

withdraw their request in order to 

prevent removal to the third country. 

Another commenter said asylum seekers 

will be confused by this advisal and feel 

coerced into abandoning any claim for 

protection out of fear that they might be 

removed to a country that they may 

never have been to, and where they 

have no support system or means of 

ensuring their safety or survival. Other 

commenters said the rule fails to 

include an exception for LGBTQ 

persons who may not be able to survive 

in a third country due to on-the-ground 

homophobia or transphobia, as it 

remains illegal or fundamentally 

dangerous to openly identify as LGBTQ 

(or even be perceived as LGBTQ) in over 

80 countries around the world. 

Response: The Departments 

appreciate the comments concerning the 

rule’s requirement that aliens be 

notified of the possibility of third 

country removal at the time of 

requesting withholding or deferral of 

removal and provided an opportunity to 

withdraw their request in order to 

prevent removal to the third country. 

However, after considering the 

comments, the Departments are not 

making changes to the final rule. 

Once an asylum officer determines 

that an alien has not established the 

requisite fear with respect to potential 

eligibility for asylum and withholding 

of removal because they are subject to 

the danger to the security of the United 

States eligibility bars, if the alien had 

raised a fear of torture in the prospective 

country of removal, the asylum officer 

will assess whether it is more likely 

than not that the alien would be 

tortured in that country of removal, and 

thus potentially eligible for deferral of 

removal. Prior to that assessment, the 

alien would be notified of the 

possibility of removal to a third country 

and provided the opportunity to 

proceed to removal pursuant to INA 

241(b), as appropriate. 

The Departments do not view the 

process as coercive as suggested by the 

commenters. Rather, the process 

provides applicants with an opportunity 

to avoid an outcome that already exists. 


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84180 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

96 951 F.3d 1073 (9th Cir. 2020). 

97Wolf v. Innovation Law Lab, No. 19A960 (Mar. 

11, 2020). 

98Wolf v. Innovation Law Lab, No. 19–1212, __ 

S. Ct.__, 2020 WL 6121563, 20 Cal. Daily Op. Serv. 

10,700 (petition for cert. granted Oct. 19, 2020). 

99 Id. at 1093. 

100 Id. at 1088. 

101 Id. at 1089. As previously noted, DHS’s 

longstanding practice has been to ask every alien 

subject to expedited removal about a potential fear 

of return. 

102 Id. at 1088–89. In credible fear screenings in 

the expedited removal process, aliens need to show 

only a significant possibility that they would be 

eligible for asylum or a reasonable possibility that 

they would be persecuted or tortured for purposes 

of demonstrating potential eligibility for 

withholding of removal. INA 235(b), 8 U.S.C. 

1225(b); 8 CFR 208.30. 

103 Id. at 1089. In the expedited removal process, 

an alien may seek review of a negative credible fear 

determination by an immigration judge. INA 

235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III). 

Aliens are entitled to a ‘‘consultation period’’ before 

their credible fear interview. INA 235(b)(1)(B)(iv), 8 

U.S.C. 1225(b)(1)(B)(iv) (‘‘An alien who is eligible 

for such interview may consult with a person or 

persons of the alien’s choosing prior to the 

interview or any review thereof . . . .’’). The 

current period is 48 hours. Inspection and 

Expedited Removal of Aliens; Detention and 

Removal of Aliens; Conduct of Removal 

Proceedings; Asylum Procedures, 62 FR 10312, 

10320 (1997) (interim rule with request for 

comments). Aliens in expedited removal 

proceedings know of the charges against them, as 

aliens are only eligible for expedited removal if they 

are inadmissible on the basis of section 212(a)(6)(C) 

or (a)(7) of the INA, 8 U.S.C. 1182(a)(6)(C) or (a)(7). 

Under current regulations, an alien who 

is granted withholding or deferral of 

removal is protected from removal only 

to a particular country, and remains 

subject to removal to other countries. 8 

CFR 1208.30(f). This rule provides the 

alien with the option to return to his or 

her home country rather than to seek 

withholding or deferral protection, 

which could lead to such third country 

removal. 

As stated previously, asylum officers 

are trained to research and consider 

country conditions information and 

engage in non-adversarial interview 

techniques designed to elicit all relevant 

information. Accordingly, the 

Departments are confident that officers 

will be able to access and consider all 

relevant information that may bear on 

an LGBTQ person’s potential risk of 

torture in any particular country. 

Similarities With the MPP Process 

Comment: Several commenters raised 

concerns related to the Migrant 

Protection Protocols (MPP), which 

implement DHS’s authority under INA 

235(b)(2)(C), 8 U.S.C. 1225(b)(2)(C), to 

return certain aliens temporarily to 

Mexico during the pendency of their 

section 240 removal proceedings. They 

argued that the Departments failed to 

acknowledge and discuss adverse legal 

precedent issued in the MPP context 

and claimed that this rule broadens the 

‘‘disastrous humanitarian 

consequences’’ caused by the MPP. 

Specifically, one commenter noted that 

under the MPP, individuals must 

‘‘affirmatively’’ express a fear of return 

to Mexico and then prove that it is 

‘‘more likely than not’’ that they ‘‘will 

face persecution or torture if returned to 

Mexico,’’ the same standards used to 

avoid being sent to a third country 

under the NPRM. Further, they pointed 

out that in Innovation Law Lab v. 

Wolf,96 the Ninth Circuit held that the 

MPP ‘‘does not comply with the United 

States’ anti-refoulement obligations,’’ 

and the commenter claimed that the use 

of the same standards in the third 

country removal process also does not 

provide sufficient protection against 

non-refoulement. 

Response: This rule is in no way 

related to the MPP and does not 

constitute an expansion or modification 

of the MPP. The MPP implements DHS’s 

authority under INA 235(b)(2)(C), 8 

U.S.C. 1225(b)(2)(C), to return certain 

aliens temporarily to Mexico during the 

pendency of their section 240 removal 

proceedings. The MPP does not involve 

or implement any bars to eligibility for 

asylum or withholding of removal. 

This rule, on the other hand, allows 

the Departments to consider emergency 

public health concerns when 

determining whether there are 

reasonable grounds for regarding or 

believing an alien to be a danger to the 

security of the United States’’ and, thus, 

ineligible to be granted asylum or 

withholding of removal. Although the 

Ninth Circuit held that the plaintiffs in 

Innovation Law Lab were likely to 

succeed on the merits of their claim that 

the MPP’s non-refoulment screening 

procedures did not meet U.S. nonrefoulment obligations, the Departments 

disagree, and the question remains in 

litigation. The Supreme Court granted a 

stay of the district court’s preliminary 

injunction, declining to halt the use of 

the MPP non-refoulment screening 

procedures,97 and the Supreme Court 

has granted a petition for certiorari.98

To the extent that commenters refer to 

country conditions in Mexico, this final 

rule permits removal to any third 

country (in which the alien has not 

demonstrated that he or she would be 

more likely than not persecuted because 

of a protected ground or tortured). 

Therefore, conditions in any specific 

country are no more relevant than 

conditions in any other country, and it 

is merely speculative as to which third 

countries DHS might consider in the 

future. 

The Departments also point out that 

the Ninth Circuit concluded that 

‘‘plaintiffs have shown a likelihood of 

success on the merits of their claim that 

the MPP does not comply with the 

United States’ anti-refoulement 

obligations’’ 99 presumably based upon 

‘‘several features of the MPP that, in 

[plaintiffs’] view, provide insufficient 

protection against refoulement’’ 100

features that are not present in this final 

rule. Unlike under the expedited 

removal process, under the MPP (1) 

aliens ‘‘must volunteer, without any 

prompting, that they fear returning,’’ 101

(2) aliens must demonstrate that it is 

more likely than not that they will be 

persecuted,102 and (3) ‘‘an asylum 

seeker is not entitled to advance notice 

of, and time to prepare for, the hearing 

with the asylum officer; to advance 

notice of the criteria the asylum officer 

will use; to the assistance of a lawyer 

during the hearing; or to any review of 

the asylum officer’s determination.’’ 103

Accordingly, the Departments 

conclude that MPP procedures and 

related litigation are not relevant to this 

rule, and the Departments are not 

making changes to the final rule in 

response to these comments. 

4. Restoring Prosecutorial Discretion 

With Regard to Third Country Removal 

Comment: Several commenters 

claimed that the rule would put 

protection from removal from the 

United States, including deferral of 

removal under the CAT regulations, out 

of reach for virtually everyone at the 

border and force those within the Unites 

States to play a ‘‘game of roulette’’ in 

which they could be removed to 

virtually any country in the world 

unless they withdraw their application 

for deferral. The commenters opposed 

the NPRM, stating that it would leave 

the United States government providing 

essentially no protection to those fleeing 

persecution or torture. Other 

commenters similarly stated that the 

rule threatens to eliminate the prospect 

of protection under the CAT regulations 

by allowing removal to third countries. 

Another advocacy group said asylum 

seekers sent to third countries would be 

unable to challenge DHS’ decision to do 

so, and the only option left for them 

would be to withdraw their application 

for protection altogether. 

Response: The Departments have 

reviewed and considered comments that 

have expressed concerns regarding the 

exercise of discretion to remove aliens 

to third countries who are only 

potentially eligible for deferral of 

removal under the CAT regulations due 

to the security bars to eligibility for 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84181 

104See also Asylum Claims Made by Aliens 

Arriving From Canada at Land Border Ports-ofEntry, 69 FR 69490, 69492 (Nov. 29, 2004); 

Agreement Between the Government of the United 

States of America and the Government of the 

Republic of Guatemala on Cooperation Regarding 

the Examination of Protection Claims, 84 FR 64095 

(Nov. 20, 2019). 

105Asylum Claims Made by Aliens Arriving From 

Canada at Land Border Ports-of-Entry, 69 FR at 

69492. 

106UNHCR, Legal Considerations Regarding 

Access to Protection and a Connection Between the 

Refugee and the Third Country in the Context of 

Return or Transfer to Safe Third Countries ¶ 2 (Apr. 

2018), https://www.refworld.org/pdfid/ 

5acb33ad4.pdf. 

107 Id. 

asylum and withholding of removal. 

The Departments remind commenters 

that third country removal is already 

authorized by statute and utilized in 

cases where the United States 

government has a safe third country 

agreement with another country. INA 

208(a)(2)(A).104 And, unlike asylum, 

statutory withholding of removal and 

protection under the CAT regulations 

provide protection from removal only to 

the particular country regarding which 

an alien has established he or she is 

more likely than not to be persecuted or 

tortured if removed there. An alien can 

be removed to another country where 

the alien has not established that he or 

she is more likely than not to be 

persecuted (and is not subject to a bar 

to eligibility for withholding) or tortured 

if removed to that particular country. 

INA 241(b), 8 U.S.C. 1231(b). As DOJ 

stated in the final rule implementing the 

U.S.-Canada Safe Third Country 

Agreement: 

[I]t is essential to keep in mind that, in 

order to be entitled to [statutory withholding 

of removal or protection under the CAT 

regulations], an alien must demonstrate that 

it is more likely than not that he or she 

would be persecuted, or tortured, in the 

particular removal country. That is, 

withholding or deferral of removal relates 

only to the country as to which the alien has 

established a likelihood of persecution or 

torture—the alien may nonetheless be 

returned, consistent with CAT and section 

241(b)(1) and (b)(2) of the Act [INA], to other 

countries where he or she would not face a 

likelihood of persecution or torture.105

The Departments note that restoring 

DHS’s discretionary ability to remove 

certain aliens to third countries only 

applies to aliens determined to be 

ineligible for asylum and withholding of 

removal pursuant to the danger to the 

security of the United States eligibility 

bars, or ineligible for asylum pursuant 

to the Third-Country Transit Final Rule. 

Aliens determined by asylum officers to 

be ineligible for asylum or withholding 

pursuant to the other mandatory bars 

will continue to be screened for deferral 

of removal under the reasonable 

possibility of torture standard, as 

provided by the Global Asylum Final 

Rule, and placed in immigration court 

for asylum-and-withholding-only 

removal proceedings should they 

establish such a reasonable possibility. 

As noted previously, sending aliens to 

immigration court for a deferral 

adjudication often results in their 

release into the United States for 

periods of years. Restoring DHS’s ability 

to instead remove such aliens to third 

countries is especially important in the 

context of outbreaks of communicable 

disease. As the Departments explained 

in the NPRM, this would give DHS 

flexibility to quickly process aliens 

during national health emergencies 

during which placing an alien into 

section 240 proceedings (now, pursuant 

to the Global Asylum Final Rule, into 

asylum-and-withholding-only 

proceedings) may pose a danger to the 

health and safety of other aliens with 

whom the alien is detained, or to DHS 

officials who come into close contact 

with the alien. The government’s 

interest in protecting the security of the 

United States outweighs an alien’s 

interest in receiving protection in the 

country of their choosing. UNHCR itself 

has concluded that ‘‘refugees do not 

have an unfettered right to choose their 

‘asylum country,’ ’’ that, even if their 

‘‘intentions . . . ought to be taken into 

account,’’ they and ‘‘may be returned or 

transferred to a state where they had 

found, could have found or, pursuant to 

a formal agreement, can find 

international protection.’’ 106 UNHCR 

explained that ‘‘[t]he 1951 Convention 

relating to the Status of Refugees and its 

1967 Protocol do not prohibit such 

return or transfer.’’ 107 As discussed, 

pandemics (e.g., COVID–19) can inflict 

catastrophic damage to America’s, and 

the world’s, economy and thus, to the 

security of the United States. To the 

extent that such damage has it origin 

with or can be exacerbated by infected 

aliens seeking to enter the United States 

illegally or without proper documents, 

the Departments believe the entry and 

presence of potentially infected aliens 

in certain circumstances warrant the use 

of discretion to remove aliens placed 

into expedited removal proceedings to 

third countries, avoiding the need for 

their lengthy detention or release into 

American communities during the 

pendency of their asylum-andwithholding-only proceedings. 

Accordingly, the Departments disagree 

with commenters that suggest the rule 

should permit aliens who are subject to 

the danger to the security of the United 

States bars to challenge DHS’s exercise 

of prosecutorial discretion in removing 

them to third countries. 

The Departments remind commenters 

that the danger to the security of the 

United States bars are applicable not 

just during the present COVID–19 

public health emergency, but for future 

pandemics or public health emergencies 

that meet the thresholds in this rule. 

Thus, the application of the bars to 

asylum and withholding of removal will 

be tailored to accommodate the specific 

circumstances of those public health 

emergencies. The application of these 

bars is designed to prevent the entry or 

limit the further spread of serious 

communicable diseases into the United 

States, which would be exacerbated by 

lengthy review processes to review 

claims made by recent entrants to the 

United States. 

5. Other Comments on Proposed 

Changes 

Removal of the Reconsideration of a 

Negative Fear Determination 

Comment: Many commenters, 

including legal services providers and 

advocacy groups, expressed concern 

that proposed 8 CFR 1208.30(g)(2)(iv)(A) 

would eliminate asylum officers’ 

authority to reconsider negative credible 

fear determinations that had been 

affirmed on review by immigration 

judges, which they described as an 

important layer of due process for 

asylum seekers. Multiple commenters 

reasoned that the ability of the asylum 

officer to reconsider provides an 

important safeguard for unrepresented 

and/or traumatized asylum seekers who 

were unable to fully express a fear of 

return during an initial interview and 

review hearing. Several commenters 

argued that preventing reconsideration 

in no way advances the purported 

health objective of the proposed rule. 

Another commenter stated that the lack 

of explanation of such a major change 

suggests an ‘‘alarming lack of 

thoroughness or analysis’’ in the 

Departments’ promulgation of the 

proposal. 

