[Federal Register Volume 89, Number 194 (Monday, October 7, 2024)]
[Rules and Regulations]
[Pages 81156-81285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22602]



[[Page 81155]]

Vol. 89

Monday,

No. 194

October 7, 2024

Part II





Department of Homeland Security





-----------------------------------------------------------------------





Rural Business-Cooperative Service





Department of Justice





-----------------------------------------------------------------------





Executive Office for Immigration Review





-----------------------------------------------------------------------





8 CFR Parts 208, 225, and 1208





Securing the Border; Final Rule

Federal Register / Vol. 89 , No. 194 / Monday, October 7, 2024 / 
Rules and Regulations

[[Page 81156]]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 208 and 235

[CIS No. 2778-24; Docket No: USCIS-2024-0006]
RIN 1615-AC92

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1208

[A.G. Order No. 6053-2024]
RIN 1125-AB32


Securing the Border

AGENCY: U.S. Citizenship and Immigration Services (``USCIS''), 
Department of Homeland Security (``DHS''); Executive Office for 
Immigration Review (``EOIR''), Department of Justice (``DOJ'').

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: On June 3, 2024, the President signed a Proclamation under 
sections 212(f) and 215(a) of the Immigration and Nationality Act 
(``INA'') suspending and limiting the entry of certain noncitizens into 
the United States during emergency border circumstances. DHS and DOJ 
(``the Departments'') issued a complementary interim final rule 
(``IFR'') shortly thereafter. This final rule responds to public 
comments received on the IFR, makes certain revisions to the regulatory 
text, and seeks comment on potential changes to the Circumvention of 
Lawful Pathways rule as well as changes that parallel modifications 
made by the subsequent Proclamation.

DATES: 
    Effective date: This rule is effective at 12:01 a.m. eastern 
daylight time on October 1, 2024.
    Comment period for solicited comments: Comments on the extended and 
expanded applicability of the Circumvention of Lawful Pathways 
rebuttable presumption in Section IV of this preamble and changes that 
parallel modifications made by the subsequent Proclamation described in 
Section II.C.1 of this preamble must be submitted on or before November 
6, 2024.
    The electronic Federal Docket Management System will accept 
comments prior to midnight eastern time at the end of that day.

ADDRESSES: 
    Docket: To view comments on the IFR that preceded this rule, search 
for docket number USCIS-2024-0006 on the Federal eRulemaking Portal at 
https://www.regulations.gov.
    Comment period for solicited additional comments: You may submit 
comments on the specific issues identified in Sections II.C.1 and IV of 
this preamble via the electronic Federal Docket Management System at 
https://www.regulations.gov, to DHS Docket Number USCIS-2024-0006. 
Follow the website instructions for submitting comments. Comments 
submitted in a manner other than the one listed above, including emails 
or letters sent to the Departments' officials, will not be considered 
comments on the rulemaking and may not receive a response from the 
Departments. Please note that the Departments cannot accept any 
comments that are hand-delivered or couriered. In addition, the 
Departments cannot accept comments contained on any form of digital 
media storage device, such as CDs/DVDs and USB drives. The Departments 
are not accepting mailed comments at this time. If you cannot submit 
your comment by using https://www.regulations.gov, please contact the 
Regulatory Coordination Division, Office of Policy and Strategy, USCIS, 
DHS, by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT: 
    For DHS: Daniel Delgado, Acting Deputy Assistant Secretary for 
Immigration Policy, Office of Strategy, Policy, and Plans, DHS; 
telephone (202) 447-3459 (not a toll-free call).
    For EOIR: Lauren Alder Reid, Assistant Director, Office of Policy, 
EOIR, DOJ, 5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 
305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Executive Summary
    A. Background and Purpose
    1. Basis for the IFR
    2. The Departments' Experience With the IFR
    B. Legal Authority
    C. Changes From the IFR to Final Rule
    1. Changes to the IFR's Thresholds
    2. Clarifying Changes to Regulatory Text
    3. Other Technical Changes
    D. Rule Provisions
    E. Severability
III. Public Comments and Responses
    A. Legal Authority and Background
    1. Legality Concerns
    a. General Comments on Domestic Law
    b. Statutory Conditions and Limitations on Asylum Eligibility
    c. Expedited Removal
    d. General Comments on International Law
    e. UNHCR Guidelines on International Protection
    f. 2000 Protocol To Prevent, Suppress, and Punish Trafficking in 
Persons, Especially Women and Children
    2. Justification and Statements on Need for the Rule
    a. Rule Is Unjustified, Unsubstantiated, or Arbitrary
    b. Lack of Resources Does Not Justify the Rule
    c. Rule Does Not Acknowledge Factors Contributing to Migration
    d. Other Comments Related to the Departments' Justification
    B. General Feedback on the IFR
    1. General Support
    2. General Opposition
    a. Negative Impacts on Noncitizens and Others
    i. Conflicts With Humanitarian Values
    ii. Procedural and Due Process Concerns
    (1) General Concerns
    (2) Access to Counsel, Unrepresented Applicants, and the Ability 
or Time To Prepare
    (3) Noncitizens' Ability to Have Their Claims Heard
    (4) Issues With Asylum Officers, Detention Conditions, and 
Quality of Credible Fear Determinations
    (5) Fairness or Risks Associated With Process
    iii. Impacts on Specific Vulnerable Populations, Discrimination 
Concerns
    iv. Impacts on Criminal Enforcement
    v. Negative Impacts on Other Affected Entities
    b. Negative or Minimal Impacts on Immigration System and 
Government Operations
    i. Undermines the Administration's Promises and Goals
    ii. Similarity to Actions of Past Administration
    iii. Would Be Ineffective or Not Achieve Its Intended Outcomes
    c. Negative Impacts on the U.S. Economy, Workforce, Citizenry, 
Public Health, and Safety
    d. Other General Opposition
    C. Provisions of the Rule
    1. Limitation on Asylum Eligibility
    a. Proclamation Exceptions--Section 3(b) of Proclamation
    i. Legal Concerns Related to CBP One and the Lack of Exceptions
    ii. Wait Times for CBP One Appointments
    iii. Availability of and Access to CBP One Appointments and 
Concerns about Discrimination
    b. Regulatory Exception--Exceptionally Compelling Circumstances
    c. Implementation by CBP Officers
    d. Application of the Limitation on Asylum Eligibility in 
Proceedings Before EOIR
    e. Family Unity Provisions
    2. Manifestation of Fear Standard
    a. Legality Concerns
    b. Concerns About the Efficiency and Complexity of the 
Manifestation Standard
    c. Implementation Guidance and Accuracy of Manifestation To 
Identify Fear of Return
    d. Trauma Impacting Manifestation and Vulnerable Populations

[[Page 81157]]

    e. A Manifestation of Fear Does Not Sufficiently Align With a 
Valid Claim for Asylum
    f. Noncitizens May Not Understand Their Legal Right to Seek 
Asylum
    3. ``Reasonable Probability'' Screening Standard for Statutory 
Withholding of Removal and CAT Protection
    4. Other Comments on the Regulatory Provisions
    a. Application to Mexican Nationals
    b. Adequacy of Statutory Withholding of Removal and CAT 
Protection
    c. Requests for Reconsideration
    D. Other Issues Relating to the Rule
    1. Scope of the Rule and Implementation
    a. Concerns That the Encounter Thresholds Are Too Low or 
Arbitrary
    b. Concerns Regarding Exceptions From the Encounter Thresholds
    c. Other Concerns About the Encounter Thresholds
    2. Other Comments on Issues Relating to the Rule
    E. Statutory and Regulatory Requirements
    1. Administrative Procedure Act
    a. Foreign Affairs Exception
    b. Good Cause Exception
    c. Length and Sufficiency of Comment Period
    2. Impacts, Costs, and Benefits (E.O. 12866 and E.O. 13563)
    3. Alternatives
    a. Address Root Causes of Migration
    b. Prioritize Funding and Other Resources
    c. Further Expand Refugee Processing or Other Lawful Pathways
    d. Expand Asylum Merits Process
    e. Other Congressional Action
    f. Additional Suggested Measures or Revisions
    F. Out of Scope
IV. Requests for Comments
    A. Aligning the Geographic Reach of the Circumvention of Lawful 
Pathways Rule With That of the Proclamation and This Rule
    B. Extending the Applicability of the Circumvention of Lawful 
Pathways Rebuttable Presumption
V. Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Order 12866 (Regulatory Planning and Review), 
Executive Order 13563 (Improving Regulation and Regulatory Review), 
and Executive Order 14094 (Modernizing Regulatory Review)
    1. Effects Under a Without-IFR Baseline
    2. Effects Under a With-IFR Baseline
    3. Discontinuation Analysis Under a Without-IFR Baseline
    4. Effects of Expansion and Extension of Circumvention of Lawful 
Pathways Rebuttable Presumption
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Congressional Review Act
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Family Assessment
    I. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    J. National Environmental Policy Act
    K. Paperwork Reduction Act

List of Abbreviations

AO Asylum Officer
AMI Asylum Merits Interview
APA Administrative Procedure Act
BIA Board of Immigration Appeals (DOJ, EOIR)
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment
CBP U.S. Customs and Border Protection
CBP One app CBP One mobile application
CDC Centers for Disease Control and Prevention
CHNV Cuba, Haiti, Nicaragua, and Venezuela
DHS Department of Homeland Security
DOJ Department of Justice
EOIR Executive Office for Immigration Review
ERO Enforcement and Removal Operations
FARRA Foreign Affairs Reform and Restructuring Act of 1998
FERM Family Expedited Removal Management
FY Fiscal Year
HSA Homeland Security Act of 2002
ICE U.S. Immigration and Customs Enforcement
IFR Interim Final Rule
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
IJ Immigration Judge
INA or the Act Immigration and Nationality Act
LGBTQI+ Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, and 
Intersex
MPP Migrant Protection Protocols
NGO Non-Governmental Organization
NEPA National Environmental Policy Act of 1969
NTA Notice to Appear
OFO Office of Field Operations
OHSS Office of Homeland Security Statistics
POE Port of Entry
RFA Regulatory Flexibility Act
SWB Southwest Land Border
TCO Transnational Criminal Organization
TVPA Trafficking Victims Protection Act of 2000
UC Unaccompanied Child, having the same meaning as Unaccompanied 
Alien Child as defined at 6 U.S.C. 279(g)(2)
UDHR Universal Declaration of Human Rights
UIP U.S. Customs and Border Protection Unified Immigration Portal
UMRA Unfunded Mandates Reform Act of 1995
UNHCR United Nations High Commissioner for Refugees
USBP U.S. Border Patrol
USCIS U.S. Citizenship and Immigration Services
USCG U.S. Coast Guard

I. Public Participation

    Interested persons are invited to submit comments on the specific 
issues identified in Sections II.C.1 and IV of this preamble by 
submitting relevant written data, views, comments, and arguments by the 
deadline stated above. To provide the most assistance to the 
Departments, comments should explain the reason for any recommendation 
and include data, information, or authority that supports the 
recommended course of action. Comments must be submitted in English, or 
an English translation must be provided. Comments submitted in a manner 
other than pursuant to the instructions, including emails or letters 
sent to the Departments' officials, will not be considered comments on 
the rule and may not receive a response from the Departments.
    Instructions: If you submit a comment, you must include the USCIS 
Docket No. USCIS-2024-0006 for this rulemaking. All submissions may be 
posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to the 
Departments. The Departments may withhold information provided in 
comments from public viewing that they determine may impact the privacy 
of an individual or is offensive. For additional information, please 
read the Privacy and Security Notice available at https://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to https://www.regulations.gov, referencing 
USCIS Docket No. USCIS-2024-0006. You may also sign up for email alerts 
on the online docket to be notified when comments are posted, or a 
final rule is published.