Response: The Departments 

appreciate the comments received, and 

want to state that an inadvertent 

typographical omission resulted in the 

elimination of the existing reference to 

DHS’s reconsideration authority at 

1208.30(g)(2)(iv)(A). In any event, the 

Global Asylum Final Rule reinserted the 

relevant regulatory text at 8 CFR 

208.30(g)(2)(i). DHS may continue to 

reconsider a negative credible fear 

finding that has been concurred upon by 

an immigration judge after providing 


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84182 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

108 84 FR 33829 (July 16, 2019). 109 140 S. Ct. at 1959. 110 Id. at 1963–64. 

notice of its reconsideration to the 

immigration judge. 

Improper Reference to the ThirdCountry Transit Ban 

Comments: Commenters expressed 

concern regarding the interplay of this 

rulemaking effort with the interim final 

rule Asylum Eligibility and Procedural 

Modifications 108 (‘‘Third-Country 

Transit IFR’’). Specifically, commenters 

were concerned that that rule had been 

vacated and enjoined by Federal courts. 

A few commenters asserted that the 

Departments failed to justify why a 

proposed rule focused on an eligibility 

bars based on public health would 

address an unrelated eligibility bar. One 

commenter asserted that the 

Departments should eliminate 

provisions that reference the ThirdCountry Transit IFR or provide 

additional justification for how and why 

the provisions remain pertinent. 

Another commenter argued that the 

reference to the IFR is improper because 

its legitimacy is under review in federal 

courts, has been vacated by at least one, 

and that the Departments provided no 

notice that the third-country transit 

‘‘ban’’ is again being considered for 

incorporation as a regulation. 

Response: The Departments recently 

promulgated the Third-Country Transit 

Final Rule, Asylum Eligibility and 

Procedural Modifications, 85 FR 82260 

(December 17, 2020), which responded 

to comments received on the ThirdCountry Transit IFR and made minor 

changes for clarity and correction of 

typographical errors, and promulgated 

the Global Asylum Final Rule. As these 

rules supersede the Third-Country 

Transit IFR, this Security Bars and 

Processing final rule modifies the 

NPRM’s proposed changes to the ThirdCountry Transit IFR’s regulatory text to 

reflect the text of the now-operative 

Global Asylum Final Rule. This also 

serves to resolve any possible concerns 

regarding modifying the text of a 

regulation subject to a preliminary 

injunction. 

Due Process Concerns 

Comment: Numerous commenters 

expressed concern about the NPRM’s 

impact on due process. A religious 

organization alleged generally that the 

rule would deprive aliens of the 

opportunity to be heard before a judge. 

A legal services provider remarked that 

immigration proceedings must conform 

to the Fifth Amendment’s due process 

requirement and stated that legal 

scholars have observed that expedited 

removal proceedings do not afford 

asylum seekers with important due 

process protections such as access to 

counsel. The commenter said the 

Supreme Court had previously noted its 

‘‘discomfort’’ with the minimal due 

process protections, given the severe 

consequence of deportation, and the 

commenter argued the proposal would 

further diminish due process 

protections by denying asylum seekers 

access to the court and the BIA. 

One commenter alleged, without 

elaboration, that the rule ‘‘circumvents 

mandatory procedural rights enshrined 

in the removal process.’’ Another 

commenter stated that the Due Process 

Clause requires that agencies implement 

procedures for access to ‘‘a statutory 

right to apply for asylum’’ fairly and 

consistently, and argued that the NPRM 

would contravene this requirement by 

‘‘throw[ing] the procedures for accessing 

asylum protections into chaos.’’ 

One commenter argued that 

constitutional due process rights extend 

to aliens and that they are especially 

important in asylum cases, where the 

consequences of adverse decisions are 

severe and could result in deportation, 

torture, or death. The commenter 

claimed further that the rule attempts to 

evade these protections and statutory 

asylum procedures and apply arbitrary, 

unlawful indicia of dangerousness 

without justification. 

An advocacy group wrote that 

UNHCR guidance requires that asylum 

applicants be afforded due process. 

Similarly, an international agency 

commented that ‘‘UNHCR’s position is 

that it is contrary to international law to 

deprive asylum seekers of access to a 

full examination of the substance of 

their claim based on an exclusionary 

ground.’’ The commenter reasoned that 

screening interviews are inadequate to 

assess the factual and legal issues 

surrounding asylum, especially given 

the lack of legal assistance, translation, 

and time to recover from trauma that an 

applicant may face. 

Response: The rule does not violate 

constitutional or statutory due process 

protections. The Supreme Court 

recently ruled in United States v. 

Thuraissigiam 109 (in the context of 

reversing a Ninth Circuit decision that 

had declared the expedited removal 

statute’s limitation on federal habeas 

review as unconstitutional for 

suspending the writ of habeas corpus 

and violating due process) that: 

While aliens who have established 

connections in this country have due process 

rights in deportation proceedings, the Court 

long ago held that Congress is entitled to set 

the conditions for an alien’s lawful entry into 

this country and that, as a result, an alien at 

the threshold of initial entry cannot claim 

any greater rights under the Due Process 

Clause. See Nishimura Ekiu v. United States, 

142 U.S. 651, 660 . . . (1892). Respondent 

attempted to enter the country illegally and 

was apprehended just 25 yards from the 

border. He therefore has no entitlement to 

procedural rights other than those afforded 

by statute.110

[R]espondent contends that IIRIRA 

violates his right to due process by 

precluding judicial review of his 

allegedly flawed credible-fear 

proceeding. . . . The Ninth Circuit 

agreed, holding that respondent ‘‘had a 

constitutional right to expedited 

removal proceedings that conformed to 

the dictates of due process.’’ . . . 

[T]he dissent [is in] correct in 

defending the Ninth Circuit’s holding. 

That holding is contrary to more than a 

century of precedent. In 1892, the Court 

wrote that as to ‘‘foreigners who have 

never been naturalized, nor acquired 

any domicil or residence within the 

United States, nor even been admitted 

into the country pursuant to law,’’ ‘‘the 

decisions of executive or administrative 

officers, acting within powers expressly 

conferred by Congress, are due process 

of law.’’ Nishimura Ekiu, 142 U.S. at 

660. . . . Since then, the Court has 

often reiterated this important rule. See, 

e.g., Knauff, 338 U.S. at 544 . . . 

(‘‘Whatever the procedure authorized by 

Congress is, it is due process as far as 

an alien denied entry is concerned’’); 

Mezei, 345 U.S. at 212 . . . (same); 

Landon v. Plasencia, 459 U.S. 21, 32 

. . . (1982) (‘‘This Court has long held 

that an alien seeking initial admission to 

the United States requests a privilege 

and has no constitutional rights 

regarding his application, for the power 

to admit or exclude aliens is a sovereign 

prerogative’’). 

Respondent argues that this rule does 

not apply to him because he was not 

taken into custody the instant he 

attempted to enter the country (as 

would have been the case had he 

arrived at a lawful port of entry). 

Because he succeeded in making it 25 

yards into U.S. territory before he was 

caught, he claims the right to be treated 

more favorably. The Ninth Circuit 

agreed with this argument. We reject it. 

It disregards the reason for our centuryold rule regarding the due process rights 

of an alien seeking initial entry. That 

rule rests on fundamental propositions: 

‘‘[T]he power to admit or exclude aliens 

is a sovereign prerogative,’’ id., at 32 

. . ; the Constitution gives ‘‘the political 

department of the government’’ plenary 

authority to decide which aliens to 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84183 

111 Id. at 1981–83. 

112 LaChance v. Erickson, 522 U.S. 262, 266 

(1998) (‘‘The core of due process is the right to 

notice and a meaningful opportunity to be heard.’’). 

113 Landon v. Plasencia, 459 U.S. 21, 34 (1982) 

(‘‘In evaluating the procedures in any case, the 

courts must consider the interest at stake for the 

individual, the risk of an erroneous deprivation of 

the interest through the procedures used as well as 

the probable value of additional or different 

procedural safeguards, and the interest of the 

government in using the current procedures rather 

than additional or different procedure.’’). 

admit, Nishimura Ekiu, 142 U.S. at 659 

. . ; and a concomitant of that power is 

the power to set the procedures to be 

followed in determining whether an 

alien should be admitted, see Knauff, 

338 U.S. at 544 . . . . 

This rule would be meaningless if it 

became inoperative as soon as an 

arriving alien set foot on U.S. soil. When 

an alien arrives at a port of entry—for 

example, an international airport—the 

alien is on U.S. soil, but the alien is not 

considered to have entered the country 

for the purposes of this rule. On the 

contrary, aliens who arrive at ports of 

entry—even those paroled elsewhere in 

the country for years pending removal— 

are ‘‘treated’’ for due process purposes 

‘‘as if stopped at the border.’’ Mezei, 345 

U.S. at 215 . . ; see Leng May Ma v. 

Barber, 357 U.S. 185, 188–190 . . . 

(1958); Kaplan v. Tod, 267 U.S. 228, 

230–231 . . . (1925). The same must be 

true of an alien like respondent. As 

previously noted, an alien who tries to 

enter the country illegally is treated as 

an ‘‘applicant for admission,’’ 

§ 1225(a)(1), and an alien who is 

detained shortly after unlawful entry 

cannot be said to have ‘‘effected an 

entry,’’ Zadvydas v. Davis, 533 U.S. 678 

. . . (2001). Like an alien detained after 

arriving at a port of entry, an alien like 

respondent is ‘‘on the threshold.’’ 

Mezei, 345 U.S. at 212 . . . . The rule 

advocated by respondent and adopted 

by the Ninth Circuit would undermine 

the ‘‘sovereign prerogative’’ of governing 

admission to this country and create a 

perverse incentive to enter at an 

unlawful rather than a lawful location. 

Plasencia, 459 U.S. at 32 . . . . 

For these reasons, an alien in 

respondent’s position has only those 

rights regarding admission that Congress 

has provided by statute.111

Due process most fundamentally 

requires notice and an opportunity to be 

heard.112 Contrary to commenters’ 

assertions, this rule does not deprive 

aliens of a hearing before an 

immigration judge. As the Departments 

noted in the NPRM, if an alien subject 

to expedited removal is unable to 

establish during a credible fear 

screening the requisite possibility of 

eligibility for asylum or withholding of 

removal because of the danger to the 

security of the United States eligibility 

bars, the asylum officer’s determination 

is reviewable by an immigration judge, 

as would be the officer’s determination 

that the alien has not established it to 

be more likely than not that he or she 

would be tortured in the prospective 

country of removal. 

If, based on this review, the alien is 

placed in asylum-and-withholding-only 

proceedings, the alien will have an 

opportunity to raise whether he or she 

was correctly identified as subject to the 

bars, as well as other claims. If an 

immigration judge determines that the 

alien was incorrectly determined to be 

subject to the bars, and the alien has 

otherwise established the requisite fear 

of persecution or torture, then the alien 

will be able to seek asylum and 

withholding of removal. And the alien 

can appeal the immigration judge’s 

decision in these proceedings to the BIA 

and then seek review from a federal 

court of appeals. 

As discussed above, a commenter 

argued that the NPRM uses public 

health as a pretext to deny asylum 

because the Departments provide for 

immigration judge review, which can 

take several days, in which time the 

alien may spread or contract a 

dangerous virus while in DHS custody. 

Other commenters faulted the 

Departments for a process they claim to 

be too swift. When read together, 

commenters faulted the Departments for 

providing a review process that presents 

significant risk of spreading a disease 

during a pandemic because of lengthy 

review, while at the same time violating 

due process because the review process 

is too short. The Departments disagree 

with the premise of each assertion, but 

note that these competing arguments 

illustrate the balance that the 

Departments are striving to achieve with 

this rule—mitigating risk of harm while 

providing due process protections.113

The rule balances the interests of public 

safety with that of due process. 

As discussed, the Departments 

disagree that the rule heightens the 

credible fear standard regarding 

potential eligibility for asylum. As 

noted, it clarifies the Departments’ 

understanding of danger to the security 

of the United States bars. It does not 

alter the statutory credible fear standard 

of ‘‘significant possibility.’’ 

The Departments disagree that this 

rule will not be applied fairly and 

consistently, that it deprives aliens of a 

‘‘statutory right to apply for asylum,’’ or 

that it will throw procedures for 

accessing asylum into chaos. This rule 

applies equally and fairly to all aliens 

who enter or attempt to enter the United 

States, whether at the southern border, 

the northern border, or any of the more 

than 300 land, air and sea POEs. 

Further, aliens’ right to apply for asylum 

is, where applicable, limited by the 

expedited removal process, which 

prohibits the filing of an asylum 

application and a full hearing on that 

application where the alien is unable to 

establish the requisite fear of 

persecution or torture. It is not clear 

from the comment how or why the 

asylum system would be thrown into 

chaos. The Departments therefore 

cannot address the claim. 

The Departments also disagree that 

the rule violates due process on the 

basis that it does not conform to UNHCR 

guidance and that screening interviews 

are inadequate. The Departments are not 

bound by UNHCR guidance or supposed 

‘‘international norms.’’ Further, the 

Departments have many years of 

combined experience in implementing 

the credible fear screening and review 

process, and believe the current 

infrastructure and personnel are well 

positioned to implement this final rule. 

Comment: Several commenters argued 

that applying danger to the security of 

the United States bars at the credible 

fear screening stage would deprive 

asylum seekers of a full, fair and 

meaningful opportunity to have their 

asylum claims adjudicated because the 

credible fear screening stage does not 

include due process protections. Other 

commenters remarked that asylum 

seekers with meritorious claims would 

be denied the opportunity to testify and 

present their case before a judge if 

asylum officers determine they are a 

danger to national security on public 

health grounds, even if they are not 

actually infected with COVID–19 or 

another contagious disease. 

A legal services provider described 

the procedural safeguards of section 240 

proceedings, including increased 

opportunity for administrative and 

judicial review, and faulted the proposal 

for conflating threshold eligibility and 

questions of a claim’s ultimate merits 

that are more appropriate for section 

240 proceedings. 

Another legal services provider stated 

that the proposal would deny asylum 

seekers due process by making it easier 

to deport those ‘‘branded as diseased’’ 

before they can access legal counsel to 

help establish the merits of their claims 

to asylum. 

One commenter remarked that the 

proposal would increase the evidentiary 

burden on asylum seekers early in the 

process and would increase the 

likelihood that vulnerable individuals 


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114 23 I&N Dec. at 788–89 (emphasis added). 

115 Id. at 789 (citation omitted). 

116 Id. at 789–90. 

are returned to countries where they 

risk persecution or torture, and argued 

that asylum seekers’ right to avoid being 

returned to countries where their lives 

would be in danger outweighs the 

administrative efficiencies cited as 

justification for the proposal. 

A legal services provider argued that 

applying the danger to the security of 

the United States bars at the credible 

fear stage would lead to ‘‘tremendous 

due process concerns’’ because asylum 

seekers would be forced to present their 

cases to asylum officers without access 

to counsel, after arduous and traumatic 

journeys to the United States, and after 

enduring poor conditions in CBP or ICE 

custody. A professional association 

agreed and stated that expedited 

removal proceedings lack important 

procedural safeguards such as a 

meaningful opportunity to present 

evidence to a neutral factfinder, access 

to legal counsel, the opportunity to 

receive findings of fact and conclusions 

of law, and access to administrative or 

judicial review. A legal services 

provider stated that asylum seekers 

must have access to legal counsel in 

order to ensure an adequate review of 

the merits of their cases in the current 

process and suggested legal assistance 

would be even more important due to 

changes contained in the NPRM. 

Response: The Departments disagree 

that applying the danger to the security 

of the United States bars at the credible 

fear screening violates due process on 

the grounds that it does not provide a 

full, fair and meaningful opportunity for 

an alien to have his or her asylum 

application adjudicated. As noted 

above, the Global Asylum Final Rule 

already took this step. In any event, 

Congress provided for the credible fear 

process, and many aliens seeking 

admission and expressing a fear of 

return to their home countries are 

removed each year on the basis that they 

failed to establish a credible fear. 

The Departments recognize that, 

during a pandemic, aliens with 

otherwise meritorious claims may be 

subject to the danger to the security of 

the United States bars. However, it was 

Congress’s decision to make aliens who 

there are reasonable grounds for 

regarding or believing to be a danger to 

the security of the United States 

categorically ineligible for asylum and 

withholding of removal. In any event, 

aliens who are determined not to have 

a credible fear of persecution or torture 

may seek immigration judge review of 

whether the security bars were properly 

applied. If an immigration judge finds 

the bars were improperly applied, and 

that the alien has established a credible 

fear, the alien will not be removed, but 

rather placed into asylum-andwithholding-only proceedings. 

The Departments also recognize that 

an alien may be subject to the danger to 

the security of the United States bars 

where he or she is not infected with the 

relevant communicable disease at the 

time the determination is made, but 

disagree that this violates due process or 

that it requires a heightened evidentiary 

standard. The bars do not require a 

positive diagnosis, only that DHS or DOJ 

have reasonable grounds for regarding 

the alien as a danger. As noted above, 

the Attorney General in Matter of A–Hruled that ‘‘reasonable’’ in this context 

‘‘implied the use of a ‘reasonable 

person’ standard’’ that was 

‘‘substantially less stringent than 

preponderance of the evidence,’’ and 

instead akin to ‘‘probable cause.’’ 114

The standard ‘‘is satisfied if there is 

information that would permit a 

reasonable person to believe that the 

alien may pose a danger to the national 

security.’’ 115 Further, ‘‘[t]he information 

relied on to support the . . . 

determination need not meet standards 

for admissibility of evidence in court 

proceedings . . . . ‘It [i]s enough that 

the information relied upon by the 

Government [i]s not ‘intrinsically 

suspect.’ ’’ 116 These standards that have 

been previously applied to 

interpretations of the security eligibility 

bars support application of the bars in 

instances where each individual alien is 

not known to be carrying a particular 

disease. Rather, it is enough, for 

example, that the prevalence of disease 

in the countries through which the alien 

has traveled to reach the United States 

makes it reasonable to believe that the 

entry of aliens from that country 

presents a serious danger of 

introduction of the disease into the 

United States. 

The Departments reject the assertion 

that the rule violates due process based 

on the claim that it prohibits access to 

counsel prior to the bars’ application at 

credible fear screenings, or that it 

deprives aliens of a meaningful 

opportunity to present evidence to a 

neutral factfinder, to receive findings of 

fact and conclusions of law, or to access 

administrative or judicial review. The 

rule does not alter the ability of aliens 

to consult with counsel, INA 

235(b)(1)(B)(iv), 8 U.S.C. 

1225(b)(1)(B)(iv), to present testimony to 

the asylum officer in an interview 

conducted in a non-adversarial manner, 

with the goal of eliciting all relevant and 

useful information bearing on whether 

the alien can establish a credible fear of 

persecution, reasonable possibility of 

persecution, reasonable possibility of 

torture, or whether it is more likely than 

not that the alien will be tortured in the 

prospective country of removal, INA 

235(b)(1)(B)(iii)(II), 8 U.S.C. 

1225(b)(1)(B)(iii)(II), 8 CFR 208.30(d), or 

to request an immigration judge’s de 

novo review of the asylum officer’s 

determination, INA 235(b)(1)(B)(iii)(III), 

8 U.S.C. 1225(b)(1)(B)(iii)(III), 8 CFR 

1003.42(d)(1). 

Comment: Some commenters 

emphasized that the NPRM could allow 

the removal of an applicant seeking 

deferral of removal to a third country 

before the adjudication of the case in 

immigration court by an immigration 

judge. Some commenters claimed that 

removing asylum seekers to third 

countries before their pending asylum 

claims are adjudicated would unfairly 

and illegally deprive them of the 

opportunity to establish eligibility for 

asylum. A legal services provider said 

the proposed rule’s efforts to effectuate 

third country removals would 

deliberately interfere with EOIR’s 

review of the merits of the asylum 

seeker’s claim, who could be deported 

abruptly prior to their day in court. 

Another commenter said the rule 

would deport thousands of people to 

likely deaths before they even have a 

chance to express their fear. 

Response: The Departments disagree 

that the rule allows for the removal of 

an alien seeking protection from a third 

country before their asylum claims are 

adjudicated. The rule provides for 

removal to a third country only after the 

alien has been determined by an asylum 

officer to not have a credible fear of 

persecution or a reasonable possibility 

of persecution or torture due to the 

danger to the security of the United 

States bars, and only after the alien has 

had an opportunity for de novo review 

of that determination by an immigration 

judge. Thus, the alien’s only available 

form of protection, should the alien be 

eligible, would be deferral of removal, 

which only protects the alien from 

removal to the particular country from 

which removal has been deferred. 8 CFR 

208.17(b)(2). Thus, removal to a third 

country prior to a full adjudication of 

the deferral claim does not deprive the 

alien of protection that would be 

provided by deferral—removal to that 

particular country. Rather, it brings 

efficiency to the process by treating the 

alien as though he or she has received 

such protection without the need for a 

full adjudication of the deferral claim. 

Under this rule, DHS will provide 

notice to the alien of the prospective 

third country, and the alien will have an 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84185 

117Notice of Order Under Sections 362 and 365 

of the Public Health Service Act Suspending 

Introduction of Certain Persons From Countries 

Where a Communicable Disease Exists, 85 FR 

17060, 17067 (Mar. 20, 2020). 

118 5 U.S.C. 553(c). 

119Nat’l Lifeline Ass’n v. Fed. Commc’ns 

Comm’n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) 

(citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 

1984)). 120Security Bars and Processing, 85 FR at 41201. 

opportunity to establish that he or she 

would be more likely than not to be 

tortured in such third country. Even the 

current deferral of removal regulations 

provide that an alien who is granted 

deferral be informed ‘‘that removal has 

been deferred only to the country in 

which it has been determined that the 

alien is likely to be tortured, and that 

the alien may be removed at any time 

to another country where he or she is 

not likely to be tortured.’’ 8 CFR 

208.17(b)(2), 1208.17(b)(2). 

6. Other Issues Related to the Rule 

1. Requests to Extend Comment Period 

Comment: Several commenters 

requested that the Departments extend 

the 30-day comment period, citing the 

APA, Executive Order 12866, and 

instances where rulemakings have been 

open longer than 60 days. Some 

commenters claimed that the rule is 

complex, sweeping, and that it would 

rewrite fundamental aspects of U.S. 

asylum law, arguing that the 30-day 

comment period is therefore insufficient 

to analyze the impact of the proposed 

changes and receive proper input from 

key stakeholders such as public health 

and medical experts. Several other 

commenters argued that the 30-day 

comment period is particularly 

inadequate given the COVID–19 crisis, 

which had already taxed the resources 

and capacity of organizations. Multiple 

commenters stated that the comment 

period was inappropriate given the 

concurrent proposed rule Procedures for 

Asylum and Withholding of Removal; 

Credible Fear and Reasonable Fear 

Review, 85 FR 36264 (June 15, 2020) 

(‘‘Global Asylum NPRM’’), which closed 

for comments on July 15, 2020. Several 

commenters claimed that there was a 

lack of urgency in promulgating this 

final rule given that few asylum 

interviews are occurring because of the 

March 20, 2020 CDC order.117 One 

commenter asserted that asylees, lawful 

permanent residents, and U.S citizens 

who have family members with pending 

determinations did not provide 

comment on this rule due to fear of 

retaliation from the Administration and 

thus the comment period is missing 

critical stakeholder input. 

Response: The Departments disagree 

that the comment period was 

insufficient and decline to extend it. 

The Departments also disagree with the 

commenters’ characterizations of the 

rule as complex, sweeping, or rewriting 

fundamentals of asylum law. The rule is 

designed to be as narrow as the scope 

of a given public health emergency, and 

is only operable under a discrete set of 

circumstances during such an 

emergency. The rule merely clarifies 

that the Departments’ understanding of 

the danger to the security of the United 

States bars to eligibility for asylum and 

withholding of removal encompasses 

public health concerns, restores 

prosecutorial discretion to DHS, and 

streamlines the process for screening for 

potential eligibility for deferral of 

removal under the CAT regulations. The 

Departments also disagree that the 

comment period should have been 

longer due to the Global Asylum NPRM. 

This rule is separate and distinct, 

dealing with a much more limited set of 

issues. 

The APA is silent as to the duration 

of the public comment period and does 

not establish a minimum duration.118

Executive Order 12866 encourages, but 

does not require, agencies to provide at 

least 60 days for the public to comment 

on significant rules. Federal courts have 

presumed 30 days to be a reasonable 

comment period length. For example, 

the D.C. Circuit has stated that ‘‘[w]hen 

substantial rule changes are proposed, a 

30-day comment period is generally the 

shortest time period sufficient for 

interested persons to meaningfully 

review a proposed rule and provide 

informed comment.’’ 119 The 

Departments believe that the 32-day 

comment period for this rule provided 

an adequate opportunity for public 

input, and decline to extend the period. 

Contrary to commenters’ claims that this 

rule lacks urgency, the duration of the 

comment period is a reflection of the 

urgency with which the Departments 

believe they must address public health 

concerns given the ongoing pandemic 

and risk of future pandemics. 

The sufficiency of the 32-day 

comment period for this rule is 

supported by the over 5,000 public 

comments received. The public, 

including attorneys, advocacy groups, 

religious, community, and social 

organizations, law firms, federal, state 

and local entities and elected officials 

provided a great number of detailed and 

informative comments. Given the 

quantity and quality of the comments 

received in response to the proposed 

rule, and other publicly available 

information regarding the rule, the 

Departments believe that the 32-day 

comment period was sufficient. The 

Departments recognize that the 

comment period was open during the 

ongoing COVID–19 pandemic, but 

disagrees that it should be extended on 

that basis. Over 5,000 comments were 

successfully submitted and accepted 

online, not requiring in-person 

transmission of comments or even use 

of the U.S. Postal Service. 

The Departments reject the assertion 

that some members of the public were 

unable to provide comments due to 

their immigration status. One 

commenter asserted, without evidence, 

that asylees, lawful permanent 

residents, and U.S citizens who have 

family members with pending 

determinations did not provide 

comment on this rule due to fear of 

retaliation from the Administration and 

thus the comment period is missing 

critical stakeholder input. The 

Departments solicited comments from 

all interested persons as part of this 

rulemaking. The Departments neither 

solicited nor required persons to 

provide information about their 

immigration status in order to submit a 

comment, and the Department would 

have no way of knowing the status of 

any commenter unless volunteered. In 

the NPRM, the Departments cautioned 

commenters that ‘‘all comments 

received are considered part of the 

public record and made available for 

public inspection . . . . Such 

information includes personally 

identifiable information (such as a 

person’s name, address, or any other 

data that might personally identify that 

individual) that the commenter 

voluntarily submits.’’ 120

2. Rulemaking Process/APA Concerns 

Comment: Approximately 20 

submissions expressed concerns that the 

NPRM does not comply with the APA. 

Multiple commenters argued that it is 

arbitrary and capricious because it does 

not meet the Departments’ statutory, 

non-refoulement, and constitutional 

mandates to protect asylum seekers’ 

rights or because it raises the burden of 

proof on asylum; fails to consider other 

factors that could mitigate the risk of 

COVID–19 infection; uses COVID–19 as 

a pretext to exclude applicants from 

countries where COVID–19 is prevalent, 

but less prevalent than in the United 

States; fails to demonstrate that the 

Departments engaged in reasoned, datadriven decision making; and was 

written in a piecemeal and duplicative 

fashion, which demonstrates an intent 

to evade comprehensive evaluation and 

comment. 


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121 Little Sisters of the Poor Saints Peter & Paul 

Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020) 

(explaining that the APA provides the ‘‘maximum 

procedural requirements’’ that an agency must 

follow in order to promulgate a rule). 

122 Michigan v. EPA, 576 U.S. 743, 750 (2015), 

quoting Allentown Mack Sales & Service, Inc. v. 

NLRB, 522 U.S. 359 (1998). 

123 FCC v. Fox Television Stations, Inc., 556 U.S. 

502, 513 (2009). 

124Citizens to Preserve Overton Park, Inc. v. 

Volpe, 401 U.S. 402, 416 (1971). 

125Sacora, 628 F.3d at 1068. 

126 Id. at 1069. 

127 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). 

128World Bank, Press Release: Latin America and 

the Caribbean Must Seek to Contain the Costs from 

COVID–19 While Waiting for a Vaccine, Oct. 9, 

2020, available at https://www.worldbank.org/en/ 

news/press-release/2020/10/09/latin-americacaribbean-contain-costs-covid19. 

129Abhaya Srivastava, India Infections Top Seven 

Million . . . , Int. Bus. Times, Oct. 11, 2020. 

130 Government of Mexico, COVID–19 Tracking 

Map, Graph of Confirmed Cases, https://

datos.covid-19.conacyt.mx/#DOView (last visited 

December 17, 2020). 

131 Government of Mexico, COVID–19 Tracking 

Map https://datos.covid-19.conacyt.mx/#COMNac 

and https://datos.covid-19.conacyt.mx/fHDMap/ 

(last visited December 17, 2020). 

One commenter stated that the timing 

of this rule merits very close scrutiny 

given the recent publication of the 

Global Asylum NPRM, asserting that 

this demonstrates apparent bad faith by 

attempting a ‘‘second bite at the apple’’ 

and that the Departments’ public health 

rationale should not be granted 

deference. 

A legal services provider claimed that 

the rule is arbitrary and capricious 

because it ‘‘ignores the significant 

reliance interests of [the legal service 

provider] and organizations like it.’’ 

Namely, the organization stated that it 

has developed processes and 

educational material for asylum seekers 

and for its staff and volunteers based on 

asylum law ‘‘as it currently exists,’’ and 

that it ‘‘trains its staff, volunteers, and 

pro bono attorneys on asylum law using 

curricula that have been standardized 

and perfected.’’ It argued that the rule 

‘‘would require [the organization] to 

expend significant resources to revise, 

reprint, and retrain all of this existing 

materials and procedures, to the 

detriment of [the organization] and the 

communities it serves.’’ 

Response: The Departments also 

disagree with commenters’ claim that 

the Departments purposefully separated 

their asylum-related policy goals into 

separate regulations in order to prevent 

the public from being able to 

meaningfully review and provide 

comment. Each of the Departments’ 

rules stand on their own, include 

explanations of their basis and purpose, 

and allow for public comment, as 

required by the APA.121

The Departments also disagree that 

the promulgation of this rule is arbitrary 

and capricious or that it violates the 

APA. As discussed previously, the APA 

requires agencies to engage in ‘‘reasoned 

decision making’’ 122 and directs that 

agency action be set aside if it is 

arbitrary or capricious, 5 U.S.C. 

706(2)(A). However, this is a ‘‘narrow 

standard of review’’ and ‘‘a court is not 

to substitute its judgment for that of the 

agency,’’ 123 but is instead to assess only 

whether the decision was ‘‘based on a 

consideration of the relevant factors and 

whether there has been a clear error of 

judgment.’’ 124 Arbitrary and capricious 

review is ‘‘highly deferential, presuming 

the agency action to be valid.’’ 125 It is 

‘‘reasonable for the [agency] to rely on 

its experience’’ to arrive at conclusions, 

even if those conclusions are not 

supported with ‘‘empirical research.’’ 126

Moreover, the agency need only 

articulate ‘‘a rational connection 

between the facts found and the choice 

made.’’ 127

Under this deferential standard, and 

contrary to commenters’ claims, the 

Departments have provided reasoned 

explanations for the changes in this rule 

more than sufficient to satisfy the APA’s 

procedural requirements. The NPRM 

and final rule describe each provision in 

detail and provides an explanation for 

each change from current law or from 

the NPRM. The Departments explained 

that these changes are intended to 

mitigate the risk of a dangerous 

communicable disease being brought to, 

or further spread within, the United 

States. 