II. Executive Summary

A. Background and Purpose

1. Basis for the IFR
    On June 3, 2024, the President signed Proclamation 10773 (``June 3 
Proclamation'') \1\ under sections 212(f) and 215(a) of the INA, 8 
U.S.C. 1182(f) and 1185(a), finding that because the border security 
and immigration systems of the United States were unduly strained, the 
entry into the United States of certain categories of noncitizens was 
detrimental to the interests of the United States, and

[[Page 81158]]

suspending and limiting the entry of such noncitizens. 89 FR 48487, 
48487-91 (June 7, 2024). The June 3 Proclamation directed DHS and DOJ 
to promptly consider issuing regulations addressing the circumstances 
at the southern border of the United States, including any warranted 
limitations and conditions on asylum eligibility. Id. at 48492. The 
Departments subsequently promulgated an IFR, effective June 5, 2024, 
``designed to implement the policies and objectives of the Proclamation 
by enhancing the Departments' ability to address historic levels of 
migration and efficiently process migrants arriving at the southern 
border during emergency border circumstances.'' \2\ Securing the 
Border, 89 FR 48710, 48718 (June 7, 2024) (``the IFR'').
---------------------------------------------------------------------------

    \1\ As discussed in Section II.C.1 of this preamble, the 
President has since issued a proclamation amending portions of the 
June 3 Proclamation. That amending proclamation is referred to as 
the ``September 27 Proclamation'' in this preamble. Where the 
preamble refers to ``the Proclamation'' without specifying a date, 
it is referring to Proclamation 10773 as amended by the September 27 
Proclamation.
    \2\ The Departments use the term ``emergency border 
circumstances'' in this preamble to generally refer to situations in 
which high levels of encounters at the southern border exceed the 
Department of Homeland Security's (``DHS's'') capacity to deliver 
timely consequences to most individuals who cross irregularly into 
the United States and cannot establish a legal basis to remain in 
the United States. See 89 FR at 48711 & n.2.
---------------------------------------------------------------------------

    The June 3 Proclamation and the IFR explain that, since 2021, as a 
result of political and economic conditions globally, there have been 
substantial levels of migration throughout the Western Hemisphere, 
including at the southwest land border (``SWB''). 89 FR at 48487; id. 
at 48711 & n.3. In December 2023, migration levels at the SWB surged to 
the highest monthly total on record.\3\ Id. at 48712 n.5. DHS assessed 
that the surge in late 2023 was likely the result of a number of 
factors, including the growing understanding by smugglers and migrants 
that DHS's capacity to impose consequences at the border is limited by 
the lack of resources and tools made available by Congress and the 
Government of Mexico's operational constraints caused by a lack of 
funding at the end of the 2023 calendar year, which limited its ability 
to enforce its own immigration laws. Id. at 48725 & n.115.
---------------------------------------------------------------------------

    \3\ There were nearly 302,000 U.S. Customs and Border Protection 
(``CBP'') encounters at and between ports of entry (``POEs'') along 
the southwest land border (``SWB'') in December 2023, higher than 
any previous month on record. Office of Homeland Security Statistics 
(``OHSS'') analysis of July 2024 OHSS Persist Dataset [Encounters 
Fiscal Year (``FY'') 2000-2024]; 89 FR at 48714 n.21; see also OHSS, 
Immigration Enforcement and Legal Processes Monthly Tables (last 
updated Sept. 6, 2024), https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (SWB encounters from 
FY 2014 through December 2023). OHSS figures are generally rounded 
throughout this preamble.
---------------------------------------------------------------------------

    These sustained high encounter rates outstripped the Departments' 
abilities--based on available resources--to deliver timely decisions 
and consequences in significant numbers for those without a legal basis 
to remain in the United States. 89 FR at 48714. Due to its funding 
shortfall, DHS lacked adequate resources such as sufficient USCIS 
asylum officers (``AOs'') to conduct fear screenings and sufficient 
temporary processing facilities, often called ``soft-sides.'' Id. These 
factors limited DHS's ability to conduct credible fear interviews for 
individuals in U.S. Customs and Border Protection (``CBP'') custody and 
to process and hold individuals in U.S. Immigration and Customs 
Enforcement (``ICE'') custody during the expedited removal process. Id. 
The substantial migration throughout the hemisphere, combined with 
inadequate resources and tools to keep pace, limited DHS's ability to 
impose timely consequences through expedited removal, the main 
consequence Congress has made available at the border under title 8 
authorities. 89 FR at 48713-14. Consistent with past practice prior to 
the Title 42 public health Order, individuals who are subject to but 
cannot be processed under expedited removal due to resource constraints 
are instead generally released, after screening and vetting, pending 
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a 
(``section 240 removal proceedings''), before an immigration judge 
(``IJ'').
    These higher encounter rates also place significant strain on the 
immigration courts. Recently, despite significant increases in the 
total number of IJs and case completions since Fiscal Year (``FY'') 
2021, newly initiated cases have far outpaced such completions.\4\ 
Placing more noncitizens in section 240 removal proceedings before an 
IJ--rather than processing eligible noncitizens through the expedited 
removal process--only further contributes to the immigration court 
backlog, and those cases can take several years to conclude.\5\ This 
strain is also particularly acute in light of EOIR's current 
underfunding. Rather than increase funding to support IJ team hiring, 
EOIR's FY 2024 budget was $16 million less than in FY 2023 and was 
$94.3 million less than its inflation-adjusted funding requirements 
(referred to as ``Current Services'').\6\
---------------------------------------------------------------------------

    \4\ See Executive Office of Immigration Review (``EOIR''), 
Adjudication Statistics: New Cases and Total Completions (July 
2024), https://www.justice.gov/eoir/media/1344796/dl?inline; EOIR, 
Adjudication Statistics: Immigration Judge (IJ) Hiring (July 2024), 
https://www.justice.gov/eoir/media/1344911/dl?inline.
    \5\ EOIR decisions completed in July 2024 were, on average, 
initiated in February 2022, during the significant operational 
disruptions caused by the COVID-19 pandemic (with encounters several 
months earlier than that), but 60 percent of EOIR cases initiated 
during that time were still pending as of July 2024, so the final 
mean processing time (once all such cases are complete) will be 
longer. OHSS analysis of EOIR data as of July 2024 (Mean EOIR Filed 
Dates tab); EOIR, EOIR Strategic Plan 2024, EOIR's Strategic 
Context, Current Operating Environment, https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment 
(last visited Sept. 20, 2024) (``EOIR . . . suffered operational 
setbacks during the COVID-19 pandemic years of FY 2020 through FY 
2022, including declining case completions due to health closures 
and scheduling complications and delays in agency efforts to 
transition to electronic records and the efficiencies they 
represent. While the challenges of the pandemic were overcome by 
adaptive measures taken during those years, the pandemic's impact on 
the pending caseload is still being felt.''). Although EOIR does not 
report statistics on pending median completion times for removal 
proceedings in general, it does report median completion times for 
certain types of cases, such as detained cases and cases involving 
unaccompanied children (``UCs''). See, e.g., EOIR, Median 
Unaccompanied Noncitizen Child (UAC) Case Completion and Case 
Pending Time (Apr. 19, 2024), https://www.justice.gov/eoir/media/1344951/dl?inline (median completion time of 1,254 days); EOIR, 
Median Completion Times for Detained Cases (Apr. 19, 2024), https://www.justice.gov/eoir/media/1344866/dl?inline (median completion time 
of 46 days in the second quarter of 2024 for removal, deportation, 
exclusion, asylum-only, and withholding-only cases); EOIR, 
Percentage of DHS-Detained Cases Completed within Six Months (Apr. 
19, 2024), https://www.justice.gov/eoir/media/1344886/dl?inline 
(reporting seven percent of detained cases not completed within six 
months).
    \6\ See Consolidated Appropriations Act, 2024, Public Law 118-
42, 138 Stat. 25, 133; EOIR, FY 2024 Budget Request at a Glance, 
https://www.justice.gov/d9/2023-03/eoir_fy_24_budsum_ii_omb_cleared_03.08.23.pdf.
---------------------------------------------------------------------------

    The Departments reasoned that their capacity to predictably deliver 
timely decisions and consequences is jeopardized by emergency border 
circumstances, which, left unmitigated, further add to the incentives 
and motivations for migrants to make the dangerous journey to the SWB, 
regardless of their ultimate likelihood of success on an asylum or 
protection application, and that the current immigration and asylum 
systems had become a driver for irregular migration \7\ throughout the 
region and an increasingly lucrative source of income for dangerous 
transnational criminal organizations (``TCOs''). 89 FR at 48714. 
Despite the Departments' efforts to address these substantial levels of 
migration, strengthen the consequences in place at the border, and 
enhance the overall functioning of the immigration system, including 
through the

[[Page 81159]]

Circumvention of Lawful Pathways rule, 88 FR 31314 (May 16, 2023), 
these circumstances still existed as a direct result of Congress's 
failure to update outdated immigration laws and provide needed funding 
and resources for the efficient operation of the border security and 
immigration systems. 89 FR at 48711-13, 48715.
---------------------------------------------------------------------------

    \7\ As used in this preamble, ``irregular migration'' refers to 
the movement of people into another country unlawfully or without 
authorization. With respect to the United States' borders, the term 
``irregular'' is used in this preamble to refer to physically 
entering between POEs or otherwise entering without documents 
sufficient for lawful admission, unless entering with advance 
authorization to travel or at a pre-scheduled time and place to 
present at a POE.
---------------------------------------------------------------------------

    In the absence of congressional action, and consistent with the 
President's direction in the June 3 Proclamation to consider issuing 
regulations, the Departments adopted the provisions in the IFR, which 
were intended to address the emergency border circumstances and to 
substantially improve the Departments' ability to deliver timely 
decisions and consequences during such circumstances. See 89 FR at 
48710. The IFR established a limitation on asylum eligibility that 
applies to certain individuals who enter irregularly across the 
southern border during emergency border circumstances and revised 
certain procedures applicable to the expedited removal process during 
such periods to reduce the time required to apply consequences to those 
individuals and remove noncitizens who do not have a legal basis to 
remain in the United States. Id. at 48715. The IFR was expected to 
achieve several benefits: reduce strains on limited Federal Government 
immigration processing and enforcement resources; preserve the 
Departments' continued ability to safely, humanely, and effectively 
enforce and administer the immigration laws; protect against 
overcrowding in border facilities; and reduce the ability of 
exploitative TCOs and smugglers to operate. Id. at 48745, 48767.
2. The Departments' Experience With the IFR
    The IFR's limitation on asylum eligibility and revised procedures 
are working as intended, though as discussed below, the Departments 
have determined that modest adjustments to the threshold calculations 
are warranted. As explained in the paragraphs that follow, in the weeks 
since June 5, 2024, U.S. Border Patrol (``USBP'') encounters between 
the ports of entry (``POEs'') have dropped markedly. Although the 
Departments believe that this has occurred for a range of reasons, one 
important reason is that the rule itself has significantly shifted 
incentives at the southern border. As explained further below, and 
consistent with the explanation provided in the IFR, the rule has, at 
least in part, significantly improved DHS's ability to place into 
expedited removal a majority of single adults and individuals in family 
units encountered by USBP; to avoid large-scale releases of such 
individuals into the United States pending section 240 removal 
proceedings; and to allow for swift resolution of such individuals' 
cases and, where appropriate, their removal. See id. At the same time, 
the Departments have continued to implement the largest expansion of 
lawful, safe, and orderly pathways and processes \8\ for individuals to 
come to the United States and to uphold the United States' non-
refoulement obligations under international law.
---------------------------------------------------------------------------

    \8\ The terms ``lawful pathways,'' ``lawful, safe, and orderly 
pathways,'' ``lawful pathways and processes,'' and ``lawful, safe, 
and orderly pathways and processes,'' as used in this preamble, 
refer to the range of pathways and processes by which migrants are 
able to enter the United States or other countries in a lawful, 
safe, and orderly manner, including to seek asylum and other forms 
of protection or other immigration benefits for which they may be 
eligible.
---------------------------------------------------------------------------

    In the period between June 5, 2024, and August 31, 2024, average 
daily total encounters between POEs at the SWB under the Proclamation 
and IFR have fallen 59 percent from the level of average daily 
encounters during the immediate post-pandemic period, i.e., the period 
after the Circumvention of Lawful Pathways rule began to apply on May 
12, 2023,\9\ and before the IFR entered into effect on June 5, 
2024.\10\ This dramatic decrease in encounters has spanned multiple 
demographic categories. For instance, DHS has observed a drop in 
encounters of family units, a demographic category that presents 
particular operational challenges. During the immediate post-pandemic 
period, DHS experienced an average of about 2,000 daily encounters of 
individuals in family units.\11\ Since the Departments issued the IFR, 
that daily average has dropped 70 percent to about 600 individuals in 
family units encountered daily.\12\ Other significant drops in 
encounter numbers occurred with single adults and unaccompanied 
children (``UCs'').\13\
---------------------------------------------------------------------------

    \9\ While the rule's effective date was May 11, 2023, 88 FR at 
31314, the rule only applies to noncitizens who enter the United 
States ``[s]ubsequent to the end of implementation of the Title 42 
public health Order[,]'' 8 CFR 208.33(a)(1)(ii), which expired at 
11:59 p.m. on May 11, 2023, see DHS, Fact Sheet: Department of State 
and Department of Homeland Security Announce Additional Security 
Measures to Humanely Manage Border through Deterrence, Enforcement, 
and Diplomacy (May 10, 2023), https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border. 
Therefore, the Circumvention of Lawful Pathways rule began to apply 
on May 12, 2023.
    \10\ OHSS analysis of July 2024 OHSS Persist Dataset and data 
downloaded from the U.S. Customs and Border Protection Unified 
Immigration Portal (``UIP'') on September 3, 2024 (Summary 
Statistics tab). There was an average of about 2,100 total 
encounters per day (including all demographic groups) between POEs 
at the SWB from June 5, 2024, to August 31, 2024, compared to around 
5,100 per day during the immediate post-pandemic period, defined as 
May 12, 2023, through June 4, 2024. Id.
    \11\ OHSS analysis of July 2024 Persist Dataset (Summary 
Statistics tab).
    \12\ OHSS analysis data downloaded from UIP on September 3, 2024 
(Summary Statistics tab).
    \13\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    In contrast to processing before the IFR, DHS is now placing the 
majority of single adults and individuals in family units encountered 
by USBP at the SWB into expedited removal. Between June 5, 2024, and 
August 31, 2024, DHS placed 59 percent of these noncitizens into 
expedited removal proceedings, compared to 18 percent of such 
noncitizens during the immediate post-pandemic period following the end 
of the Title 42 public health Order.\14\ In the pre-pandemic 
period,\15\ DHS placed 41 percent of such noncitizens into expedited 
removal proceedings.\16\ The decrease in the number of encounters at 
the SWB directly enabled DHS's increased placement rate of noncitizens 
into expedited removal proceedings. Because encounter levels have 
decreased, DHS is able to use its operational resources to refer a 
higher percentage of noncitizens into expedited removal proceedings and 
deliver timely consequences in a greater proportion of cases.\17\ The 
IFR is remedying the

[[Page 81160]]

negative effects of the previously sustained high encounter numbers 
described in the IFR and in this rule. See, e.g., 89 FR at 48749 (``In 
order to maximize the consequences for those who cross unlawfully or 
without authorization, DHS endeavors to deliver consequences swiftly to 
the highest proportion of individuals who fail to establish a legal 
basis to remain in the United States. This includes, subject to 
available resources, referring the maximum number of eligible 
individuals possible into expedited removal to quickly adjudicate their 
claims.'').
---------------------------------------------------------------------------

    \14\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab).
    \15\ Throughout this preamble the ``pre-pandemic period'' refers 
to FY 2014 to FY 2019.
    \16\ OHSS analysis of July 2024 Persist Dataset (Summary 
Statistics tab). DHS reinstated removal orders for a larger share of 
single adults and individuals in family units during the pre-
pandemic period (26 percent during the pre-pandemic period compared 
to 14 percent under the interim final rule (``IFR'')), which is 
unsurprising given that the Departments are seeing fewer repeat 
encounters as a result of the higher proportion of non-Mexicans/non-
northern Central Americans--with more limited migration histories--
as a share of total encounters. Id.; 89 FR at 48721 n.49. Notably, 
the sum of reinstatements and expedited removals is still higher 
during the IFR (a combined 73 percent) than it was during the pre-
pandemic period (67 percent). OHSS analysis of July 2024 Persist 
Dataset (Summary Statistics tab).
    \17\ The most effective way to deliver timely consequences to 
noncitizens who enter irregularly is through the expedited removal 
system, but DHS's capacity to use that system on a large scale is 
subject to resource constraints. One such constraint is space to 
hold noncitizens in DHS custody during the expedited removal 
process. Because noncitizens in expedited removal are subject to 
detention, including during the pendency of their credible fear 
proceedings, the use of expedited removal may lead to an increase in 
the time that an individual spends in CBP custody. This is 
particularly the case when the individual is receiving their 
credible fear interview while in CBP custody. When there are high 
numbers of individuals placed in expedited removal, the number of 
individuals who remain in CBP custody for a lengthier period can 
increase rapidly, leading to overcrowded conditions. In addition, 
given the nature of CBP facilities--which are designed for short-
term temporary holding--CBP endeavors to move all individuals out of 
custody in an expeditious manner and to avoid overcrowding.
    Thus, if high encounter levels result in a significant number of 
individuals in CBP custody, or if those individuals have been in 
custody for a significant period of time, CBP may lose optionality: 
having lost the capacity to place additional noncitizens into the 
expedited removal process, CBP generally must take steps to release 
some individuals from custody to ensure safe and sanitary conditions 
and appropriate time in custody. In cases when release is 
appropriate or warranted, CBP generally issues an individual a 
Notice to Appear (``NTA'') before an immigration judge (``IJ'') 
prior to their release from custody. Although in some circumstances 
transfer of such noncitizens to U.S. Immigration and Customs 
Enforcement (``ICE'') for detention for the duration of the credible 
fear process is possible, the ability to do so is dependent on the 
availability of space in ICE's already significantly strained 
detention network. Therefore, when ICE detention space is 
unavailable, noncitizens must then be processed by CBP through non-
expedited removal pathways.
---------------------------------------------------------------------------

    Relatedly, the IFR has also significantly reduced the percentage of 
noncitizens encountered between POEs at the SWB who are released into 
the United States pending completion of their section 240 removal 
proceedings. For instance, from June 5, 2024, through August 31, 2024, 
USBP placed 25 percent of noncitizens encountered at the SWB into 
section 240 removal proceedings.\18\ This is down 41 percentage points 
from the immediate post-pandemic period, when USBP placed 66 percent of 
such noncitizens into section 240 removal proceedings, translating to a 
reduction of over 60 percent.\19\ Similarly, between June 5, 2024, and 
August 31, 2024, 33 percent of all noncitizens encountered at the SWB 
were sent to Enforcement and Removal Operations (``ERO''); this figure 
is up from 19 percent during the immediate post-pandemic period.\20\
---------------------------------------------------------------------------

    \18\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab).
    \19\ OHSS analysis of July 2024 Persist Dataset (Summary 
Statistics tab).
    \20\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    The IFR's change to how DHS immigration officers identify and refer 
noncitizens for credible fear interviews has resulted in a reduction of 
such referrals. Under the IFR, during emergency border circumstances, 
instead of asking specific questions about fear or providing lengthy 
advisals, DHS refers a noncitizen for such an interview if the 
noncitizen manifests a fear of return, expresses an intention to apply 
for asylum or protection, or expresses a fear of persecution or torture 
or a fear of return to the noncitizen's country or the country of 
removal. From June 5, 2024, through August 31, 2024, 27 percent of 
noncitizens encountered between POEs at the SWB and processed for 
expedited removal indicated an intention to apply for asylum or a fear 
of persecution or torture, compared with a 37 percent fear-claim rate 
during the pre-pandemic period and 57 percent during the immediate 
post-pandemic period.\21\ In the IFR, DHS explained that based on its 
extensive experience administering the expedited removal process, it 
concluded that the affirmative questions asked under steady state 
operations are suggestive and account for part of the high rates of 
referrals and screen-ins that do not ultimately result in a grant of 
asylum or protection. 89 FR at 48743.\22\ The shift to a manifestation 
standard has, as intended, reduced the gap between high rates of 
referrals and screen-ins and historic ultimate grant rates as well as 
increased processing efficiency for DHS, and noncitizens who manifest 
or claim a fear, or who indicate an intention to apply for asylum, 
still have their claims adjudicated as required by the INA.
---------------------------------------------------------------------------

    \21\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
    \22\ From FY 2014 through 2019, of total SWB encounters 
processed for expedited removal and then referred to section 240 
proceedings, only 18 percent of EOIR case completions ultimately 
resulted in a grant of protection or relief. 89 FR at 48743 n.219; 
OHSS analysis of June 2024 Enforcement Lifecycle dataset (Historic 
ERCF Results tab). During that same period, 37 percent of SWB 
encounters processed for expedited removal claimed fear, and 76 
percent of those who claimed fear were screened in and referred to 
section 240 removal proceedings. OHSS analysis of July 2024 Persist 
Dataset (Summary Statistics tab).
---------------------------------------------------------------------------

    The shift to a ``reasonable probability'' standard for screening 
for statutory withholding of removal and protection under the 
regulations implementing U.S. obligations under Article 3 of the 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment (``CAT''), Dec. 10, 1984, S. Treaty Doc. No. 
100-20 (1988), 1465 U.N.T.S 85,\23\ has further reduced the difference 
between high screen-in rates and historically low ultimate grant rates 
of protection or relief. Overall, of those USBP has referred for 
credible fear interviews, the comprehensive screen-in rate has dropped 
to 57 percent, compared to 83 percent during the pre-pandemic period 
and 62 percent during the immediate post-pandemic period.\24\ Of USBP 
encounters screened by USCIS under the rule's ``reasonable 
probability'' standard, the screen-in rate has decreased to 
approximately 48 percent \25\ compared to 76 percent \26\ under the 
``significant possibility'' standard during the pre-pandemic period, 
and approximately 51 percent \27\ for those screened under the 
Circumvention of Lawful Pathway rule's lower ``reasonable possibility'' 
standard.\28\ The Departments believe the lower screen-in rate under 
the IFR better