The Departments disagree that the 

rule exceeds statutory authority. This 

rule clarifies that existing statutory 

limitations on asylum and withholding 

eligibility may include emergency 

public health concerns. This falls 

squarely within the Departments’ 

statutory authority. 

The Departments also disagree that 

the rule raises the burden of proof on 

asylum seekers beyond the international 

standard. First, the rule continues to 

apply the statutory standard of credible 

fear of persecution, defined as a 

significant possibility that an alien 

could establish eligibility for asylum. 

Second, the ultimate standard for 

statutory withholding of removal and 

protection under the CAT regulations— 

intended by Congress to meet the 

United States’ non-refoulement 

obligations under the Refugee protocol 

and CAT—remains the same at ‘‘more 

likely than not.’’ 

Contrary to commenters’ assertions, 

the Departments did consider and 

implement other factors that could 

mitigate risk of COVID–19 infection. 

The Departments also reject as 

unfounded the assertion that the rule 

uses COVID–19 as a pretext to exclude 

applicants from countries where 

COVID–19 is prevalent, but less 

prevalent than in the United States. The 

rule is not limited to the COVID–19 

pandemic, and is intended to allow the 

Departments to respond quickly and 

effectively to unknown future health 

emergencies that meet the criteria it 

defines. Additionally, the rule applies 

equally to all countries or regions 

outside the United States where a 

‘‘disease is prevalent or epidemic,’’ but 

does not require that the disease be 

‘‘less prevalent’’ in the United States at 

the time the determination is made. Due 

to inconsistencies in reporting 

standards, lack of reporting, or 

intentional misreporting, it can be 

difficult to gauge at any given time 

whether a disease is more prevalent 

than in the United States. Moreover, the 

Departments have a duty to ensure the 

security of the United States without 

regard to whether the pandemic is more 

prevalent or less prevalent elsewhere. 

Recently, the number of COVID–19 

cases has been overwhelming in 

countries where a significant number of 

asylum seekers originate from or travel 

through. The vast majority of 

inadmissible aliens seeking asylum 

originate from or travel through areas 

where COVID–19 is widespread, such as 

Latin America. The World Bank recently 

noted that ‘‘Latin America and 

Caribbean is the region hardest hit by 

the COVID–19 Pandemic’’ 128 and it was 

recently reported that ‘‘Latin America 

and the Caribbean marked 10 million 

cases. . . and with more than 360,000 

deaths, the region is the worst hit in 

terms of fatalities, according to official 

figures.’’ 129

As of December 15, 2020, Mexico had 

1,277,494 cumulative COVID–19 cases, 

including 166,733 new cases in October, 

182,705 new cases in November, and 

115,967 new cases in December (as of 

December 15).130 Areas along the U.S. 

southwest border are also seeing a high 

number of positive COVID–19 cases. For 

example, in Sonora, Mexico, there have 

been 47,476 confirmed cases (and 

[3,759] deaths) as of December 15, 2020, 

including 4,075 new cases in October, 

5,373 new cases in November, and 2,090 

new cases in December (as of December 

15).).131

The Departments disagree that this 

rulemaking is piecemeal or duplicative, 

and reject the assertion that the NPRM 

was intended to evade comprehensive 

evaluation and comment, or that the 


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132 Global Asylum Final Rule, 85 FR at 80284. 

133CDC, Press Release: First Travel-related Case 

of 2019 Novel Coronavirus Detected in United 

States (Jan 21, 2020), available at https://

www.cdc.gov/media/releases/2020/p0121-novelcoronavirus-travel-case.html (last visited Nov. 12, 

2020). 

134 Dept. of Homeland Sec. v. Regents of Univ. of 

Cal., 140 S.Ct. 1891, 1913 (2020). 

135See Proclamation No. 9645, Enhancing Vetting 

Capabilities and Processes for Detecting Attempted 

Entry into the United States by Terrorists or Other 

Public-Safety Threats, 82 FR 45161 (Sept. 24, 2017). 

136 Global Asylum NPRM, 85 FR at 36278. 

137Some courts believe that such interests of 

organizational plaintiffs establish standing, but that 

is a separate matter. See East Bay Sanctuary 

Covenant v. Trump, 950 F.3d 1242, 1265–67 (2020). 

Article III of the Constitution limits the federal 

judicial power to the adjudication of ‘‘Cases’’ and 

‘‘Controversies.’’ U.S. CONST. art. III, sec. 2, cl. 1. 

This is effectuated through the doctrine of Article 

III standing. Spokeo v. Robins, 136 S. Ct. 1540, 1547 

(2016); Havens Realty Corp. v. Coleman, 455 U.S. 

363, 378–79 (1982). An organization can also have 

third-party standing. See Kowalksi v. Tesmer, 543 

U.S. 125, 129–30 (2004). 

timing of this rulemaking in conjunction 

with the Global Asylum NPRM 

evidences bad faith. Though there is 

some overlap in function, these separate 

rulemakings had different goals and 

responded to separate emergencies. 

Namely, the Global Asylum NPRM 

sought to provide ‘‘much-needed 

guidance on the many critical, yet 

undefined, statutory terms related to 

asylum applications [in a manner that] 

not only improves the efficiency of the 

system as a whole, but allows 

adjudicators to focus resources more 

effectively on potentially meritorious 

claims rather than on meritless 

ones.’’ 132

As discussed, the Security Bars NPRM 

sought to ensure the security of the 

United States during a pandemic. 

Further, the Covid–19 pandemic postdates the Global Asylum NPRM. The 

Departments note that in November of 

2019, the Global Asylum NPRM was 

listed in the Fall 2019 Unified Agenda, 

approximately 2 months before the first 

reported cases of Covid–19 in the 

United States.133 Finally, as stated 

above, this final rule is narrowly 

tailored to apply under a discrete set of 

circumstances generally limited in 

duration, whereas the Global Asylum 

NPRM applied much more broadly and 

on a permanent basis (as does the Global 

Asylum Final Rule). The Departments 

provided more than sufficient notice of 

both rules, and the public has had 

ample opportunity to participate in the 

rulemaking process. 

The Departments disagree that this 

final rule is arbitrary and capricious or 

that it ‘‘ignores the significant reliance 

interests of [the legal service provider] 

and organizations like it.’’ Given the 

narrow application of this rule to public 

health emergencies involving 

communicable diseases that necessitate 

a response by the federal agencies with 

primary jurisdiction over our 

immigration system, and the 

infrequency of such responses in the 

past, it cannot be said that there is a 

longstanding prior policy that may have 

engendered serious reliance interests. 

When an agency changes course, it must 

‘‘be cognizant that longstanding policies 

may have ‘engendered serious reliance 

interests that must be taken into 

account.’ ’’ 134

As prior to the COVID–19 public 

health emergency, the Departments did 

not have a policy in place to guide the 

immigration system’s operations during 

public health emergencies involving 

communicable diseases, there are no 

reliance interests to consider. Rather, 

individuals or organizations will rely— 

during future public health 

emergencies—upon the steps the 

Government takes now. Given that the 

United States has significantly limited 

travel and admission during times of 

other emergencies, such as in response 

to national security threats from 

international terrorism,135 it is 

predictable that it would take similar, 

expected measures limiting travel and 

admission in response to a global 

pandemic. 

The commenter asserts, in essence, 

that it relied on the agency’s prior 

policy when it developed processes and 

educational material for asylum seekers 

and for its staff and volunteers based on 

asylum law ‘‘as it currently exists.’’ It 

argued that the rule ‘‘would require [it] 

to expend significant resources to 

revise, reprint, and retrain all of this 

existing materials and procedures, to the 

detriment of [the organization] and the 

communities it serves.’’ However, the 

United States’ asylum law is frequently 

in flux because it can be amended by 

statute, regulation, policy, adjudication 

and by ever-evolving case law in 

decisions issued by the Attorney 

General, the BIA, Circuit Courts of 

Appeals and by the U.S. Supreme Court. 

As just one example, as the Departments 

stated in Global Asylum NPRM, ‘‘[t]he 

definition of ‘particular social group’ 

has been the subject of considerable 

litigation and is a product of evolving 

case law, making it difficult for EOIR’s 

immigration judges and Board members, 

as well as DHS asylum officers, to 

uniformly apply the framework.’’ 136

It is not reasonable for an organization 

to assume that asylum law will remain 

static and not change in the future when 

developing processes or education 

materials. The logical result of the 

commenter’s argument would be that 

any law firm or legal aid organization 

with a specialized practice would have 

a legally recognized reliance interest in 

maintaining the status quo of the law 

that concerns their clients. While the 

Departments appreciate the efforts of 

legal service providers to assist and 

educate the public, the interests raised 

by the commenter are not those that 

may raise serious reliance interests 

under the APA.137

Finally, to the extent that such 

organizations have a reliance interest 

based on their processes and 

educational materials, it is far 

outweighed by the clear imperative to 

prevent the entry into the United States, 

or the further spread within the country, 

of a deadly contagious disease. 

Reconciliation With Procedures for 

Asylum and Withholding of Removal; 

Credible Fear and Reasonable Fear 

Review, 85 FR 36264 (July 15, 2020) 

Comment: Multiple commenters 

stated that this NPRM was not 

reconciled with the Global Asylum 

NPRM. Commenters argued that the 

Global Asylum NPRM proposed changes 

that were inconsistent with the changes 

outlined in the Security Bars and 

Processing NPRM. The commenters 

stated that the Security Bars NPRM 

acknowledged the conflict but did not 

indicate how the two rules would be 

reconciled and reasoned that without 

knowledge of how the rules would be 

reconciled; the public was not able to 

understand the full implications and 

adequately comment on the NPRM. 

Some commenters stated that the 

overlapping and inconstant language 

across the two notices of proposed 

rulemaking demonstrated resulted in a 

waste of government and public time 

and resources. 

Response: The Departments drafted 

the Security Bars NPRM to reflect the 

regulatory framework at the time of 

publication. The Global Asylum Final 

Rule has since been promulgated. 85 FR 

80274 (December 11, 2020). The 

Security Bars and Processing Final Rule 

reflects the changes made to the 

regulatory framework by the Global 

Asylum Final Rule, except to the extent 

that the Security Bars Final Rule further 

modifies that framework. Certain of the 

provisions of the Security Bars NPRM 

have been rendered moot by the Global 

Asylum Final Rule. For instance, the 

Global Asylum Final Rule provided that 

all mandatory bars to eligibility for 

asylum and withholding of removal 

shall be applied at the credible fear 

stage, so there is no longer a need to 


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138 85 FR at 80284. 

take that action specifically for the 

danger to the security of the United 

States eligibility bar. As to the 

provisions of the Security Bars NPRM 

that were not implemented by the 

Global Asylum Final Rule, the Security 

Bars Final Rule makes appropriate 

modifications to the post-Global Asylum 

regulatory framework to implement the 

provisions (as modified from the NPRM 

in certain instances). 

Additionally, as discussed, the Global 

Asylum Final Rule provided that aliens 

who establish a credible fear of 

persecution, a reasonable possibility of 

persecution, or a reasonable possibility 

of torture and accordingly receive a 

positive fear determination will appear 

before an immigration judge for 

‘‘asylum-and-withholding-only’’ 

proceedings under 8 CFR 208.2(c)(1) 

and 8 CFR 1208.2(c)(1). Aliens receiving 

positive fear determinations under the 

Security Bars Final Rule will be placed 

in such asylum-and-withholding only 

proceedings rather than section 240 

proceedings (as they would have under 

the NPRM), unless they are removed to 

third countries. 

3. Severability 

Comment: One commenter 

appreciated the ‘‘spirit’’ of the 

Departments’ proposed severability 

clause, but stated that the clause was 

unnecessary because, in the 

commenter’s view, none of the rule’s 

provisions should be adopted. 

Response: The relevant severability 

clause was added by the Global Asylum 

Final Rule.138 A severability clause is a 

standard legal provision that allows 

Congress and the Executive Branch to 

sever certain provisions of a law or rule, 

if a court finds that they are 

unconstitutional or unlawful, without 

nullifying the entire law or rule. Those 

provisions that are unaffected by a legal 

ruling can be implemented by an agency 

without requiring a new round of 

rulemaking simply to effectuate 

provisions that are not subject to a court 

ruling. The Departments believe that 

each of the provisions in the final rule 

function sensibly independently of the 

other provisions, and thus, to protect 

the rule’s goals, the provisions are 

severable so that, if necessary, the 

regulations can continue to function 

without a stricken provision. 

4. Effective Date 

Comment: A number of submissions 

expressed concern about the rule’s 

effective date. One commenter stated 

that the NPRM did not indicate whether 

it would apply to those who submitted 

asylum applications before its 

provisions became effective, and argued 

that doing so would violate the wellsettled presumption against retroactivity 

and have serious impacts for asylum 

seekers. The commenter also expressed 

concern that retroactive application 

would result in removal to a third 

country for those who have previously 

filed for CAT protection based on 

existing laws. Another commenter 

stated that applying the rule to those 

with pending applications would 

unduly harm thousands of asylum 

seekers, especially pro se applicants, by 

creating waste and inefficiencies and by 

increasing asylum adjudication 

backlogs. Both commenters asserted that 

retroactive application of law is 

permitted only where expressly 

permitted by Congress, which they 

argue does not apply here. 

Response: The Departments disagree 

that this rule is being applied 

retroactively. Contrary to the 

commenters’ claims, and as previously 

stated in the NPRM, the amendments 

made by this proposed rule would apply 

to aliens who enter the United States 

after the effective date, except that the 

amendments would not apply to aliens 

who had, before the date of an 

applicable joint Secretary of Homeland 

Security and Attorney General 

designation of an area or areas of the 

world as to which it is necessary for the 

public health that certain aliens who 

were present there be regarded as a 

danger to the security of the United 

States, (1) filed asylum and withholding 

applications, or (2) indicated a fear of 

return in expedited removal 

proceedings.’’ The final rule retains this 

prospective application. 

Authority of Acting Secretary 

Comment: Several commenters 

commented that Chad Wolf, the Acting 

Secretary of Homeland Security, is 

serving in violation of the Federal 

Vacancies Reform Act (‘‘FVRA’’) and 

lacked the authority to issue the NPRM. 

A legal services provider and individual 

made the same argument with respect to 

Chad Mizelle, the Senior Official 

Performing the Duties of the General 

Counsel of DHS. An attorney quoted 

FVRA and commented that under any 

timeline Acting Secretary Wolf’s tenure 

has exceeded the 210-day limit in 

FVRA, and that no exception to the 210- 

limit applies here. The commenter said 

that ignoring FVRA is no ‘‘mere 

technicality,’’ and that doing so violates 

the constitutional principal that the 

President must appoint principal 

officers with the advice and consent of 

the Senate. 

A legal services provider presented a 

timeline of the line of succession of 

Acting Secretaries, arguing that 

Christopher Krebs, Director of the 

Cybersecurity and Infrastructure 

Security Agency, rather than Kevin 

McAleenan, should have succeeded Ms. 

Nielsen as Acting Secretary. The 

commenter also argued that Mr. 

McAleenan exceeded the 210-day limit 

provided by the FVRA, and thus that 

Mr. Wolf has no valid claim to the office 

of Acting Secretary. 

Response: As indicated in the 

proposed rule at section VI. H, Chad 

Wolf, the Acting Secretary of Homeland 

Security, reviewed and approved the 

proposed rule and delegated the 

signature authority to Mr. Mizelle. 

Secretary Wolf is validly acting as 

Secretary of Homeland Security. On 

April 9, 2019, then-Secretary Nielsen, 

who was Senate confirmed, used the 

authority provided by 6 U.S.C. 113(g)(2) 

to establish the order of succession for 

the Secretary of Homeland Security. 