[[Page 81161]]

aligns with the percentage of noncitizens who have historically been 
granted protection or relief. That is to say, noncitizens screened 
under the higher ``reasonable probability'' standard that receive 
positive findings are more likely to have meritorious claims in 
ultimate adjudications.
---------------------------------------------------------------------------

    \23\ In this preamble, consistent with the IFR, the Departments 
generally refer to protection under the regulations implementing 
U.S. obligations under Article 3 of the Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treatment or Punishment 
(``CAT'') as ``CAT protection.'' See, e.g., 89 FR at 48716.
    \24\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab). 
Data for immediate post-pandemic and IFR periods are limited to SWB 
encounters between POEs. The comprehensive screen-in rate includes 
positive determinations issued by U.S. Citizenship and Immigration 
Services (``USCIS''), cases where an IJ vacated USCIS's negative 
determination, and cases administratively closed by USCIS in which a 
discretionary NTA was issued. For cases processed under either the 
Circumvention of Lawful Pathways rule or the IFR, the comprehensive 
screen-in rate encompasses cases where USCIS or an IJ determined 
that the noncitizen was found not subject to the Circumvention of 
Lawful Pathways rule's rebuttable presumption or the IFR's 
limitation on asylum eligibility under the significant possibility 
standard, in addition to cases screened-in under the ``reasonable 
possibility'' or ``reasonable probability'' standards, as 
applicable.
    \25\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Fear Screening--STB tab, Line 9 divided by Line 8). Data are 
limited to SWB encounters between POEs.
    \26\ OHSS analysis of June 2024 Enforcement Lifecycle dataset 
(Historic ERCF Results tab). Data are limited to SWB encounters 
between POEs.
    \27\ OHSS analysis of July 2024 Persist Dataset (Fear 
Screening--CLP tab, Line 13 divided by Line 12). Data are limited to 
SWB encounters between POEs.
    \28\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab). Although in the preamble to the IFR, 
DHS anticipated that the manifestation approach ``will likely lead 
to a higher proportion of those referred having colorable claims for 
protection[,]'' see 89 FR at 48743, USCIS screen-in rates have 
dropped slightly, as noted above, see OHSS analysis of June 2024 
Enforcement Lifecycle dataset, July 2024 Persist Dataset, and data 
downloaded from UIP on September 3, 2024 (Historic ERCF Results, 
Fear Screening--STB, and Fear Screening--CLP tabs). There could be 
multiple reasons for this development, including the effects of the 
``manifestation'' and ``reasonable probability'' provisions, which 
are difficult to disentangle.
---------------------------------------------------------------------------

    As a result of the IFR, DHS is able to more quickly remove a 
greater percentage of those who do not have a legal basis to remain in 
the United States. In the pre-pandemic period, the median processing 
time for a noncitizen encountered by USBP with a negative fear 
determination in expedited removal was 75 days from encounter to 
removal.\29\ During the immediate post-pandemic period, this metric 
dropped to 44 days.\30\ From June 5, 2024, through August 31, 2024, the 
metric dropped again to 32 days.\31\ Similarly, the processing time 
from when a noncitizen is referred for a credible fear interview to 
when the noncitizen receives a fear determination is down 58 percent 
compared to the immediate post-pandemic period and down 71 percent 
compared to the pandemic period.\32\ The Departments attribute the 
decreased processing time to key provisions of the IFR. For instance, 
the manifestation of fear provision has resulted in streamlined 
processing and a lower percentage of individuals indicating fear, 
thereby shortening the average processing time as those who do not 
indicate fear do not receive a screening by an AO or review by an IJ 
prior to removal. Then, for those who indicate fear, following a 
minimum consultation period that DHS reduced through separate 
guidance,\33\ AOs, supervisory AOs, and IJs have been applying the 
IFR's reasonable probability screening standard. In addition, between 
June 5, 2024, and August 31, 2024, 32 percent of all noncitizens 
encountered at the SWB were removed or returned to their home country 
or to Mexico directly from USBP custody.\34\ This is double the rate of 
repatriations from USBP custody (16 percent) that occurred during the 
immediate post-pandemic period.\35\ Overall, from June 5, 2024, through 
August 31, 2024, DHS has removed or returned 70 percent of single 
adults and individuals in family units encountered by USBP.\36\ This 
contrasts with a 28-percent rate during the immediate post-pandemic 
period.\37\ Viewed in terms of daily averages, under the IFR through 
August 31, 2024, there have been about 1,880 daily encounters of single 
adults and individuals in family units.\38\ And DHS has averaged about 
1,320 total daily repatriations and 580 releases from CBP custody 
pending immigration proceedings over that time frame.\39\
---------------------------------------------------------------------------

    \29\ OHSS analysis of June 2024 Enforcement Lifecycle dataset 
(Summary Statistics tab).
    \30\ OHSS analysis of July 2024 Persist Dataset (Summary 
Statistics tab).
    \31\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab).
    \32\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
    \33\ The Immigration and Nationality Act (``INA'') requires that 
the noncitizen be given information about the credible fear 
interview and provides the right for noncitizens in the credible 
fear process to consult with a person or persons of their choosing 
prior to the interview, so long as the consultation is conducted 
``according to [duly prescribed] regulations.'' INA 
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); see INA 103(a), 8 
U.S.C. 1103(a); 6 U.S.C. 557. Under those regulations, including 
during circumstances in which the measures in the IFR apply, 
consultation shall be at no expense to the Government, and 
consultations ``shall be made available in accordance with the 
policies and procedures of the detention facility where the alien is 
detained, . . . and shall not unreasonably delay the process.'' 8 
CFR 235.3(b)(4)(ii), 235.15(a). The regulations do not require that 
the noncitizen be allowed a particular amount of time to consult 
with the person or persons of their choosing. Id. On June 4, 2024, 
to support implementation of the Proclamation and IFR, as a matter 
of internal policy, USCIS reduced the minimum consultation period 
for noncitizens subject to the rule's provisions from at least 24 
hours to at least 4 hours beginning at the time ICE or CBP provides 
the noncitizen with the opportunity to consult and continuing only 
during the hours of 7 a.m. and 7 p.m. local time. See Memorandum for 
Jennifer B. Higgins, Deputy Dir., USCIS, from Ted Kim, Assoc. Dir., 
Refugee, Asylum, and Int'l Operations Directorate, USCIS, Re: 
Scheduling of Credible Fear Interviews While the Measures in the 
Securing the Border Interim Final Rule Apply (June 4, 2024).
    \34\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab).
    \35\ OHSS analysis of July 2024 Persist Dataset (Summary 
Statistics tab).
    \36\ DHS encountered 165,000 single adults and individuals in 
family units between June 4, 2024, and August 31, 2024, and had 
repatriated 119,000 of them as of September 3, 2024. OHSS analysis 
of data downloaded from UIP on Sept. 3, 2024 (IFR Details tab).
    \37\ During that time period, there were 1.87 million such 
encounters with noncitizens other than UCs, of which 511,000 
noncitizens were repatriated. OHSS analysis of July 2024 OHSS 
Persist Dataset (Immediate Post-Pandemic Details tab).
    \38\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (IFR Details tab).
    \39\ Id.
---------------------------------------------------------------------------

    Faster repatriations free up DHS resources and capacity for 
processing new arrivals, allowing for further increases in the use of 
expedited removal and fewer releases pending completion of section 240 
removal proceedings. These successes disrupt the ``vicious cycle'' the 
Departments sought to counteract in issuing the IFR. 89 FR at 48714; 
see id. at 48751 (``This reality contributes to the vicious cycle . . . 
in which increasing numbers of releases lead to increased migration, 
fueled by the narrative, pushed by smugglers, that migrants who are 
encountered at the border will be allowed to remain and work in the 
United States for long periods of time.'').
    Meanwhile, noncitizens have continued to use lawful, safe, and 
orderly pathways and processes to seek entry to the United States. For 
example, the use of the CBP One mobile application (``CBP One app'') to 
schedule an appointment at a SWB POE is an available tool that permits 
noncitizens to present themselves at the border in a lawful, safe, and 
orderly manner. From June 5, 2024, through August 31, 2024, 
approximately 123,500 noncitizens with CBP One appointments presented 
at SWB POEs and were accordingly processed outside of the procedures 
set forth in the IFR.\40\ See 8 CFR 208.35(a)(1), 1208.35(a)(1); 
section 3(b)(v)(D) of the Proclamation. During the pre-pandemic period, 
approximately 300 encounters were processed at SWB POEs per day.\41\ 
Since the launch of the CBP One app in January 2023, approximately 
1,500 encounters have been processed at SWB POEs each day (with and 
without CBP One appointments).\42\ And from the start of FY 2024 
through August 31, 2024, that average increased to approximately 1,700 
per day.\43\ Other lawful pathways that continue to be available 
include expanded parole processes for specific populations and 
demographics such as nationals of Cuba, Haiti, Nicaragua, and Venezuela 
(``CHNV''), which allow certain individuals with U.S.-based supporters 
to seek parole on a case-by-case basis for urgent humanitarian reasons 
or significant public benefit; \44\ the Safe Mobility Offices in 
Colombia, Costa Rica, Ecuador, and Guatemala, which provide, among 
other services, access to information and referrals for humanitarian 
and family parole processes, labor pathways, expedited refugee 
processing, and other lawful, safe, and orderly pathways for eligible

[[Page 81162]]

individuals to the United States and other countries; \45\ country-
specific family reunification parole processes for certain nationals of 
Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, and Honduras 
who have qualifying U.S. citizen relatives in the United States; \46\ 
and temporary nonimmigrant worker visas, which provide employment 
opportunities for eligible individuals.\47\
---------------------------------------------------------------------------

    \40\ Id.
    \41\ OHSS analysis of July 2024 Persist Dataset (OFO Encounters 
tab).
    \42\ Id. On June 30, 2023, CBP announced the expansion of 
available appointments for noncitizens through the CBP One mobile 
application (``CBP One app'') to 1,450 per day, up from 1,250. 
Cumulatively, the expansion to 1,450 appointments represented a 
nearly 50 percent increase from May 12, 2023, when CBP processed 
1,000 appointments per day. See CBP, CBP One<SUP>TM</SUP> 
Appointments Increased to 1,450 Per Day (June 30, 2023), https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day.
    \43\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (OFO Encounters tab).
    \44\ USCIS, Processes for Cubans, Haitians, Nicaraguans, and 
Venezuelans (last reviewed/updated Aug. 29, 2024), https://www.uscis.gov/CHNV.
    \45\ U.S. Dep't of State, Safe Mobility Initiative: Helping 
Those in Need and Reducing Irregular Migration in the Americas, 
https://www.state.gov/safe-mobility-initiative/ (last visited Aug. 
23, 2024).
    \46\ See USCIS, Family Reunification Parole Processes (last 
reviewed/updated Sept. 10, 2024), https://www.uscis.gov/FRP.
    \47\ See USCIS, Temporary (Nonimmigrant) Workers (last reviewed/
updated July 24, 2024), https://www.uscis.gov/working-in-the-united-states/temporary-nonimmigrant-workers.
---------------------------------------------------------------------------

    Thus, the provisions of the IFR and other measures taken to assist 
in the IFR's implementation are effective tools in managing levels of 
irregular migration that, absent key policy interventions like this 
rule, severely strain the Departments' abilities to safely, 
effectively, and humanely enforce and administer U.S. immigration laws. 
The historically high level of encounters that DHS experienced in the 
months before the IFR's implementation has decreased markedly, and 
DHS's ability to expeditiously process noncitizens and deliver swift 
consequences to those who do not establish a legal basis to remain in 
the United States has therefore improved significantly.

B. Legal Authority

    The Secretary and the Attorney General jointly issue this rule 
pursuant to their shared and respective authorities concerning 
consideration of claims for asylum, statutory withholding of removal, 
and protection under regulations implemented pursuant to U.S. 
obligations under Article 3 of the CAT. The Homeland Security Act of 
2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as amended, created 
DHS and transferred to the Secretary of Homeland Security many 
functions related to the administration and enforcement of Federal 
immigration law while maintaining some functions and authorities with 
the Attorney General, including some shared concurrently with the 
Secretary.\48\
---------------------------------------------------------------------------

    \48\ The Homeland Security Act of 2002 (``HSA'') further 
provides, ``Nothing in this Act, any amendment made by this Act, or 
in section 103 of the [INA], as amended . . . , shall be construed 
to limit judicial deference to regulations, adjudications, 
interpretations, orders, decisions, judgments, or any other actions 
of the Secretary of Homeland Security or the Attorney General.'' 116 
Stat. at 2274 (codified at 6 U.S.C. 522).
---------------------------------------------------------------------------

    The INA, as amended by the HSA, charges the Secretary ``with the 
administration and enforcement of [the INA] and all other laws relating 
to the immigration and naturalization of aliens,'' except insofar as 
those laws assign functions to certain other officers. INA 103(a)(1), 8 
U.S.C. 1103(a)(1). The INA grants the Secretary the authority to 
establish regulations and take other actions that the Secretary deems 
``necessary for carrying out'' the Secretary's authority under the 
immigration laws. INA 103(a)(3), 8 U.S.C. 1103(a)(3); see also 6 U.S.C. 
202.
    The HSA provides the Attorney General with ``such authorities and 
functions under [the INA] and all other laws relating to the 
immigration and naturalization of aliens as were [previously] exercised 
by [EOIR], or by the Attorney General with respect to [EOIR].'' INA 
103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521(a). In addition, 
under the HSA, the Attorney General retains authority to ``establish 
such regulations, . . . issue such instructions, review such 
administrative determinations in immigration proceedings, delegate such 
authority, and perform such other acts as the Attorney General 
determines to be necessary for carrying out'' the Attorney General's 
authorities under the immigration laws. INA 103(g)(2), 8 U.S.C. 
1103(g)(2).
    Under the HSA, the Attorney General retains authority over the 
conduct of section 240 removal proceedings. These adjudications are 
conducted by IJs within DOJ's EOIR. See 6 U.S.C. 521(a); INA 103(g)(1), 
8 U.S.C. 1103(g)(1); 8 CFR 1240.1. With limited exceptions, IJs 
adjudicate asylum, statutory withholding of removal, and CAT protection 
applications filed by noncitizens during the pendency of section 240 
removal proceedings, including asylum applications referred by USCIS to 
the immigration court. INA 101(b)(4), 8 U.S.C. 1101(b)(4); INA 
240(a)(1), 8 U.S.C. 1229a(a)(1); INA 241(b)(3), 8 U.S.C. 1231(b)(3); 8 
CFR 1208.2(b), 1240.1(a); see also Dhakal v. Sessions, 895 F.3d 532, 
536-37 (7th Cir. 2018) (describing affirmative and defensive asylum 
processes). The Board of Immigration Appeals (``BIA''), also within 
DOJ's EOIR, in turn hears appeals from IJ decisions. See 8 CFR 
1003.1(a)(1), (b)(3); see also Garland v. Ming Dai, 593 U.S. 357, 366-
67 (2021) (describing appeals from IJs to the BIA). And the INA 
provides that the ``determination and ruling by the Attorney General 
with respect to all questions of law shall be controlling.'' INA 
103(a)(1), 8 U.S.C. 1103(a)(1).
    In addition to the separate authorities discussed above, the 
Attorney General and the Secretary share some authorities. Section 208 
of the INA, 8 U.S.C. 1158, authorizes the ``Secretary of Homeland 
Security or the Attorney General'' to ``grant asylum'' to a noncitizen 
``who has applied for asylum in accordance with the requirements and 
procedures established by'' the Secretary or the Attorney General under 
section 208 if the Secretary or the Attorney General determines that 
the noncitizen is a ``refugee'' within the meaning of section 
101(a)(42)(A) of the INA, 8 U.S.C. 1101(a)(42)(A). INA 208(b)(1)(A), 8 
U.S.C. 1158(b)(1)(A). Section 208 thereby authorizes the Secretary and 
the Attorney General to ``establish[ ]'' ``requirements and 
procedures'' to govern asylum applications. Id. The statute further 
authorizes them to ``establish,'' ``by regulation,'' ``additional 
limitations and conditions, consistent with'' section 208, under which 
a noncitizen ``shall be ineligible for asylum.'' INA 208(b)(2)(C), 8 
U.S.C. 1158(b)(2)(C); see also INA 208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) 
(authorizing the Secretary and the Attorney General to ``provide by 
regulation for any other conditions or limitations on the consideration 
of an application for asylum not inconsistent with [the INA]'').\49\ 
The INA also provides the Secretary and the Attorney General authority 
to publish regulations governing their respective roles regarding 
apprehension, inspection and admission, detention and removal, 
withholding of removal, deferral of removal, and release of noncitizens 
encountered in the interior of the United States or at or between POEs. 
See INA 103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3), (g)(2); see also, e.g., 
INA 235(b)(1)(B)(iii)(III), (B)(iv), (C), 8 U.S.C. 
1225(b)(1)(B)(iii)(III), (B)(iv), (C).
---------------------------------------------------------------------------

    \49\ Under the HSA, the references to the ``Attorney General'' 
in the INA also encompass the Secretary with respect to statutory 
authorities vested in the Secretary by the HSA or subsequent 
legislation, including in relation to immigration proceedings before 
DHS. 6 U.S.C. 251, 271(b)(3), (5), 557.
---------------------------------------------------------------------------

    The INA and HSA grant DHS the authority to adjudicate asylum 
applications and to conduct credible fear interviews, make credible 
fear determinations in expedited removal proceedings, and establish 
procedures for further consideration of asylum applications after an 
individual is found to have a credible fear. INA 103(a)(1), (a)(3), 8 
U.S.C. 1103(a)(1), (a)(3); INA 208(b)(1)(A), (d)(1), (d)(5)(B), 8 
U.S.C. 1158(b)(1)(A), (d)(1), (d)(5)(B); INA 235(b)(1)(B), 8 U.S.C. 
1225(b)(1)(B); see also 6 U.S.C. 271(b)(3) (providing for the transfer 
of adjudication of asylum and

[[Page 81163]]

refugee applications from the Commissioner of Immigration and 
Naturalization to the Director of the Bureau of Citizenship and 
Immigration Services, now USCIS); 6 U.S.C. 557 (providing that 
references to any officer from whom functions are transferred under the 
HSA are to be understood as referring to the Secretary of Homeland 
Security). Within DHS, AOs conduct credible fear interviews, make 
credible fear determinations, and determine whether a noncitizen's 
asylum application should be granted, all of which are subject to 
review by a supervisory AO. See 8 CFR 208.2(a), 208.9, 208.14(b), 
208.30(b), (e)(6)(i), (e)(8). The INA grants IJs the authority to 
review AO negative credible fear determinations. INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).
    The United States is a party to the 1967 Protocol Relating to the 
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 
(``Refugee Protocol''), which incorporates Articles 2 through 34 of the 
1951 Convention Relating to the Status of Refugees, July 28, 1951, 19 
U.S.T. 6259, 189 U.N.T.S. 150 (``Refugee Convention''). Article 33.1 of 
the Refugee Convention generally prohibits parties to the Convention 
from expelling or returning (``refouling'') ``a refugee in any manner 
whatsoever to the frontiers of territories where his life or freedom 
would be threatened on account of his race, religion, nationality, 
membership of a particular social group or political opinion.'' Refugee 
Convention, 19 U.S.T. at 6276, 189 U.N.T.S. at 176.
    Because the Refugee Protocol is not self-executing,\50\ Congress 
implemented these non-refoulement obligations through the INA, as 
amended by the Refugee Act of 1980, Public Law 96-212, 94 Stat. 102 
(``Refugee Act''). See 8 U.S.C. 1253(h) (1952); Sale v. Haitian Ctrs. 
Council, Inc., 509 U.S. 155, 174-77 (1993) (describing the history of 
the statutory withholding provision and the Refugee Act amendments). 
The Supreme Court has long recognized that the United States implements 
its non-refoulement obligations under Article 33 of the Refugee 
Convention (via the Refugee Protocol) through the statutory withholding 
of removal provision in section 241(b)(3) of the INA, 8 U.S.C. 
1231(b)(3) (``statutory withholding of removal''), which provides that 
a noncitizen may not be removed to a country where their life or 
freedom would be threatened on account of one of the protected grounds 
listed in Article 33 of the Refugee Convention.\51\ See INA 241(b)(3), 
8 U.S.C. 1231(b)(3); see also 8 CFR 208.16, 1208.16. The INA also 
authorizes the Secretary and the Attorney General to implement 
statutory withholding of removal under section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3). See INA 103(a)(1), (3), (g)(1)-(2), 8 U.S.C. 
1103(a)(1), (3), (g)(1)-(2).
---------------------------------------------------------------------------

    \50\ E.g., Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) 
(``The 1967 Protocol is not self-executing, nor does it confer any 
rights beyond those granted by implementing domestic legislation.'' 
(citations omitted)).
    \51\ See INS v. Aguirre-Aguirre, 526 U.S. 415, 426-27 (1999); 
see also INS v. Cardoza-Fonseca, 480 U.S. 421, 440-41 (1987) 
(distinguishing between Article 33's non-refoulement prohibition, 
which aligns with what was then called withholding of deportation, 
and Article 34's call to ``facilitate the assimilation and 
naturalization of refugees[,]'' which the Court found aligned with 
the discretionary provision in section 208 of the INA, 8 U.S.C. 
1158).
---------------------------------------------------------------------------