This change to the order of succession 

applied to any vacancy. This exercise of 

the authority to establish an order of 

succession for DHS pursuant to 6 U.S.C. 

113(g)(2) superseded the FVRA and the 

order of succession found in Executive 

Order 13753, 81 FR 90667 (Dec. 9, 

2016). As a result of this change, and 

pursuant to 6 U.S.C. 113(g)(2), Kevin K. 

McAleenan, who was Senate-confirmed 

as the Commissioner of CBP, was the 

next successor and served as Acting 

Secretary without time limitation. 

Acting Secretary McAleenan 

subsequently amended the Secretary’s 

order of succession pursuant to 6 U.S.C. 

113(g)(2), placing the Under Secretary 

for Strategy, Policy, and Plans position 

third in the order of succession, below 

the positions of the Deputy Secretary 

and Under Secretary for Management. 

Because the Deputy Secretary and 

Under Secretary for Management 

positions were vacant when Mr. 

McAleenan resigned, Mr. Wolf, as the 

Senate-confirmed Under Secretary for 

Strategy, Policy, and Plans, was the next 

successor and began serving as the 

Acting Secretary. 

Further, because he has been serving 

as the Acting Secretary pursuant to an 

order of succession established under 6 

U.S.C. 113(g)(2), the FVRA’s prohibition 

on a nominee’s acting service while his 

or her nomination is pending does not 

apply, and Mr. Wolf remains the Acting 

Secretary notwithstanding President 

Trump’s September 10 transmission to 

the Senate of Mr. Wolf’s nomination to 

serve as DHS Secretary. Compare 6 

U.S.C. 113(a)(1)(A) (cross-referencing 

the FVRA without the 

‘‘notwithstanding’’ caveat), with id. 


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Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 84189 

139Mr. Gaynor signed an order that established an 

identical order of succession on September 10, 

2020, the day Mr. Wolf’s nomination was 

submitted, but it appears he signed that order before 

the nomination was received by the Senate. To 

resolve any concern that his September 10 order 

was ineffective, Mr. Gaynor signed a new order on 

November 14, 2020. Prior to Mr. Gaynor’s new 

order, the U.S. District Court for the District of New 

York issued an opinion concluding that Mr. Gaynor 

did not have authority to act as Secretary, relying 

in part on the fact that DHS did not notify Congress 

of Administrator Gaynor’s service, as required 

under 5 U.S.C. 3349(a). Batalla Vidal v. Wolf, No. 

16CV4756NGGVMS, 2020 WL 6695076, at *9 

(E.D.N.Y. Nov. 14, 2020). The Departments disagree 

that the FVRA’s notice requirement affects the 

validity of an acting officer’s service; nowhere does 

section 3349 indicate that agency reporting 

obligations are tied to an acting officer’s ability to 

serve. 

140On October 9, 2020, the U.S. District Court for 

the District of Columbia issued an opinion 

indicating that it is likely that section 113(g)(2) 

orders can be issued by only Senate-confirmed 

secretaries of DHS and, thus, that Mr. Gaynor likely 

had no authority to issue a section 113(g)(2) 

succession order. Nw. Immigrant Rights Project v. 

United States Citizenship & Immigration Servs., No. 

CV 19–3283 (RDM), 2020 WL 5995206, at *24 

(D.D.C. Oct. 8, 2020). This decision is incorrect 

because the authority in section 113(g)(2) allows 

‘‘the Secretary’’ to designate an order of succession, 

6 U.S.C. 113(g)(2), and an ‘‘acting officer is vested 

with the same authority that could be exercised by 

the officer for whom he acts.’’ In re Grand Jury 

Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019). 

The Acting Secretary of DHS is accordingly 

empowered to exercise the authority of ‘‘the 

Secretary’’ of DHS to ‘‘designate [an] order of 

succession.’’ 6 U.S.C. 113(g)(2). In addition, this is 

the only district court opinion to have reached such 

a conclusion about the authority of the Acting 

Secretary, and the Departments are contesting that 

determination. 

113(g)(1)–(2) (noting the FVRA 

provisions and specifying, in contrast, 

that section 113(g) provides for acting 

secretary service ‘‘notwithstanding’’ 

those provisions); see also 5 U.S.C. 

3345(b)(1)(B) (restricting acting officer 

service under section 3345(a), in 

particular, by an official whose 

nomination has been submitted to the 

Senate for permanent service in that 

position). 

That said, there have been recent 

challenges to whether Mr. Wolf’s service 

is invalid, resting on the erroneous 

contention that the orders of succession 

issued by former Secretary Nielsen and 

former Acting Secretary McAleenan 

were invalid. The Departments believe 

those challenges are not based on an 

accurate view of the law. But even if 

those contentions are legally correct— 

meaning that neither former Secretary 

Nielsen nor former Acting Secretary 

McAleenan issued a valid order of 

succession—under 6 U.S.C. 113(g)(2)— 

then the FVRA would have applied, and 

Executive Order 13753 would have 

governed the order of succession for the 

Secretary of Homeland Security from 

the date of former Secretary Nielsen’s 

resignation. 

The FVRA provides an alternative 

basis for an official to exercise the 

functions and duties of the Secretary 

temporarily in an acting capacity. In 

that alternate scenario, under the 

authority of the FVRA, Mr. Wolf would 

have been ineligible to serve as the 

Acting Secretary of DHS after his 

nomination was submitted to the 

Senate, 5 U.S.C. 3345(b)(1)(B), and Peter 

Gaynor, the Administrator of the 

Federal Emergency Management Agency 

(‘‘FEMA’’), would have—by operation of 

Executive Order 13753—become eligible 

to exercise the functions and duties of 

the Secretary temporarily in an acting 

capacity. This is because Executive 

Order 13753 pre-established the 

President’s succession order for DHS 

when the FVRA applies. Mr. Gaynor 

would have been the most senior official 

eligible to exercise the functions and 

duties of the Secretary under that 

succession order, and thus would have 

become the official eligible to act as 

Secretary once Mr. Wolf’s nomination 

was submitted to the Senate. 5 U.S.C. 

3346(a)(2). Then, in this alternate 

scenario in which, as assumed above, 

there was no valid succession order 

under 6 U.S.C. 113(g)(2), the submission 

of Mr. Wolf’s nomination to the Senate 

would have restarted the FVRA’s time 

limits. 5 U.S.C. 3346(a)(2). 

Out of an abundance of caution, and 

to minimize any disruption to DHS and 

to the Administration’s goal of 

maintaining homeland security, on 

November 14, 2020, with Mr. Wolf’s 

nomination still pending in the Senate, 

Mr. Gaynor exercised the authority of 

Acting Secretary that he would have 

had (in the absence of any governing 

succession order under 6 U.S.C. 

113(g)(2)) to designate a new order of 

succession under 6 U.S.C. 113(g)(2) (the 

‘‘Gaynor Order’’).139 In particular, Mr. 

Gaynor issued an order of succession 

with the same ordering of positions 

listed in former Acting Secretary 

McAleenan’s November 2019 order. The 

Gaynor Order thus placed the Under 

Secretary for Strategy, Policy, and Plans 

above the FEMA Administrator in the 

order of succession. Once the Gaynor 

Order was executed, it superseded any 

authority Mr. Gaynor may have had 

under the FVRA and confirmed Mr. 

Wolf’s authority to continue to serve as 

the Acting Secretary. Hence, regardless 

of whether Mr. Wolf already possessed 

authority pursuant to the November 8, 

2019, order of succession effectuated by 

former Acting Secretary McAleenan (as 

the Departments have previously 

concluded), the Gaynor Order provides 

an alternative basis for concluding that 

Mr. Wolf currently serves as the Acting 

Secretary.140

On November 16, 2020, Acting 

Secretary Wolf ratified any and all 

actions involving delegable duties that 

he took between November 13, 2019, 

through November 16, 2020, including 

the NPRM that is the subject of this 

rulemaking. 

Under section 103(a)(1) of the Act, 8 

U.S.C. 1103(a)(1), the Secretary is 

charged with the administration and 

enforcement of the INA and all other 

immigration laws (except for the 

powers, functions, and duties of the 

President, the Attorney General, and 

certain consular, diplomatic, and 

Department of State officials). The 

Secretary is also authorized to delegate 

his or her authority to any officer or 

employee of the agency and to designate 

other officers of the Department to serve 

as Acting Secretary. INA 103, 8 U.S.C. 

1103, and 6 U.S.C. 113(g)(2). The 

Homeland Security Act further provides 

that every officer of the Department 

‘‘shall perform the functions specified 

by law for the official’s office or 

prescribed by the Secretary.’’ 6 U.S.C. 

113(f). Thus, the designation of the 

signature authority from Acting 

Secretary Wolf to Mr. Mizelle is validly 

within the Acting Secretary’s authority. 

VII. Provisions of the Final Rule 

The Departments have considered and 

responded to the comments received in 

response to the proposed rule. The 

Departments are now issuing this final 

rule to finalize the NPRM. 

This final rule makes the following 

changes to the regulatory provisions in 

the proposed rule, some of which were 

noted by commenters, and to certain 

regulatory provisions not addressed in 

the proposed rule as necessitated by the 

intervening promulgation of the Global 

Asylum Final Rule. 

1. 208.13 

As discussed earlier, the final rule 

clarifies that the bar it establishes to 

asylum eligibility (implementing the 

Departments’ understanding of the 

INA’s danger to the security of the 

United States bars) is ‘‘categorical’’ in 

the following manner. 

First, if a communicable disease has 

triggered an ongoing declaration of a 

public health emergency under Federal 

law, such as under section 319 of the 

Public Health Service Act, 42 U.S.C. 

247d, or section 564 of the Food, Drug, 

and Cosmetic Act, 21 U.S.C. 360bbb–3, 

then an alien is ineligible for asylum on 

the basis of there being reasonable 

grounds for regarding the alien as a 

danger to the security of the United 

States if the alien 

(A) exhibits symptoms indicating that 

he or she is afflicted with the disease, 


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84190 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

141See footnote 1. The Departments also make 

this change elsewhere to the regulatory text in the 

NPRM. 

per guidance issued by the Secretary or 

the Attorney General, as appropriate, or 

(B) has come into contact with the 

disease within the number of days 

equivalent to the longest known 

incubation and contagion period, per 

guidance issued by the Secretary or the 

Attorney General, as appropriate. 

Second, if, regarding a communicable 

disease of public health significance as 

defined at 42 CFR 34.2(b), the Secretary 

and the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, have 

jointly 

(A) Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or have embarked at 

a place or places, where such disease is 

prevalent or epidemic (or had come 

from that country or countries (or one or 

more subdivisions or regions thereof), or 

had embarked at that place or places, 

during a period in which the disease 

was prevalent or epidemic there) would 

cause a danger to the public health in 

the United States, and 

(B) Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

[paragraph] (A) who are still within the 

number of days equivalent to the longest 

known incubation and contagion period 

for the disease be regarded as a danger 

to the security of the United States, 

including any relevant exceptions as 

appropriate, 

Then, an alien or class of aliens are 

ineligible for asylum on the basis of 

there being reasonable grounds for 

regarding the alien or class of aliens as 

a danger to the security of the United 

States if the alien or class of aliens are 

described in (A) and are regarded as a 

danger to the security of the United 

States as provided for in (B). 

Finally, the rule uses the more precise 

term ‘‘communicable’’ disease’’ rather 

than ‘‘communicable or infectious’’ 

disease.141

2. 208.16(d)(2) 

Also as discussed earlier, the final 

rule clarifies that the bar it establishes 

to eligibility for withholding of removal 

is ‘‘categorical’’ in the following 

manner. 

First, if a communicable disease has 

triggered an ongoing declaration of a 

public health emergency under Federal 

law, such as under section 319 of the 

Public Health Service Act, 42 U.S.C. 

247d, or section 564 of the Food, Drug, 

and Cosmetic Act, 21 U.S.C. 360bbb–3, 

then an alien is ineligible for 

withholding of removal on the basis of 

there being reasonable grounds for 

regarding the alien as a danger to the 

security of the United States if the alien 

(A) exhibits symptoms indicating that 

he or she is afflicted with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate, or 

(B) has come into contact with the 

disease within the number of days 

equivalent to the longest known 

incubation and contagion period, per 

guidance issued by the Secretary or the 

Attorney General, as appropriate. 

Second, if, regarding a communicable 

disease of public health significance as 

defined at 42 CFR 34.2(b), the Secretary 

and the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, have 

jointly 

(A) Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or have embarked at 

a place or places, where such disease is 

prevalent or epidemic (or had come 

from that country or countries (or one or 

more subdivisions or regions thereof), or 

had embarked at that place or places, 

during a period in which the disease 

was prevalent or epidemic there) would 

cause a danger to the public health in 

the United States, and 

(B) Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

[paragraph] (A) who are still within the 

number of days equivalent to the longest 

known incubation and contagion period 

for the disease be regarded as a danger 

to the security of the United States, 

including any relevant exceptions as 

appropriate, 

Then, an alien or class of aliens are 

ineligible for withholding of removal on 

the basis of there being reasonable 

grounds for regarding the alien or class 

of aliens as a danger to the security of 

the United States if the alien or class of 

aliens are described in (A) and are 

regarded as a danger to the security of 

the United States as provided for in (B). 

3. 208.16(f) 

As discussed, the Departments 

include language clarifying that aliens 

must be notified of the identity of a 

prospective third country of removal. 

4. 208.30(e)(1) 

As the Departments explained earlier, 

we acknowledge the ambiguity that may 

have been created from the proposed 

amendment to section 208.30(e)(1). The 

proposed language was simply designed 

to clarify that when an asylum officer 

creates a written record of his or her 

determination following a credible fear 

interview, it should, as applicable, 

include a written record of their 

determination as to whether the alien 

has demonstrated that it is more likely 

than not that he or she would be 

tortured in the country of removal. The 

Departments have revised the language 

of the proposed amendment to section 

208.30(e)(1) (now found at 208.30(e)(4) 

following the promulgation of the 

Global Asylum Final Rule) to make it 

clearer that the written record of 

determination should include, as 

applicable, whether the alien has 

established that it is more likely than 

not that he or she would be tortured in 

the prospective country of removal. 

5. 208.30(e)(5)(i) 

First, the final rule places the contents 

of 208.30(e)(5)(i)(B) into 208.30(e)(5)(iv) 

to reflect the fact that pursuant to the 

Global Asylum Final Rule, all the 

mandatory bars to eligibility for asylum 

and withholding of removal apply at the 

credible fear stage. 

Second, under the NPRM, the 

introductory text to 208.30(e)(5)(i)(B) 

discussed the situation where an alien 

would be able to establish a credible 

fear of persecution but for the fact that 

he or she was subject to the mandatory 

bars to eligibility for asylum under 

section 208(b)(2)(A)(iv) of the Act and to 

withholding of removal under section 

241(b)(3)(B)(iv) of the Act, but 

nevertheless establishes that it is more 

likely than not that he or she would be 

tortured in the prospective country of 

removal. However, 208.30(e)(5)(i)(B)(3) 

discussed the opposite situation, where 

an alien fails to establish that it is more 

likely than not that he or she would be 

tortured in the prospective country of 

removal. Section 208.30(e)(5)(iv)(A) as 

restructured in the final rule eliminates 

this awkward construction. 

Third, as the Department explained 

earlier, the final rule strikes the phrase 

‘‘affirmatively establish’’, and replaces it 

with ‘‘establish’’, in the context of 

describing what an alien needs to do to 

demonstrate that he or she is more 

likely than not to be tortured in a 

prospective country of removal during a 

screening for potential eligibility for 

deferral of removal. The adverb 


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‘‘affirmatively’’ was included in the 

NPRM to make clear that an alien has 

the burden of proof to establish that he 

or she would be more likely than not to 

be tortured in a prospective third 

country of removal. As ‘‘affirmatively’’ 

may cause confusion and is not 

necessary to clarify the burden of proof, 

which clearly rests with the alien, the 

final rule deletes the word 

‘‘affirmatively’’ from the regulatory text 

in the final rule. 