    The Departments also have authority to implement Article 3 of the 
CAT, which is likewise not self-executing.\52\ The Foreign Affairs 
Reform and Restructuring Act of 1998 (``FARRA'') delegates to the 
Departments the authority to ``prescribe regulations to implement the 
obligations of the United States under Article 3 of the [CAT], subject 
to any reservations, understandings, declarations, and provisos 
contained in the United States Senate resolution of ratification of the 
Convention.'' Public Law 105-277, div. G, sec. 2242(b), 112 Stat. 2681, 
2681 (codified at 8 U.S.C. 1231 note). Consistent with FARRA, DHS and 
DOJ have implemented in the Code of Federal Regulations the United 
States' obligations under Article 3 of the CAT. See, e.g., 8 CFR 
208.16(c)-208.18, 1208.16(c)-1208.18; Regulations Concerning the 
Convention Against Torture, 64 FR 8478 (Feb. 19, 1999), amended by 64 
FR 13881 (Mar. 23, 1999).
---------------------------------------------------------------------------

    \52\ Omar v. McHugh, 646 F.3d 13, 17 (D.C. Cir. 2011) (``This 
multilateral treaty is non-self-executing and thus does not itself 
create any rights enforceable in U.S. courts.'' (citation omitted)).
---------------------------------------------------------------------------

    This rule is necessary because, although the Proclamation 
recognizes that the asylum system has contributed to the border 
emergency, the Proclamation itself does not and cannot affect 
noncitizens' right to apply for asylum, their eligibility for asylum, 
or asylum procedures. This recognition that section 212(f) does not 
affect the right to pursue a claim for asylum has been the Executive 
Branch's consistent position for four decades.\53\ That longstanding 
understanding follows from the text and structure of the governing 
statutes. Section 212(f) provides that under certain circumstances, the 
President may ``suspend the entry of all aliens or any class of aliens 
as immigrants or nonimmigrants, or impose on the entry of aliens any 
restrictions he may deem to be appropriate.'' INA 212(f), 8 U.S.C. 
1182(f). Although this provision--first enacted in 1952--``grants the 
President broad discretion,'' it ``operate[s]'' only within its 
``sphere.'' Trump v. Hawaii, 585 U.S. 667, 683-84, 695 (2018). Section 
212 of the INA, 8 U.S.C. 1182 (entitled ``Inadmissible aliens''), 
generally ``defines the universe of aliens who are admissible'' and 
``sets the boundaries of admissibility into the United States.'' Id. at 
695. Hence, when section 212(f) authorizes the President to suspend 
``entry,'' it ``enabl[es] the President to supplement the other grounds 
of inadmissibility in the INA,'' id. at 684 (citing Abourezk v. Reagan, 
785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986)), and to bar individuals from 
entry into the United States.
---------------------------------------------------------------------------

    \53\ In 1984, then-Assistant Attorney General for the Office of 
Legal Counsel Theodore B. Olson advised that section 212(f) did not 
permit the President to eliminate the asylum rights of noncitizens 
who had hijacked a plane and, as a condition of the plane's release, 
been flown to the United States. And in 2018, the Departments 
reaffirmed that ``[a]n alien whose entry is suspended or restricted 
under . . . a [section 212(f)] proclamation, but who nonetheless 
reaches U.S. soil contrary to the President's determination that the 
alien should not be in the United States, would remain subject to 
various procedures under immigration laws[,]'' including 
``expedited-removal proceedings'' where they could ``raise any 
claims for protection[.]'' Aliens Subject to a Bar on Entry Under 
Certain Presidential Proclamations; Procedures for Protection 
Claims, 83 FR 55934, 55940 (Nov. 9, 2018). Although Presidents have 
invoked section 212(f) at least 90 times since 1981, to the 
Departments' knowledge, none of those proclamations were understood 
to affect the right of noncitizens on U.S. soil to apply for, or 
noncitizens' statutory eligibility to receive, asylum. Kelsey Y. 
Santamaria et al., Cong. Rsch. Serv., Presidential Authority to 
Suspend Entry of Aliens Under 8 U.S.C. 1182(f) (updated Feb. 21, 
2024). At the same time, nothing in the proclamations or the INA has 
precluded the Departments from considering as an adverse 
discretionary criterion that a noncitizen is described in a section 
212(f) proclamation.
---------------------------------------------------------------------------

    This authority, though broad, does not authorize the President to 
override the asylum statute.\54\ First enacted in the Refugee Act, the 
asylum statute today provides that ``[a]ny alien who is physically 
present in the United States or who arrives in the United States[,]

[[Page 81164]]

. . . irrespective of such alien's status, may apply for asylum.'' INA 
208(a)(1), 8 U.S.C. 1158(a)(1). The right to apply for asylum thus 
turns on whether a noncitizen is ``physically present'' or has 
``arrive[d] in the United States.'' \55\ Id. As a result, the power 
under section 212(f) to suspend ``entry'' does not authorize the 
President to override the asylum rights of noncitizens who have already 
physically entered the United States and who are entitled to an 
adjudication of eligibility under the applicable statutory and 
regulatory rules and standards.\56\
---------------------------------------------------------------------------

    \54\ The Supreme Court, though it has never squarely addressed 
this issue, has also never indicated that section 212(f) confers 
power to affect asylum rights of those present in the United States. 
Cf., e.g., Sale, 509 U.S. at 164 n.13, 174-77, 187-88 (upholding a 
Coast Guard program of intercepting migrant vessels and returning 
migrants to their home country, authorized in part by section 
212(f), on the basis that statutory rights under the withholding of 
removal statute did not have ``extraterritorial application'' to 
migrants who were not physically present); Hawaii, 585 U.S. at 689, 
695 (assuming, without deciding, that section 212(f) ``does not 
allow the President to expressly override particular provisions of 
the INA[,]'' while emphasizing the particular ``sphere[ ]'' in which 
it operates).
    \55\ Section 212(f) of the INA, 8 U.S.C. 1182(f), contrasts with 
42 U.S.C. 265, which authorizes the Centers for Disease Control and 
Prevention (``CDC'') to temporarily suspend ``the right to introduce 
. . . persons and property'' into the United States if such 
suspension ``is required in the interest of the public health.'' 
During the COVID-19 pandemic and to prevent the ``serious danger of 
the introduction of [the] disease into the United States,'' 42 
U.S.C. 265, the CDC issued a public health Order invoking section 
265 to expel certain noncitizens generally without title 8 
protections, including asylum applications. As the final rule 
implementing section 265 explained, that provision originates in a 
``broad public health statute'' that Congress intended to ``operate[ 
] separately and independently of the immigration power'' and 
authorizes the CDC ``to temporarily suspend the effect of any law[ ] 
. . . by which a person would otherwise have the right to be 
introduced . . . into the U.S.,'' Control of Communicable Diseases; 
Foreign Quarantine: Suspension of the Right To Introduce and 
Prohibition of Introduction of Persons Into United States From 
Designated Foreign Countries or Places for Public Health Purposes, 
85 FR 56424, 56426, 56442 (Sept. 11, 2020), including the 
immigration laws, id. at 56426 (noting that legislative history 
indicates that section 265's predecessor was intended to suspend 
immigration if public health required it). The drafting history of 
section 265 also confirms that Congress conferred authority to 
prohibit ``the introduction of persons'' in order to broaden this 
provision and that this provision subsumed but was not limited to 
the authority to ``suspend immigration[.]'' Br. for Appellants at 
41-43, Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022) (No. 
21-5200); see Huisha-Huisha, 27 F.4th at 730-31 (determining 
plaintiffs not likely to succeed on their challenge to the CDC Order 
on the ground that it improperly suspended migrants' right to apply 
for asylum). Section 265 is a public-health authority under the 
Public Health Service Act. Its grant of authority to allow the CDC 
to temporarily suspend immigration laws in case of a public health 
emergency has no relevance to the interpretation of section 212(f), 
which is in title 8.
    \56\ For similar reasons, section 215(a) of the INA, 8 U.S.C. 
1185(a), which the Proclamation also invokes, does not authorize the 
President to impose the condition and limitation on asylum 
eligibility created by this rule. Cf. United States ex rel. Knauff 
v. Shaughnessy, 338 U.S. 537, 540-47 (1950) (holding that under the 
precursor to section 215(a)(1) of the INA and the presidential 
proclamation and regulations issued pursuant to that provision, 
which during times of national emergency made it unlawful for ``any 
alien to . . . enter or attempt to . . . enter the United States 
except under such reasonable rules, regulations, and orders, and 
subject to such limitations and exceptions as the President shall 
prescribe[,]'' the Attorney General could issue regulations 
governing entry during such an emergency to ``deny [certain 
noncitizens] a hearing . . . in special cases'' notwithstanding the 
ordinary exclusion hearing provisions governing entry). This does 
not mean, however, that the President is prohibited from invoking 
section 215(a) as authority to impose reasonable rules, regulations, 
and orders on asylum applicants and asylees, such as travel document 
requirements for re-entry and departure controls.
---------------------------------------------------------------------------

    This rule, as discussed in the IFR and this preamble, is authorized 
because Congress has conferred upon the Secretary and the Attorney 
General express rulemaking power to create new conditions and 
limitations on asylum eligibility and create certain procedures for 
adjudicating asylum claims. INA 103(a)(1), (a)(3), (g), 8 U.S.C. 
1103(a)(1), (a)(3), (g); INA 208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 
U.S.C. 1158(b)(1)(A), (b)(2)(C), (d)(5)(B); INA 235(b)(1)(B)(iii)(III), 
(iv), 8 U.S.C. 1225(b)(1)(B)(iii)(III), (iv).

C. Changes From the IFR to Final Rule

    The Departments issued the IFR, effective June 5, 2024, adopting 
provisions at 8 CFR 208.13(g), 208.35, 235.15, 1208.13(g), and 1208.35 
that effectuated three key changes to eligibility for asylum and the 
expedited removal process for noncitizens who are encountered at the 
southern border during the emergency border circumstances giving rise 
to the suspension and limitation on entry under the June 3 
Proclamation: (1) adding a limitation on asylum eligibility, subject to 
an exception for exceptionally compelling circumstances, that is 
considered during credible fear screenings in addition to its 
application during adjudications on the merits; (2) rather than asking 
specific questions of every noncitizen encountered and processed for 
expedited removal, providing general notice regarding the process for 
seeking asylum, statutory withholding of removal, or CAT protection and 
referring a noncitizen for a credible fear interview only if the 
noncitizen manifests a fear of return, expresses an intention to apply 
for asylum or protection, or expresses a fear of persecution or torture 
or a fear of return to his or her country or the country of removal; 
and (3) for those found not to have a credible fear of persecution for 
asylum purposes because they could not establish a significant 
possibility that they are not subject to or are exempt from the 
limitation on asylum eligibility, screening for potential eligibility 
for statutory withholding of removal and CAT protection under a 
``reasonable probability'' standard.
    Following careful consideration of public comments received and the 
Departments' experiences implementing the IFR's provisions since early 
June 2024, the Departments have made modifications to the regulatory 
text adopted in the IFR, as described below. The rationale for the 
provisions adopted in the IFR and the reasoning provided in the IFR's 
preamble remain valid, except as distinguished in this regulatory 
preamble.
1. Changes to the IFR's Thresholds
    On September 27, 2024, the President issued a proclamation amending 
the June 3 Proclamation. See Presidential Proclamation of September 27, 
2024, Amending Proclamation 10773 (``September 27 Proclamation''). 
Following the issuance of the IFR, the Departments have closely 
monitored its implementation and results across the southern border. 
The Departments recommended to the President adjustments to the 
Proclamation based on their experiences implementing the Proclamation 
and IFR. Following those recommendations, the President issued the 
September 27 Proclamation, which amended section 2 of the June 3 
Proclamation in two ways. First, section 2(a) of the June 3 
Proclamation provided that the suspension and limitation on entry would 
be discontinued at 12:01 a.m. eastern time on the date that is 14-
calendar-days after the Secretary makes a factual determination that 
there has been a 7-consecutive-calendar-day average of fewer than 1,500 
encounters between POEs. As amended by the September 27 Proclamation, 
the 7-consecutive-calendar-day average must remain below 1,500 
encounters between POEs for 28-consecutive-calendar-days before the 14-
calendar-day waiting period is triggered.\57\ Second, the September 27 
Proclamation deleted section 2(c) of the June 3 Proclamation, which 
provided that UCs \58\ from non-contiguous countries shall not be 
included in calculating the number of encounters for purposes of 
section 2(a) and 2(b) of the June 3 Proclamation.
---------------------------------------------------------------------------

    \57\ As an illustration, for any given day, DHS will calculate 
the average number of encounters for that day and the prior 6 
calendar days i.e., the 7-consecutive-calendar-day average. If that 
average remains below 1,500 for 28 consecutive calendar days, the 
14-day waiting period will begin.
    \58\ In this preamble, as in the Proclamation, the terms 
``unaccompanied children'' or ``UCs'' have the same meaning as the 
term ``unaccompanied alien child[ren]'' under 6 U.S.C. 279(g)(2).
---------------------------------------------------------------------------

    The Departments are implementing changes in this final rule that 
parallel those made in the September 27 Proclamation. Specifically, the 
Departments are revising Sec. Sec.  208.13(g) and 1208.13(g) to refer 
to ``the Presidential Proclamation of June 3, 2024, as defined in 
paragraph (h) of this section.'' Paragraph (h) of each section now 
defines ``Presidential Proclamation of June 3, 2024'' as referring to

[[Page 81165]]

``Proclamation 10773 of June 3, 2024, as amended by the Presidential 
Proclamation of September 27, 2024[ ]'' for the purpose of Sec. Sec.  
208.13(g), 208.35, and 235.15 (in the case of Sec.  208.13(h)) and 
Sec. Sec.  1208.13(g) and 1208.35 (in the case of Sec.  1208.13(h)). 
The Departments are also making conforming changes in Sec. Sec.  
208.35, 235.15, and 1208.35. To ensure that the rule can function even 
if the September 27 Proclamation were rendered inoperative by court 
order, and consistent with the September 27 Proclamation, the 
Departments have also included a severability clause in both Sec. Sec.  
208.13(h) and 1208.13(h).
    The Departments believe that shifting to the 28-consecutive-
calendar-day requirement for this rule, in parallel with the changes 
made in the September 27 Proclamation, is necessary to ensure that the 
rule's measures discontinue only once there has been a durable and 
sustained decrease in encounters at the southern border such that the 
emergency border circumstances have in fact abated. Premature and 
frequent discontinuations of the rule's measures, as discussed below, 
would increase the risk of sizeable and disruptive surges and could 
undermine the message the Departments intend the rule to send, which is 
to discourage noncitizens from utilizing irregular migration and the 
services of smugglers and TCOs to enter the United States. In the IFR, 
the Departments explained that at 1,500 daily encounters between POEs, 
``DHS would be able to swiftly deliver a consequence to enough 
individuals to meaningfully impact migratory decisions and deter 
unlawful entries.'' 89 FR at 48752. The Departments further explained 
that ``[t]he 14-day waiting period prior to a discontinuation provides 
time for the Departments to complete processing of noncitizens 
encountered during emergency border circumstances and to confirm that a 
downward trend in encounters is sustained.'' 89 FR at 48749 n.248. The 
changes made here further both purposes.
    Requiring the 7-consecutive-calendar-day average to remain below 
1,500 encounters for 28 consecutive calendar days instead of one 
calendar day will guard against a circumstance in which the threshold 
for discontinuation is met solely due to a short-term, erratic decrease 
(such as a short-term holiday downturn \59\ or a decrease due to an 
extreme weather event) that does not signal a meaningful reduction in 
overall migration pressures. Such short-term decreases could force the 
provisions of the rule to trigger on and off more frequently, causing 
operational strain while also signaling to migrants that emergency 
border circumstances are so temporal and episodic that the rule's 
measures can be avoided by waiting in Mexico for a short period of 
time--which could lead to a cycle of surges that significantly disrupt 
border processing. Moreover, if the Departments had opted for a 
substantially smaller number of consecutive days, there is a 
significant risk that the rule would deactivate due to a transient drop 
due to holidays, weather, or another cause, which can lead to several 
weeks of uncharacteristically low encounters. At the same time, a 28-
day period is still a short enough period to ensure a timely response 
when an actual, sustained downturn occurs. The Departments have 
therefore decided that 28 days strikes an appropriate balance.
---------------------------------------------------------------------------

    \59\ Short-term decreases that are not associated with changes 
in the fundamental drivers of migration have been especially notable 
during the end-of-year holiday season. From FY 2013 through FY 2024, 
SWB encounters fell by an average of 42 percent in the two weeks 
between December 23 and January 5, only to be followed by an average 
increase of 41 percent in the two weeks between January 5 and 
January 18. See OHSS analysis of July 2024 Persist Dataset (USBP 
Encounters--Holiday Dip tab). Although the January rebound was less 
dramatic in 2023 and 2024, this historic pattern suggests that if 
average encounters heading into the holidays are even as low as the 
mid-2000s--well above the intended threshold for discontinuation of 
emergency circumstances--a short-term decrease could push the 7-day 
average number of encounters below 1,500 even though the fundamental 
drivers of high levels of migration have not changed. A metric based 
on a 7-day average would trigger a discontinuation of emergency 
circumstances in this scenario, but the likely January rebound means 
a 28-day metric would not.
---------------------------------------------------------------------------

    The Departments' experience since the IFR's implementation has 
informed their view that the limited changes made by this rule are 
necessary to provide greater assurance that a decrease is likely to be 
sustained and to guard against costly toggling of the rule when a brief 
decrease proves not to be sustained. For one thing, this experience 
highlights the risk that under an approach that looks only to a 7-
consecutive-calendar-day average, the rule might discontinue even 
though a reduction is unlikely to be sustained. Comparing the week 
ending June 4, 2024, to the week ending August 31, 2024, the 
Departments observed (as expected) a significant decrease in encounters 
at the southern border, but Mexico's government reported a much smaller 
decrease in encounters within Mexico.\60\ This trend suggests that even 
though the IFR has affected incentives for migrants to try to cross the 
U.S. border, migrants continue to travel towards the U.S. border in 
large numbers, and that even if the 7-consecutive-calendar-day average 
dropped below 1,500 encounters, that drop likely would not be sustained 
given the large and growing population of migrants in Mexico who could 
relatively quickly reach the U.S. border. Moreover, if the IFR's 
provisions did deactivate, that large and growing population in Mexico 
would be a ready target for smugglers and TCOs, increasing the risk of 
a surge following a discontinuation that does not reflect a truly 
sustained decrease in migration flows.
---------------------------------------------------------------------------

    \60\ See OHSS analysis of data downloaded from UIP on September 
3, 2024, and data provided by the Government of Mexico as of August 
31, 2024 (Mexican Enforcement tab) (showing that comparing the week 
ending June 4, 2024, to the week ending August 31, 2024, total 
Mexican enforcement apprehensions dropped 19 percent, while total 
U.S. Border Patrol (``USBP'') encounters dropped 48 percent).
---------------------------------------------------------------------------

    Adding this rule's 28-consecutive-day requirement reduces those 
concerns by providing for greater stability. With that change, the 
rule's provisions will not be discontinued unless there has been a 7-
consecutive-calendar-day average of less than 1,500 encounters that is 
sustained over a period of 28 days. The Departments expect that this 
change, coupled with the IFR's 14-day waiting period after the 
Secretary makes the factual determination necessary to discontinue the 
suspension and limitation on asylum eligibility, will reduce any 
perceived incentive to remain close to the U.S.-Mexico border in 
anticipation of a rapid change in policy. Although the Departments 
recognize that this change does not eliminate the risk of the rule 
discontinuing even when regional migration flows remain high, they 
assess that this rule's approach better balances this risk against this 
rule's purpose as an exceptional measure to address emergency border 
circumstances that should not apply when encounters have fallen for a 
sustained period. The Departments further discuss later in this 
subsection why the rule's approach appropriately balances those 
considerations.
    The Departments' concern is also consistent with some of the public 
comments received on the IFR. For instance, one commenter remarked that 
some migrants had concluded that they should congregate near the border 
in preparation for the Proclamation and IFR's measures to discontinue. 
Other commenters expressed concern regarding potential 
misunderstandings about the threshold for discontinuation. Given the 
reality that a surge remains possible, the Departments seek to avoid a 
situation where the emergency

[[Page 81166]]

measures in this rule are discontinued prematurely.
    The Departments note that the existing 14-day waiting period before 
discontinuation once this threshold is reached will continue to help 
the Departments complete processing of noncitizens encountered during 
emergency border circumstances and to confirm that a sustained downward 
trend in encounters has been achieved. See 89 FR at 48749 n.248. At the 
same time, under the prior standard for discontinuation, a rapid shift 
between discontinuing and reactivating the rule's provisions would 
remain possible.\61\ Such a shift would pose significant operational 
challenges.
---------------------------------------------------------------------------

    \61\ From FY 2013 through FY 2019, there were 2,014 days where 
the 7-consecutive-calendar-day average of USBP encounters (including 
encounters of UCs from non-contiguous countries) was below 1,500. 
OHSS analysis of July 2024 Persist Dataset (Trigger Analysis tab). 
Of those 2,014 days, 1,813 days (90 percent of the total) were also 
part of a period of time when the 7-consecutive-calendar-day average 
had remained below 1,500 for 28 consecutive days. Id. Thus, 
considering hypothetical lower-bound thresholds for the period FY 
2013 through FY 2019, switching from the IFR's approach to this 
rule's approach would have reduced the number of below-threshold 
days by only 10 percent. Id. While it is too early in the post-IFR 
period to know the precise reduction in volatility it has brought 
about, requiring the 7-day average to remain below 1,500 encounters 
for 28 consecutive days may have a broadly similar effect.
---------------------------------------------------------------------------