Fourth, the Departments agree that an 

alien should be informed of the identity 

of a prospective third country of 

removal, provided with an opportunity 

to raise a fear of torture if removed to 

that country, and to have that fear 

assessed to determine whether he or she 

has established that they are more likely 

than not to be tortured in that third 

country of removal. That was always the 

Departments’ intent, and the 

Departments accordingly include 

language in the final rule making it 

clear. 

6. 208.30(e)(5)(iii) 

As mentioned earlier, the 

Departments recently promulgated the 

Third-Country Transit Final Rule and 

the Global Asylum Final Rule. As these 

rules supersede the Third-Country 

Transit IFR, the final rule modifies the 

NPRM’s proposed changes to the ThirdCountry Transit IFR’s regulatory text to 

reflect the now-operative text. Also, the 

final rule deletes the adverb 

‘‘affirmatively’’ as in 208.30(e)(5)(iv). 

As an alien typically does not 

formally request withholding of removal 

in the context of expedited removal 

proceedings, the rule also clarifies that 

aliens should be advised of the 

possibility of being removed to a third 

country at the time they are determined 

to be subject to the mandatory bar to 

eligibility for withholding of removal 

under section 241(b)(3)(B)(iv) of the Act 

and under the regulations issued 

pursuant to the legislation 

implementing the Convention Against 

Torture, and clarifies that such aliens 

should be given the opportunity to 

proceed to removal pursuant to section 

241(b) of the Act. 

Finally, the language in the NPRM 

relied on the definition of a ‘‘reasonable 

fear of persecution’’ found at 8 CFR 

208.31(c), which did not require an 

alien to demonstrate, in order to 

establish a reasonable fear, that he or 

she was not subject to the bars to 

eligibility for withholding of removal 

contained in section 241(b)(3)(B) of the 

INA, 8 U.S.C. 1231(b)(3)(B). However, 

the final rule relies on the definition of 

a ‘‘reasonable possibility of 

persecution’’, as added by the Global 

Asylum Final Rule. An alien is required 

to demonstrate, in order to establish a 

reasonable possibility of persecution, 

that he or she is not subject to these bars 

to eligibility for withholding of removal. 

8 CFR 208.30(e)(2). The final rule makes 

conforming changes reflecting this fact. 

7. 208.30(e)(5)(iv) 

As mentioned, the final rule places 

the contents of 208.30(e)(5)(i)(B) into 

208.30(e)(5)(iv) to reflect the fact that 

pursuant to the Global Asylum Final 

Rule, all the mandatory bars to 

eligibility for asylum and withholding 

of removal apply at the credible fear 

stage. 

As mentioned above, as an alien 

typically does not formally request 

withholding of removal in the context of 

expedited removal proceedings, the rule 

clarifies that aliens should be advised of 

the possibility of being removed to a 

third country at the time they are 

determined to be subject to the 

mandatory bar to eligibility for 

withholding of removal under section 

241(b)(3)(B)(iv) of the Act and under the 

regulations issued pursuant to the 

legislation implementing the 

Convention Against Torture, and 

clarifies that such aliens should be 

given the opportunity to proceed to 

removal pursuant to section 241(b) of 

the Act. 

Finally, as the Departments noted 

earlier, the utilization of the ‘‘more 

likely than not’’ standard in deferral 

screenings only applies to aliens 

determined to be ineligible for asylum 

and withholding of removal pursuant to 

the danger to the security of the United 

States eligibility bars, or ineligible for 

asylum pursuant to the Third-Country 

Transit Final Rule. Aliens determined 

by asylum officers to be ineligible for 

asylum or withholding pursuant to the 

other mandatory bars will continue to 

be screened for deferral of removal 

under the reasonable possibility of 

torture standard, as provided by the 

Global Asylum Final Rule. Thus, for 

aliens determined to be ineligible for 

asylum and withholding of removal 

pursuant to the danger to the security of 

the United States eligibility bars, or 

ineligible for asylum pursuant to the 

Third-Country Transit Final Rule, 

immigration judges will review the 

asylum officers’ determinations on a de 

novo basis as to whether aliens have 

established they are more likely than 

not to be tortured, just as in reviewing 

credible fear of persecution and 

reasonable possibility of persecution 

and torture determinations. 

8. 208.30(f) 

The final rule makes a clarifying 

change to reflect the new ‘‘more likely 

than not’’ screening standard for 

potential eligibility for deferral of 

removal. 

As the Departments noted earlier, the 

restoration of DHS’s discretionary 

ability to remove certain aliens to third 

countries only applies to aliens 

determined to be ineligible for asylum 

and withholding of removal pursuant to 

the danger to the security of the United 

States eligibility bars, or ineligible for 

asylum pursuant to the Third-Country 

Transit Final Rule. Aliens determined 

by asylum officers to be ineligible for 

asylum or withholding pursuant to the 

other mandatory bars will continue to 

be screened for deferral of removal 

under the reasonable possibility of 

torture standard, as provided by the 

Global Asylum Final Rule, and placed 

in immigration court for asylum-andwithholding-only removal proceedings 

should they establish such a reasonable 

possibility. Aliens will not be removed 

to a third country without having first 

been provided an opportunity to 

demonstrate that they are more likely 

than not to be tortured in that country. 

9. 208.30(g) 

The final rule makes a clarifying 

change to reflect the new ‘‘more likely 

than not’’ screening standard for 

potential eligibility for deferral of 

removal. 

10. 235.6 

The final rule makes a clarifying 

change to reflect the new screening 

standard for potential eligibility for 

deferral of removal. 

11. 1003.42 

The final rule makes a clarifying 

change to reflect the new screening 

standard for potential eligibility for 

deferral of removal. 

12. 1208.13 

The final rule makes changes 

analogous to those made to 208.13. 

13. 1208.16 

The final rule makes changes 

analogous to those made to 208.16. 

14. 1208.16(f) 

The final rule makes changes 

analogous to those made to 208.16(f). As 

the Departments noted earlier, the 

restoration of DHS’s discretionary 

ability to remove certain aliens to third 

countries only applies to aliens 

determined to be ineligible for asylum 

and withholding of removal pursuant to 

the danger to the security of the United 


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States eligibility bars (or ineligible for 

asylum pursuant to the Third-Country 

Transit Final Rule). Aliens determined 

by asylum officers to be ineligible for 

asylum or withholding pursuant to the 

other mandatory bars will continue to 

be screened for deferral of removal 

under the reasonable possibility of 

torture standard, as provided by the 

Global Asylum Final Rule, and placed 

in immigration court for asylum-andwithholding-only removal proceedings 

should they establish such a reasonable 

possibility. Aliens will not be removed 

to a third country without having first 

been provided an opportunity to 

demonstrate that they are more likely 

than not to be tortured in that country. 

15. 1208.30(g) 

The final rule makes clarifying 

changes to reflect the new screening 

standard for potential eligibility for 

deferral of removal and the ability of 

DHS to exercise its prosecutorial 

discretion to remove certain aliens to 

third countries. 

As the Departments noted earlier, the 

utilization of the ‘‘more likely than not’’ 

standard in deferral screenings only 

applies to aliens determined to be 

ineligible for asylum and withholding of 

removal pursuant to the danger to the 

security of the United States eligibility 

bars (or ineligible for asylum pursuant 

to the Third-Country Transit Final 

Rule). Aliens determined by asylum 

officers to be ineligible for asylum or 

withholding of removal pursuant to the 

other mandatory bars will continue to 

be screened for deferral of removal 

under the reasonable possibility of 

torture standard, as provided by the 

Global Asylum Final Rule. 

16. 1235.6 

The final rule makes a clarifying 

change to reflect the new screening 

standard for potential eligibility for 

deferral of removal. 

VIII. Regulatory Requirements 

A. Regulatory Flexibility Act 

The Departments have reviewed this 

rule in accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq., and 

have determined that this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

The rule does not regulate ‘‘small 

entities’’ as that term is defined in 5 

U.S.C. 601(6). Only individuals, rather 

than entities, are eligible to apply for 

asylum and related forms of relief, and 

only individuals are placed in 

immigration proceedings. 

B. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

C. Congressional Review Act 

This rule is not a major rule as 

defined by section 804 of the 

Congressional Review Act. 5 U.S.C. 804. 

This rule will not result in an annual 

effect on the economy of $100 million 

or more; a major increase in costs or 

prices; or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

D. Executive Order 12866, Executive 

Order 13563, and Executive Order 

13771 

This rule amends existing regulations 

to clarify that the statutory ‘‘danger to 

the security of the United States’’ bars 

to eligibility for asylum and 

withholding of removal under INA 

sections 208 and 241 and 8 CFR 208.13 

and 1208.13 and 8 CFR 208.16 and 

1208.16, apply in certain contexts 

involving public health crises caused by 

communicable diseases so that aliens 

can be expeditiously removed, as 

appropriate. 

The rule further allows DHS to 

exercise its prosecutorial discretion 

regarding how to process individuals 

subject to expedited removal who are 

determined to be ineligible for asylum 

and withholding of removal in the 

United States on certain grounds, 

including being reasonably regarded as 

a danger to the security of the United 

States, but who nevertheless establish 

that it is more likely than not that they 

will be tortured in the prospective 

country of removal. It provides DHS 

with the option to either place such 

aliens into asylum and withholding 

only proceedings, or remove them to 

countries with respect to which the 

aliens have not established that it is 

more likely than not that they would be 

tortured. Finally, the rule modifies the 

process for evaluating the eligibility for 

deferral of removal of aliens who are 

ineligible for withholding of removal 

because they are reasonably regarded as 

or believed to be a danger to the security 

of the United States. 

In some cases, asylum officers and 

immigration judges will need to spend 

additional time during the credible fear 

process to determine whether an alien is 

ineligible for asylum or withholding of 

removal based on being reasonably 

regarded as a danger to the security of 

the United States and whether an alien 

is more likely than not to be tortured in 

a prospective country of removal. 

However, the overall impact on the time 

spent making (and, in the case of 

immigration judges, reviewing) 

screening determinations will be 

minimal. Additionally, the Departments 

do not expect the changes to increase 

the adjudication time for immigration 

court proceedings. The Departments 

note that the changes may result in 

fewer positive credible fear 

determinations and fewer asylum and 

withholding and deferral of removal 

grants during periods of public health 

crises, but will have no effect at times 

public health conditions do not trigger 

a security bar designation under this 

rule. 

Because cases are inherently factspecific, and because there may be 

multiple bases for denying relief or 

protection, neither DOJ nor DHS can 

quantify precisely the expected decrease 

in positive credible fear determinations 

and grants of relief and protection. The 

full extent of the impacts on this 

population is unclear and will depend 

on the specific circumstances and 

personal characteristics of each alien, 

and neither DOJ nor DHS collects such 

data at such a level of granularity. 

Finally, the changes may also result in 

fewer aliens being placed in asylumand-withholding-only proceedings to 

the extent that DHS exercises its 

discretion to remove aliens to third 

countries. However, as these will be 

discretionary decisions, it is not 

possible to quantify the reduction. 

This rule is a significant regulatory 

action under Executive Order 12866, 

though not an economically significant 

regulatory action. Accordingly, the 

Office of Management and Budget has 

reviewed this regulation. 

E. Executive Order 13132 (Federalism) 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, the Departments believe 

that this rule will not have sufficient 

federalism implications to warrant the 


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preparation of a federalism summary 

impact statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards set forth in section 3(a) and 

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

G. Paperwork Reduction Act 

This rule does not create new, or 

revisions to existing, ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320. 

H. Signature for DHS 

The Acting Secretary of Homeland 

Security, Chad F. Wolf, having reviewed 

and approved this document, is 

delegating the authority to electronically 

sign this document to Chad R. Mizelle, 

who is the Senior Official Performing 

the Duties of the General Counsel for 

DHS, for purposes of publication in the 

Federal Register. 

List of Subjects 

8 CFR Part 208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 235 

Inspection of Persons Applying for 

Admission. 

8 CFR Part 1003 

Executive Office for Immigration 

Review. 

8 CFR Part 1208 

Administrative practice and 

procedure, Aliens, Immigration, 

Reporting and recordkeeping 

requirements. 

8 CFR Part 1235 

Inspection of Persons Applying for 

Admission. 

Regulatory Amendments 

Department of Homeland Security 

Accordingly, for the reasons set forth 

in the preamble, the Acting Secretary of 

Homeland Security amends 8 CFR parts 

208 and 235 as follows: 

PART 208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 1. The authority citation for part 208 

continues to read as follows: 

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

1226, 1252, 1282; Title VII of Public Law 

110–229; 8 CFR part 2; Pub. L. 115–218. 

■ 2. Amend § 208.13 by adding 

paragraph (c)(10) to read as follows: 

§ 208.13 Establishing asylum eligibility. 

* * * * * 

(c) * * * 

(10) Aliens who pose a danger to the 

security of the United States—(i) Public 

health emergencies. If a communicable 

disease has triggered an ongoing 

declaration of a public health 

emergency under Federal law, such as 

under section 319 of the Public Health 

Service Act, 42 U.S.C. 247d, or section 

564 of the Food, Drug, and Cosmetic 

Act, 21 U.S.C. 360bbb–3, then an alien 

is ineligible for asylum under section 

208 of the Act on the basis of there 

being reasonable grounds for regarding 

the alien as a danger to the security of 

the United States under section 

208(b)(2)(A)(iv) of the Act if the alien: 

(A) Exhibits symptoms indicating that 

he or she is afflicted with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate, or 

(B) Has come into contact with the 

disease within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease, per guidance issued by the 

Secretary or the Attorney General, as 

appropriate. 

(ii) Danger to the public health caused 

by an epidemic outside of the United 

States. If, regarding a communicable 

disease of public health significance as 

defined at 42 CFR 34.2(b), the Secretary 

and the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, have 

jointly— 

(A) Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or have embarked at 

a place or places, where such disease is 

prevalent or epidemic (or had come 

from that country or countries (or one or 

more subdivisions or regions thereof), or 

had embarked at that place or places, 

during a period in which the disease 

was prevalent or epidemic there) would 

cause a danger to the public health in 

the United States; and 

(B) Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

paragraph (c)(10)(ii)(A) of this section 

who are still within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease be regarded as a danger to the 

security of the United States under 

section 208(b)(2)(A)(iv) of the Act, 

including any relevant exceptions as 

appropriate, then— 

(C) An alien or class of aliens are 

ineligible for asylum under section 208 

of the Act on the basis of there being 

reasonable grounds for regarding the 

alien or class of aliens as a danger to the 

security of the United States under 

section 208(b)(2)(A)(iv) of the Act if the 

alien or class of aliens are described in 

(c)(10)(ii)(A) of this section and are 

regarded as a danger to the security of 

the United States as provided for in 

paragraph (c)(10)(ii)(B) of this section. 

(iii) The grounds for mandatory denial 

described in paragraphs (c)(10)(i) and 

(ii) of this section shall not apply to an 

alien who is applying for asylum or 

withholding of removal in the United 

States upon return from Canada to the 

United States and pursuant to the 

Agreement Between the Government of 

the United States and the Government 

of Canada for Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries. 

■ 3. Amend § 208.16 by revising 

paragraphs (d)(2) and (f) to read as 

follows: 

§ 208.16 Withholding of removal under 

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

withholding of removal under the 

Convention Against Torture. 

* * * * * 

(d) * * * 

(2) Mandatory denials—(i) In general. 

Except as provided in paragraph (d)(3) 

of this section, an application for 

withholding of removal under section 

241(b)(3) of the Act or under the 

regulations issued pursuant to the 

legislation implementing the 

Convention Against Torture shall be 

denied if the applicant falls within 

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

applications for withholding of 

deportation adjudicated in proceedings 

commenced prior to April 1, 1997, 

within section 243(h)(2) of the Act as it 

appeared prior to that date. For 

purposes of section 241(b)(3)(B)(ii) of 

the Act, or section 243(h)(2)(B) of the 

Act as it appeared prior to April 1, 1997, 

an alien who has been convicted of a 

particularly serious crime shall be 

considered to constitute a danger to the 

community. If the evidence indicates 

the applicability of one or more of the 

grounds for denial of withholding 

enumerated in the Act, the applicant 

shall have the burden of proving by a 

preponderance of the evidence that such 

grounds do not apply. 


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(ii) Public health emergencies. If a 

communicable disease has triggered an 

ongoing declaration of a public health 

emergency under Federal law, such as 

under section 319 of the Public Health 

Service Act, 42 U.S.C. 247d, or section 

564 of the Food, Drug, and Cosmetic 

Act, 21 U.S.C. 360bbb–3, then an alien 

is ineligible for withholding of removal 

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

under the regulations issued pursuant to 

the legislation implementing the 

Convention Against Torture on the basis 

of there being reasonable grounds for 

regarding the alien as a danger to the 

security of the United States under 

section 241(b)(3)(B)(iv) of the Act if the 

alien 

(A) Exhibits symptoms indicating that 

he or she is afflicted with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate, or 

(B) Has come into contact with the 

disease within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease, per guidance issued by the 

Secretary or the Attorney General, as 

appropriate. 

(iii) Danger to the Public Health 

Caused by an Epidemic Outside of the 

United States. If, regarding a 

communicable disease of public health 

significance as defined at 42 CFR 

34.2(b), the Secretary and the Attorney 

General, in consultation with the 

Secretary of Health and Human 

Services, have jointly 

(A) Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or have embarked at 

a place or places, where such disease is 

prevalent or epidemic (or had come 

from that country or countries (or one or 

more subdivisions or regions thereof), or 

had embarked at that place or places, 

during a period in which the disease 

was prevalent or epidemic there) would 

cause a danger to the public health in 

the United States, and 

(B) Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

paragraph (d)(2)(ii)(A) of this section 

who are still within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease be regarded as a danger to the 

security of the United States under 

section 241(b)(3)(B)(iv) of the Act, 

including any relevant exceptions as 

appropriate, then— 

(C) An alien or class of aliens are 

ineligible for withholding of removal 

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

under the regulations issued pursuant to 

the legislation implementing the 

Convention Against Torture on the basis 

of there being reasonable grounds for 

regarding the alien or class of aliens as 

a danger to the security of the United 

States under section 241(b)(3)(B)(iv) of 

the Act if the alien or class of aliens are 

described in paragraph (d)(2)(ii)(A) of 

this section and are regarded as a danger 

to the security of the United States as 

provided for in paragraph (d)(2)(ii)(B) of 

this section. 

(iv) The grounds for mandatory denial 

described in paragraphs (d)(2)(ii) and 

(iii) of this section shall not apply to an 

alien who is applying for asylum or 

withholding of removal in the United 

States upon return from Canada to the 

United States and pursuant to the 

Agreement Between the Government of 

the United States and the Government 

of Canada for Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries. 

* * * * * 

(f) Removal to third country. (1) 

Nothing in this section or § 208.17 shall 

prevent the Department from removing 

an alien requesting protection to a third 

country other than a country to which 

removal is currently withheld or 

deferred. 

(2) If an alien requests withholding or 

deferral of removal to his or her home 

country or another specific country, 

nothing in this section or § 208.17 

precludes the Department from 

removing the alien to a third country 

prior to a determination or adjudication 

of the alien’s initial request for 

withholding or deferral of removal if, 

after being notified of the identity of the 

prospective third country of removal 

and provided an opportunity to 

demonstrate that he or she is more 

likely than not to be tortured in that 

third country, the alien fails to establish 

that they are more likely than not to be 

tortured there. However, such a removal 

shall be executed only if the alien was: 

(i) Advised at the time of requesting 

withholding or deferral of removal of 

the possibility of being removed to a 

third country prior to a determination or 

adjudication of the same under the 

conditions set forth in this paragraph; 

and 

(ii) Provided, but did not accept, an 

opportunity to withdraw the request for 

withholding or deferral of removal in 

order to prevent such removal and, 

instead, proceed to removal pursuant to 

section 241(b) of the Act, as appropriate. 

■ 4. Amend § 208.30 by revising 

paragraph (e)(4)(e)(5)(i)(A) and (B) and 

(e)(5)(iii), adding paragraph (e)(5)(iv), 

and revising paragraphs (f) introductory 

text, (f)(1), and (g)(1) to read as follows: 

§ 208.30 Credible fear determinations 

involving stowaways and applicants for 

admission who are found inadmissible 

pursuant to section 212(a)(6)(C) or 212(a)(7) 

of the Act, whose entry is limited or 

suspended under section 212(f) or 215(a)(1) 

of the Act, or who failed to apply for 

protection from persecution in a third 

country where potential relief is available 

while en route to the United States. 

* * * * * 

(e) * * * 

(4) In all cases, the asylum officer will 

create a written record of his or her 

determination, including a summary of 

the material facts as stated by the alien, 

any additional facts relied on by the 

officer, and the officer’s determination 

of whether, in light of such facts, the 

alien has established a credible fear of 

persecution, reasonable possibility of 

persecution, reasonable possibility of 

torture or that it is more likely than not 

that he or she would be tortured in the 

prospective country of removal. In 

determining whether the alien has a 

credible fear of persecution, as defined 

in section 235(b)(1)(B)(v) of the Act, a 

reasonable possibility of persecution or 

torture, or that it is more likely than not 

that he or she would be tortured in the 

prospective country of removal, the 

asylum officer shall consider whether 

the alien’s case presents novel or unique 

issues that merit consideration in a full 

hearing before an immigration judge. 

(5)(i)(A) Except as provided in 

paragraphs (e)(5)(ii) through (iv) or 

paragraph (e)(6) or (7) of this section, if 

an alien would be able to establish a 

credible fear of persecution but for the 

fact that the alien is subject to one or 

more of the mandatory bars to applying 

for asylum or being eligible for asylum 

contained in section 208(a)(2)(B)–(D) 

and (b)(2) of the Act, including any bars 

established by regulation under section 

208(b)(2)(C) of the Act, then the asylum 

officer will enter a negative credible fear 

of persecution determination with 

respect to the alien’s eligibility for 

asylum. 

(B) If an alien described in paragraph 

(e)(5)(i)(A) of this section is able to 

establish either a reasonable possibility 

of persecution (including by 

establishing that he or she is not subject 

to one or more of the mandatory bars to 

eligibility for withholding of removal 

contained in section 241(b)(3)(B) of the 

Act) or a reasonable possibility of 

torture, then the asylum officer will 

enter a positive reasonable possibility of 

persecution or torture determination, as 


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applicable. The Department of 

Homeland Security shall place the alien 

in asylum-and-withholding-only 

proceedings under 8 CFR 1208.2(c)(1) 

for full consideration of the alien’s 

claim for withholding of removal under 

section 241(b)(3) of the Act or 

withholding or deferral of removal 

under the regulations issued pursuant to 

the implementing legislation for the 

Convention Against Torture. 

* * * * * 

(iii) If the alien is found to be an alien 

described as ineligible for asylum in 

§ 208.13(c)(4), then the asylum officer 

shall enter a negative credible fear 

determination with respect to the alien’s 

application for asylum. If the alien— 

(A) Establishes, respectively, a 

reasonable possibility of persecution 

(including by establishing that he or she 

is not subject to one or more of the 

mandatory bars to eligibility for 

withholding of removal contained in 

section 241(b)(3)(B) of the Act) or 

torture; or 

(B) Would be able to establish a 

reasonable possibility of persecution but 

for the fact that he or she is subject to 

the mandatory bar to eligibility for 

withholding of removal under section 

241(b)(3)(B)(iv) of the Act, but 

nevertheless establishes that it is more 

likely than not that he or she would be 

tortured in the prospective country of 

removal, the Department of Homeland 

Security may, in the unreviewable 

discretion of the Secretary, either place 

the alien in asylum-and-withholdingonly proceedings under 8 CFR 

208.2(c)(1) for full consideration of the 

alien’s claim for asylum under section 

208 of the Act, withholding of removal 

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

withholding or deferral of removal 

under the regulations issued pursuant to 

the implementing legislation for the 

Convention Against Torture, or remove 

the alien to a third country. 

(1) If the Department places the alien 

in asylum-and-withholding-only 

proceedings under 8 CFR 208.2(c)(1), 

then the immigration judge shall review 

all issues de novo, including whether 

the alien has established that it is more 

likely than not that he or she would be 

tortured in the prospective country of 

removal. 

(2) If the Department decides to 

remove the alien to a third country, it 

shall do so in a manner consistent with 

section 241 of the Act and § 241.15, 

including by not removing the alien to 

a third country in which, after being 

notified of the identity of the 

prospective third country of removal the 

alien has established during an 

interview with an asylum officer that he 

or she is more likely than not to be 

tortured in that country. Further, such a 

removal to a third country shall be 

executed only if the alien was: 

(i) Advised at the time of being 

determined to be subject to the 

mandatory bar to eligibility for 

withholding of removal under section 

241(b)(3)(B)(iv) of the Act and under the 

regulations issued pursuant to the 

legislation implementing the 

Convention Against Torture of the 

possibility of being removed to a third 

country prior to a determination or 

adjudication of the same under the 

conditions set forth in this paragraph, 

and 

(ii) Provided, but did not accept, an 

opportunity to proceed to removal 

pursuant to section 241(b) of the Act, as 

appropriate. 

(C) If an alien fails to establish a 

reasonable possibility of persecution or 

torture and is unable, during an 

interview with the asylum officer, to 

establish that it is more likely than not 

that he or she would be tortured in the 

prospective country of removal, then the 

asylum officer will provide the alien 

with a written notice of decision that 

will be subject to immigration judge 

review consistent with paragraph (g) of 

this section, 

(iv)(A) Except as provided in 

paragraphs (e)(5)(ii) and (iii) or 

paragraph (e)(6) or (7) of this section, if 

an alien would be able to establish a 

credible fear of persecution or a 

reasonable possibility of persecution but 

for the fact that the alien is subject to 

the mandatory bars to being eligible for 

asylum contained in section 

208(b)(2)(A)(iv) of the Act and to 

withholding of removal contained in 

section 241(b)(3)(B)(iv) of the Act: 

(1) If the alien fails to establish, 

during an interview with the asylum 

officer, that it is more likely than not 

that he or she would be tortured in the 

prospective country of removal, then the 

asylum officer will provide the alien 

with a written notice of decision that 

will be subject to immigration judge 

review consistent with paragraph (g) of 

this section; 

(2) If the alien establishes that it is 

more likely than not that he or she 

would be tortured in the prospective 

country of removal, the Department of 

Homeland Security may, in the 

unreviewable discretion of the 

Secretary, either place the alien in 

asylum-and-withholding-only 

proceedings under 8 CFR 208.2(c)(1) for 

full consideration of the alien’s claim 

for asylum under section 208 of the Act, 

withholding of removal under section 

241(b)(3) of the Act or withholding or 

deferral of removal under the 

regulations issued pursuant to the 

implementing legislation for the 

Convention Against Torture, or remove 

the alien to a third country. 

(i) If the Department places the alien 

in asylum-and-withholding-only 

proceedings under 8 CFR 208.2(c)(1), 

then the IJ shall review all issues de 

novo, including whether the alien has 

established that it is more likely than 

not that he or she would be tortured in 

the prospective country of removal. 

(ii) If the Department decides to 

remove the alien to a third country, it 

shall do so in a manner consistent with 

section 241 of the Act and § 241.15, 

including by not removing the alien to 

a third country in which, after being 

notified of the identity of the proposed 

third country of removal, the alien has 

established that he or she would be 

more likely than not to be tortured. 

Further, such a removal shall be 

executed only if the alien was advised 

at the time of being determined to be 

subject to the mandatory bar to 

eligibility for withholding of removal 

under section 241(b)(3)(B)(iv) of the Act 

and under the regulations issued 

pursuant to the legislation 

implementing the Convention Against 

Torture of the possibility of being 

removed to a third country prior to a 

determination or adjudication of the 

same under the conditions set forth in 

this paragraph (e)(5)(iv) and provided 

with, but did not accept, an opportunity 

to proceed to removal pursuant to 

section 241(b) of the Act, as appropriate. 

(f) Procedures for a positive fear 

determination. If, pursuant to paragraph 

(e) of this section, an alien stowaway or 

an alien subject to expedited removal 

establishes either a credible fear of 

persecution, reasonable possibility of 

persecution, a reasonable possibility of 

torture, or that it is more likely than not 

that they would be tortured in the 

prospective country of removal: 

(1) Except as provided in paragraphs 

(e)(5)(iii) through (iv) of this section, 

DHS shall issue a Notice of Referral to 

Immigration Judge for asylum-andwithholding-only proceedings under 8 

CFR 208.2(c)(1). 

* * * * * 

(g) * * * 

(1) If, pursuant to paragraphs (e) and 

(f) of this section, an alien does not 

establish a credible fear of persecution, 

reasonable possibility of persecution, 

reasonable possibility of torture, or that 

he or she is more likely than not to be 

tortured in the prospective country of 

removal, DHS shall provide the alien 

with a written notice of decision and 

inquire whether the alien wishes to 

have an immigration judge review the 


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negative determination, in accordance 

with section 235(b)(1)(B)(iii)(III) of the 

Act and this § 208.30. The alien must 

indicate whether he or she desires such 

review on a Record of Negative Fear 

Finding and Request for Review by 

Immigration Judge. If the alien refuses to 

make an indication, DHS shall consider 

such a response as a decision to decline 

review. 

* * * * * 

PART 235—INSPECTION OF PERSONS 

APPLYING FOR ADMISSION 

■ 5. The authority citation for part 235 

continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 69 FR 

241, 3 CFR, 2004 Comp., p. 278), 1201, 1224, 

1225, 1226, 1228, 1365a note, 1365b, 1379, 

1731–32; Title VII of Public Law 110–229; 8 

U.S.C. 1185 note (section 7209 of Pub. L. 

108–458); Public Law 112–54; Public Law 

115–218. 

■ 6. Amend § 235.6 by revising 

paragraph (a)(2)(i) to read as follows: 

§ 235.6 Referral to immigration judge. 

(a) * * * 

(2) * * * 

(i) If an asylum officer determines that 

the alien has not established a credible 

fear of persecution, reasonable 

possibility of persecution, reasonable 

possibility of torture, or that it is more 

likely than not that the alien would be 

tortured in the prospective country of 

removal, and the alien requests a review 

of that determination by an immigration 

judge; or 

* * * * * 

Department of Justice 

Accordingly, for the reasons set forth 

in the preamble, and by the authority 

vested in the Director, Executive Office 

for Immigration Review, by the Attorney 

General Order Number 4910–2020, the 

Department amends parts 1003, 1208, 

and 1235 of title 8 of the Code of 

Federal Regulations as follows: 

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

■ 7. The authority citation for part 1003 

continues to read as follows: 

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 

U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 

1226, 1229, 1229a, 1229b, 1229c, 1231, 

1254a, 1255, 1324d, 1330, 1361, 1362; 28 

U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 

2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; 

section 203 of Public Law 105–100, 111 Stat. 

2196–200; sections 1506 and 1510 of Public 

Law 106–386, 114 Stat. 1527–29, 1531–32; 

section 1505 of Public Law 106–554, 114 

Stat. 2763A–326 to –328. 

■ 8. Amend § 1003.42 by revising 

paragraph (d)(1) to read as follows: 

§ 1003.42 Review of credible fear 

determination. 

* * * * * 

(d) * * * 

(1) The immigration judge shall make 

a de novo determination as to whether 

there is a significant possibility, taking 

into account the credibility of the 

statements made by the alien in support 

of the alien’s claim, whether the alien is 

subject to any mandatory bars to 

applying for asylum or being eligible for 

asylum under section 208(a)(2)(B)–(D) 

and (b)(2) of the Act, including any bars 

established by regulation under section 

208(b)(2)(C) of the Act, and such other 

facts as are known to the immigration 

judge, that the alien could establish his 

or her ability to apply for or be granted 

asylum under section 208 of the Act. 

The immigration judge shall make a de 

novo determination as to whether there 

is a reasonable possibility, taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim, whether the alien is 

subject to any mandatory bars to 

eligibility for withholding of removal 

under section 241(b)(3)(B) of the Act, 

and such other facts as are known to the 

immigration judge, that the alien would 

be persecuted on account of his or her 

race, religion, nationality, membership 

in a particular social group, or political 

opinion in the country of removal, 

consistent with the criteria in 8 CFR 

1208.16(b). The immigration judge shall 

also make de novo determinations as to 

whether there is a reasonable possibility 

that the alien would be tortured in the 

country of removal and whether it is 

more likely than not that the alien 

would be tortured in the country of 

removal, in both instances taking into 

account the credibility of the statements 

made by the alien in support of the 

alien’s claim and such other facts as are 

known to the immigration judge, 

consistent with the criteria in 8 CFR 

1208.16(c), 8 CFR 1208.17, and 8 CFR 

1208.18. 

* * * * * 

PART 1208—PROCEDURES FOR 

ASYLUM AND WITHHOLDING OF 

REMOVAL 

■ 9. The authority citation for part 1208 

continues to read as follows: 

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

1226, 1252, 1282; Title VII of Public Law 

110–229; Public Law 115–218. 

■ 10. Amend § 1208.13 by adding 

paragraph (c)(10) to read as follows: 

§ 1208.13 Establishing asylum eligibility. 

* * * * * 

(c) * * * 

(10)(i) Public health emergencies. If a 

communicable disease has triggered an 

ongoing declaration of a public health 

emergency under Federal law, such as 

under section 319 of the Public Health 

Service Act, 42 U.S.C. 247d, or section 

564 of the Food, Drug, and Cosmetic 

Act, 21 U.S.C. 360bbb–3, then an alien 

is ineligible for asylum under section 

208 of the Act on the basis of there 

being reasonable grounds for regarding 

the alien as a danger to the security of 

the United States under section 

208(b)(2)(A)(iv) of the Act if the alien— 

(A) Exhibits symptoms indicating that 

he or she is afflicted with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate, or 

(B) Has come into contact with the 

disease within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease, per guidance issued by the 

Secretary or the Attorney General, as 

appropriate. 

(ii) Danger to the public health caused 

by an epidemic outside of the United 

States. If, regarding a communicable 

disease of public health significance as 

defined at 42 CFR 34.2(b), the Secretary 

and the Attorney General, in 

consultation with the Secretary of 

Health and Human Services, have 

jointly— 

(A) Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or have embarked at 

a place or places, where such disease is 

prevalent or epidemic (or had come 

from that country or countries (or one or 

more subdivisions or regions thereof), or 

had embarked at that place or places, 

during a period in which the disease 

was prevalent or epidemic there) would 

cause a danger to the public health in 

the United States, and 

(B) Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

paragraph (c)(1)(ii)(A) of this section 

who are still within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease be regarded as a danger to the 

security of the United States under 

section 208(b)(2)(A)(iv) of the Act, 

including any relevant exceptions as 

appropriate, then— 

(C) An alien or class of aliens are 

ineligible for asylum under section 208 


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of the Act on the basis of there being 

reasonable grounds for regarding the 

alien or class of aliens as a danger to the 

security of the United States under 

section 208(b)(2)(A)(iv) of the Act if the 

alien or class of aliens are described in 

paragraph (c)(10)(ii)(A) of this section 

and are regarded as a danger to the 

security of the United States as provided 

for in paragraph (c)(10)(ii)(B) of this 

section. 

(iii) The grounds for mandatory denial 

described in paragraphs (c)(10)(i) and 

(ii) of this section shall not apply to an 

alien who is applying for asylum or 

withholding of removal in the United 

States upon return from Canada to the 

United States and pursuant to the 

Agreement Between the Government of 

the United States and the Government 

of Canada for Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries. 

■ 11. Amend § 1208.16 by revising 

paragraphs (d)(2) and (f) to read as 

follows: 

§ 1208.16 Withholding of removal under 

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

withholding of removal under the 

Convention Against Torture. 

* * * * * 

(d) * * * 

(2) Mandatory denials—(i) In general. 

Except as provided in paragraph (d)(3) 

of this section, an application for 

withholding of removal under section 

241(b)(3) of the Act or under the 

regulations issued pursuant to the 

legislation implementing the 

Convention Against Torture shall be 

denied if the applicant falls within 

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

applications for withholding of 

deportation adjudicated in proceedings 

commenced prior to April 1, 1997, 

within section 243(h)(2) of the Act as it 

appeared prior to that date. For 

purposes of section 241(b)(3)(B)(ii) of 

the Act, or section 243(h)(2)(B) of the 

Act as it appeared prior to April 1, 1997, 

an alien who has been convicted of a 

particularly serious crime shall be 

considered to constitute a danger to the 

community. If the evidence indicates 

the applicability of one or more of the 

grounds for denial of withholding 

enumerated in the Act, the applicant 

shall have the burden of proving by a 

preponderance of the evidence that such 

grounds do not apply. 

(ii) Public health emergencies. If a 

communicable disease has triggered an 

ongoing declaration of a public health 

emergency under Federal law, such as 

under section 319 of the Public Health 

Service Act, 42 U.S.C. 247d, or section 

564 of the Food, Drug, and Cosmetic 

Act, 21 U.S.C. 360bbb–3, then an alien 

is ineligible for withholding of removal 

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

under the regulations issued pursuant to 

the legislation implementing the 

Convention Against Torture on the basis 

of there being reasonable grounds for 

regarding the alien as a danger to the 

security of the United States under 

section 241(b)(3)(B)(iv) of the Act if the 

alien— 

(A) Exhibits symptoms indicating that 

he or she is afflicted with the disease, 

per guidance issued by the Secretary or 

the Attorney General, as appropriate; or 

(B) Has come into contact with the 

disease within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease, per guidance issued by the 

Secretary or the Attorney General, as 

appropriate. 

(iii) Danger to the public health 

caused by an epidemic outside of the 

United States. If, regarding a 

communicable disease of public health 

significance as defined at 42 CFR 

34.2(b), the Secretary and the Attorney 

General, in consultation with the 

Secretary of Health and Human 

Services, have jointly— 

(A) Determined that the physical 

presence in the United States of aliens 

who are coming from a country or 

countries (or one or more subdivisions 

or regions thereof), or have embarked at 

a place or places, where such disease is 

prevalent or epidemic (or had come 

from that country or countries (or one or 

more subdivisions or regions thereof), or 

had embarked at that place or places, 

during a period in which the disease 

was prevalent or epidemic there) would 

cause a danger to the public health in 

the United States; and 

(B) Designated the foreign country or 

countries (or one or more subdivisions 

or regions thereof), or place or places, 

and the period of time or circumstances 

under which they jointly deem it 

necessary for the public health that 

aliens or classes of aliens described in 

paragraph (d)(2)(iii)(A) of this section 

who are still within the number of days 

equivalent to the longest known 

incubation and contagion period for the 

disease be regarded as a danger to the 

security of the United States under 

section 241(b)(3)(B)(iv) of the Act, 

including any relevant exceptions as 

appropriate, then— 

(C) An alien or class of aliens are 

ineligible for withholding of removal 

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

under the regulations issued pursuant to 

the legislation implementing the 

Convention Against Torture on the basis 

of there being reasonable grounds for 

regarding the alien or class of aliens as 

a danger to the security of the United 

States under section 241(b)(3)(B)(iv) of 

the Act if the alien or class of aliens are 

described in paragraph (d)(2)(iii)(A) of 

this section and are regarded as a danger 

to the security of the United States as 

provided for in paragraph (d)(2)(iii)(B) 

of this section. 

(iv) The grounds for mandatory denial 

described in paragraphs (d)(2)(ii) and 

(iii) of this section shall not apply to an 

alien who is applying for asylum or 

withholding of removal in the United 

States upon return from Canada to the 

United States and pursuant to the 

Agreement Between the Government of 

the United States and the Government 

of Canada for Cooperation in the 

Examination of Refugee Status Claims 

from Nationals of Third Countries) 

* * * * * 

(f) Removal to third country. (1) 

Nothing in this section or § 1208.17 

shall prevent the Department of 

Homeland Security from removing an 

alien requesting protection to a third 

country other than a country to which 

removal is currently withheld or 

deferred. 

(2) If an alien requests withholding or 

deferral of removal to the applicable 

home country or another specific 

country, nothing in this section or 

§ 1208.17 precludes the Department of 

Homeland Security from removing the 

alien to a third country prior to a 

determination or adjudication of the 

alien’s initial request for withholding or 

deferral of removal if, after being 

notified of the identity of the 

prospective third country of removal 

and provided an opportunity to 

demonstrate that he or she is more 

likely than not to be tortured in that 

third country, the alien fails to establish 

that they are more likely than not to be 

tortured there. However, such a removal 

shall be executed only if the alien was: 

(i) Advised at the time of requesting 

withholding or deferral of removal of 

the possibility of being removed to a 

third country prior to a determination or 

adjudication of the same under the 

conditions set forth in this paragraph, 

and 

(ii) Provided, but did not accept, an 

opportunity to withdraw the request for 

withholding or deferral of removal in 

order to prevent such removal and, 

instead, proceed to removal pursuant to 

section 241(b) of the Act, as appropriate. 

■ 12. Amend § 1208.30 by revising 

paragraphs (e), (g)(1)(ii), (g)(2)(i), and 

(g)(2)(iv)(A) and (B) to read as follows: 


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84198 Federal Register / Vol. 85, No. 247 / Wednesday, December 23, 2020 / Rules and Regulations 

§ 1208.30 Credible fear determinations of 

persecution, reasonable possibility of 

persecution, and reasonable possibility of 

torture determinations involving stowaways 

and applicants for admission who are found 

inadmissible pursuant to section 

212(a)(6)(C) or 212(a)(7) of the Act, whose 

entry is limited or suspended under section 

212(f) or 215(a)(1) of the Act, or who failed 

to apply for protection from persecution in 

a third country where potential relief is 

available while en route to the United 

States. 

* * * * * 

(e) Determination. For the standards 

and procedures for asylum officers in 

conducting credible fear of persecution, 

reasonable possibility of persecution, 

and reasonable possibility of torture 

interviews, and interviews to determine 

whether an alien has established that he 

or she is more likely than not to be 

tortured in the prospective country of 

removal, and in making positive and 

negative fear determinations, see 8 CFR 

208.30. The immigration judges will 

review such determinations as provided 

in paragraph (g) of this section and 8 

CFR 1003.42. 

* * * * * 

(g) * * * 

(1) * * * 

(ii) If the alien is determined to be an 

alien described as ineligible for asylum 

in 8 CFR 208.13(c)(4) or 8 CFR 

1208.13(c)(4) and is determined to lack 

a reasonable possibility of persecution 

or torture under 8 CFR 208.30(e)(5)(iii), 

the immigration judge shall first review 

de novo the determination that the alien 

is described as ineligible for asylum in 

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

1208.13(c)(4). If the immigration judge 

finds that the alien is not described as 

ineligible for asylum in 8 CFR 

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

then, except as provided in 8 CFR 

208.30(e)(iv), the immigration judge 

shall vacate the order of the asylum 

officer, and DHS may commence 

asylum-and-withholding-only 

proceedings under 8 CFR 1208.2(c)(1). If 

the immigration judge concurs with the 

determination that the alien is an alien 

described as ineligible for asylum in 8 

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

the immigration judge will then review 

the asylum officer’s negative decision 

regarding reasonable possibility made 

under 8 CFR 208.30(e)(5) and regarding 

whether the alien has established that it 

is more likely than not that he or she 

would be tortured in the prospective 

country of removal, consistent with 

paragraph (g)(2) of this section, except 

that the immigration judge will review 

the fear of persecution or torture 

findings under the reasonable 

possibility standard, and the 

determination that the alien has not 

established that he or she is more likely 

than not to be tortured in the 

prospective country of removal under 

the more likely than not standard, 

instead of the credible fear of 

persecution standard described in 

paragraph (g)(2). 

(2) * * * 

(i) The asylum officer’s negative 

decision regarding a credible fear of 

persecution, reasonable possibility of 

persecution, reasonable possibility of 

torture, and whether the alien has 

established that he or she is more likely 

than not to be tortured in the 

prospective country of removal shall be 

subject to review by an immigration 

judge upon the applicant’s request, in 

accordance with section 

235(b)(1)(B)(iii)(III) of the Act. If the 

alien refuses to make an indication, 

DHS will consider such a response as a 

decision to decline review. 

* * * * * 

(iv) * * * 

(A) If the immigration judge concurs 

with the determination of the asylum 

officer that the alien has not established 

a credible fear of persecution, 

reasonable possibility of persecution, 

reasonable possibility of torture, or that 

he or she is more likely than not to be 

tortured in the prospective country of 

removal, except as provided in 

§ 208.30(e)(5)(iii) and (iv), the case shall 

be returned to DHS for removal of the 

alien. The immigration judge’s decision 

is final and may not be appealed. 

(B) If the immigration judge finds that 

the alien, other than an alien stowaway, 

establishes a credible fear of 

persecution, reasonable possibility of 

persecution, reasonable possibility of 

torture, or that he or she is more likely 

than not to be tortured in the 

prospective country of removal, the 

immigration judge shall, except as 

provided in § 208.30(e)(5)(iii) and (iv), 

vacate the Notice and Order of 

Expedited Removal and DHS may 

commence asylum-and-withholdingonly proceedings under 8 CFR 

1208.2(c)(1), during which time the 

alien may file an application for asylum 

and for withholding of removal in 

accordance with 8 CFR 1208.4(b)(3)(i). 

Such application shall be considered de 

novo in all respects by an immigration 

judge regardless of any determination 

made under this paragraph. 

* * * * * 

PART 1235—INSPECTION OF 

PERSONS APPLYING FOR ADMISSION 

■ 13. The authority citation for part 

1235 continues to read as fol1ows: 

Authority: 8 U.S.C. 1101 and note, 1103, 

1183, 1185 (pursuant to E.O. 13323, 69 FR 

241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 

1225, 1226, 1228, 1365a note, 1379, 1731–32; 

Title VII of Public Law 110–229; 8 U.S.C. 

1185 note (section 7209 of Pub. L. 108–458); 

Public Law 115–218. 

■ 14. Amend § 1235.6 by revising 

paragraph (a)(2)(i) to read as follows: 

§ 1235.6 Referral to immigration judge. 

(a) * * * 

(2) * * * 

(i) If an asylum officer determines that 

an alien does not have a credible fear of 

persecution, reasonable possibility of 

persecution, reasonable possibility of 

torture, or has not established that he or 

she is more likely than not to be 

tortured in the prospective country of 

removal, and the alien requests a review 

of that determination by an immigration 

judge; or 

* * * * * 

Chad R. Mizelle, 

Senior Official Performing the Duties of the 

General Counsel. 

James R. McHenry III, 

Director, Executive Office for Immigration 

Review, Department of Justice. 

[FR Doc. 2020–28436 Filed 12–22–20; 8:45 am] 

BILLING CODE 9111–97–P; 4410–30–P 


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