    Experience with the IFR suggests that rapidly switching between the 
rule's provisions discontinuing and reactivating would result in 
harmful operational burdens. For instance, upon implementation of the 
Proclamation and IFR, the Departments had to prioritize processing of 
individuals encountered prior to June 5. Therefore, USBP was unable to 
immediately maximize processing of the desired number of noncitizens 
through expedited removals.\62\ USBP took 6 days to ramp up processing 
for expedited removal under the IFR, from about 60 encounters processed 
under the rule on June 5 to about 1,500 on June 10, which was the first 
day that a majority of encounters were processed for expedited removal 
under the rule.\63\ Similarly, USBP released an average of about 930 
post-June 4 encounters per day between June 5 and June 17, including 8 
days of over 1,000 releases, before releases fell to an average of 
about 510 per day between June 18 and August 31, including an average 
of about 410 per day in August.\64\ And although ICE repatriated 
approximately 38,500 single adults and members of family units from 
June 5 through July 31, 2024, only around 15,400 (40 percent) of them 
were encountered by USBP after June 4, 2024.\65\ The rest were pre-June 
5th USBP SWB encounters and pre- and post-June 5th Office of Field 
Operations (``OFO'') encounters (39 percent) or non-SWB encounters and 
interior enforcement (21 percent).\66\ USCIS did not complete its first 
credible fear interview under the IFR until June 9, 2024, and completed 
an average of about 20 interviews per day for the first two weeks after 
June 4, compared to an average of roughly 330 per day in the month of 
August.\67\ EOIR did not conduct its first review of an adverse 
credible fear determination under the IFR until June 11, 2024, and 
averaged approximately 9 reviews per day in the first 3 weeks after 
June 4 compared to an average of about 90 per day in August.\68\ The 
lag between the rule's activation and the Departments' ability to fully 
avail themselves of the rule's efficiencies means that when the 
provisions of the rule discontinue and then reactivate, the 
Departments' abilities to deliver timely decisions and consequences 
consistent with the rule's purpose may be unnecessarily impaired.
---------------------------------------------------------------------------

    \62\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (IFR Ramp Up tab).
    \63\ Id.
    \64\ Id.
    \65\ OHSS analysis of July 2024 Persist Dataset (IFR Ramp Up 
tab).
    \66\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (IFR Ramp Up tab).
    \67\ Id.
    \68\ Id.
---------------------------------------------------------------------------

    In addition, although the Departments continue to believe that the 
burden of shifting between applying this rule and the Circumvention of 
Lawful Pathways rule is warranted when there has been a sustained 
reduction in irregular migration, such a burden is much harder to 
justify in the context of a short-lived reduction in encounters 
followed by very high levels of encounters. For instance, USCIS 
required time to provide training, procedures, and guidance to the 
field before its staff could process credible fear referrals under the 
IFR. Additionally, EOIR required time to ensure IJs have sufficient 
docket capacity for any increase in credible fear reviews in response 
to any increased number of expedited removal cases. EOIR also required 
time to provide training to IJs who conduct credible fear reviews or 
who adjudicate cases involving individuals who enter the United States 
while the Proclamation and rule are in effect. To be sure, subsequent 
reactivation of the rule's measures will be easier given that the 
Departments' personnel will have become familiar with the rule's 
provisions. Nonetheless, reactivation will always require resources and 
coordination within the workforce necessitating the need to ensure that 
discontinuations and reactivations do not occur with undue 
frequency.\69\
---------------------------------------------------------------------------

    \69\ The Departments acknowledge that they have not made a 
similar change to require 28 consecutive days of a 7-day average of 
encounters above 2,500 for the rule's provisions to be reactivated. 
The absence of a similar requirement prior to reactivation reflects 
the operational exigencies in a circumstance where there has been a 
7-consecutive-calendar-day average of more than 2,500 encounters. 
See 89 FR at 48749 n.248. The Departments have determined that those 
operational exigencies require the rule's provisions to be 
reactivated and outweigh the resources and coordination that 
reactivation requires.
---------------------------------------------------------------------------

    The Departments have also determined that it is appropriate and 
necessary to include UCs from non-contiguous countries in the encounter 
calculations relevant to discontinuing and continuing or reactivating 
the provisions of this rule, in parallel with the changes made in the 
September 27 Proclamation. Under the June 3 Proclamation and the IFR, 
the thresholds for such discontinuation and continuation or 
reactivation did not include encounters of such UCs. But as some 
commenters on the IFR correctly noted, excluding such encounters 
results in an unrealistic assessment of the Departments' resources and 
capabilities. All UCs (regardless of whether they came from a 
contiguous country or a non-contiguous country) require a greater 
proportion of resources to process and hold safely in CBP facilities 
and merit inclusion in the threshold calculations to accurately reflect 
this reality. For example, UCs in CBP custody generally must be 
referred to the Department of Health and Human Services' Office of 
Refugee Resettlement and transferred to its care within 72 hours after 
determining that the noncitizen is a UC, absent exceptional 
circumstances. 8 U.S.C. 1232(b)(3); see also 6 U.S.C. 279. Because of 
this, UCs are generally prioritized for processing in CBP facilities. 
The processing and treatment of UCs also include a number of other 
unique legal and policy requirements, such as conducting a thorough 
screening for trafficking and any claims of fear of return.\70\ During 
their time in custody, UCs receive medical screenings and child-
appropriate activities and humanitarian supplies. They also must 
generally be held separately from unrelated adults, impacting CBP's 
holding capacity. This means that DHS must expend resources to quickly 
process, refer, and transfer UCs to the Office of Refugee 
Resettlement's care. This time-consuming and resource-intensive process 
must always be followed for

[[Page 81167]]

UCs encountered at the southern border, regardless of whether emergency 
border circumstances are present.
---------------------------------------------------------------------------

    \70\ See 8 U.S.C. 1232(a)(2)(A)(ii).
---------------------------------------------------------------------------

    In addition, UCs who are nationals or habitual residents of a 
contiguous country may, in certain circumstances, be permitted to 
withdraw their applications for admission and voluntarily return to 
their respective countries of nationality or habitual residence. See 8 
U.S.C. 1232(a)(2). To determine whether such an outcome is permissible, 
such UCs are screened for indicators of trafficking or credible 
evidence that they are at risk of being trafficked upon return, whether 
they are able to make an independent decision to withdraw their 
applications, and whether they have any fear of return owing to a 
credible fear of persecution. See 8 U.S.C. 1232(a)(2)(A), (a)(4). 
However, as a matter of longstanding policy, CBP screens all UCs--even 
those from non-contiguous countries--in this manner.
    Because one of the primary purposes of the rule is to alleviate 
undue strain on the limited resources of the border security and 
immigration systems, the Departments found that they must consider the 
operational burden that results from all UC encounters at the border. 
That is why UC encounters from all countries, not just from contiguous 
countries, should be considered by the Secretary when making a factual 
determination that average daily encounters at the southern border have 
exceeded or fallen below the requisite thresholds contained in the rule 
and the Proclamation.
    Also informing the Departments' decision to reconsider the IFR's 
approach is that in recent months, encounters of UCs from non-
contiguous countries have grown relative to other encounters. That 
growth, which adds operational burdens separate from those inherent in 
the processing of individuals for expedited removal, increases the 
distorting effects of excluding these UCs. Specifically, the 
Departments had observed from June 2023 through May 2024 that rates of 
encounters of UCs from non-contiguous countries had generally accounted 
for about 6.5 percent of total encounters of all non-contiguous 
nationalities, and comprised about 15 percent of encounters of 
nationals of El Salvador, Guatemala, and Honduras.\71\ However, while 
encounters of UCs from non-contiguous countries have decreased in 
absolute terms since June 2024, such encounters have not decreased in 
proportion with the decreases seen among single adults and individuals 
in family units. Rather, the UCs' share of total non-contiguous 
encounters has increased to 8.9 percent, including 24 percent of all 
encounters of nationals of El Salvador, Guatemala, and Honduras.\72\ As 
a result, the share of total encounters attributable to UCs from non-
contiguous countries increased from 4.6 percent from June 2023 to May 
2024 to 6.4 percent from June 2024 to August 2024, and the share of all 
UCs increased from 6.2 percent to 9.4 percent.\73\
---------------------------------------------------------------------------

    \71\ See OHSS analysis of July 2024 OHSS Persist Dataset and 
data downloaded from UIP on September 3, 2024 (USBP Encounters by 
Fam Status tab).
    \72\ See OHSS analysis of July 2024 OHSS Persist Dataset and 
data downloaded from UIP on September 3, 2024 (USBP Encounters by 
Fam Status tab). While the monthly average single adult encounters 
fell 53 percent between June 2023-May 2024 and June 2024-August 
2024, and the monthly average number of encounters of individuals in 
family units fell 69 percent, encounters of non-contiguous UCs fell 
just 42 percent, and encounters of UCs overall fell just 37 percent. 
Id.
    \73\ OHSS analysis of July 2024 OHSS Persist Dataset and data 
downloaded from UIP on September 3, 2024 (USBP Encounters by Fam 
status tab).
---------------------------------------------------------------------------

    With the two changes just described, the rule will continue to 
serve the purposes that the IFR pursued from the start. First, the rule 
continues to target emergency border circumstances exceeding the 
Departments' capacity to effectively process, detain, and remove, as 
appropriate, the noncitizens encountered; Section III.D.1 of this 
preamble describes why the rule's thresholds continue to reflect those 
circumstances, accounting for the inclusion of UCs from non-contiguous 
countries.
    Second, the rule will continue to deactivate when a decrease in 
encounters means that those emergency border circumstances no longer 
exist. Although the change to require that the 7-consecutive-calendar-
day average must remain below 1,500 encounters for 28 consecutive days 
appropriately ensures that the rule does not deactivate prematurely, 
the rule will continue to deactivate where a decrease is likely to be 
genuinely sustained. Encounter levels are driven by a variety of 
factors, many of which are external to the United States and difficult 
to predict, such as natural disasters, economic changes, and political 
instability. However, the Departments believe, based on past 
experience, that the Departments may experience an average daily 
encounter rate below 1,500 for 28 consecutive days. In fact, from FY 
2013 through FY 2019, the 7-consecutive-calendar-day USBP encounter 
average was below 1,500 encounters for 28 consecutive days 71 percent 
of the time.\74\ Even since the IFR was promulgated, encounters have 
dropped to levels indicating that the threshold in section 2(a) of the 
Proclamation will be met if migration dynamics change for a sustained 
period. If, consistent with the June 3 Proclamation, one excludes UCs 
from non-contiguous countries, the Departments have observed 40 
separate days between June 5, 2024, and August 31, 2024, with 
encounters within 15 percent of 1,500 (i.e., below 1,725).\75\ And if, 
consistent with the September 27 Proclamation, one includes such UCs, 
the Departments have observed 15 such days.\76\ These single-day 
figures suggest that the threshold for discontinuation, as revised, 
will be met if migration dynamics change for a sustained period.
---------------------------------------------------------------------------

    \74\ See OHSS analysis of July 2024 OHSS Persist Dataset 
(Trigger Analysis tab). The Departments rely on data from FY 2013 
through FY 2019 and not data from the pandemic period given the 
unique circumstances dictating migratory trends during the latter 
time.
    \75\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (Section 2c Encounters tab).
    \76\ See id.
---------------------------------------------------------------------------

2. Clarifying Changes to Regulatory Text
    This final rule also makes clarifying changes to the regulatory 
text. In Sec. Sec.  208.35(b)(2) and 1208.35(b)(2)(iii), the 
Departments removed from the definition of ``reasonable probability'' 
the clause: ``that the alien would be persecuted because of his or her 
race, religion, nationality, membership in a particular social group or 
political opinion, or tortured, with respect to the designated country 
or countries of removal.'' The Departments believe that the remaining 
definition of ``reasonable probability''--``substantially more than a 
reasonable possibility, but somewhat less than more likely than not''--
accurately defines the reasonable probability standard. The deleted 
clause describes what the AO or IJ is assessing for rather than what 
the standard means, so it need not be part of the standard's 
definition.
3. Other Technical Changes
    The final rule also implements two technical changes. First, the 
rule replaces the term ``alien'' with ``noncitizen'' where it appears 
in 8 CFR 1208.35. See 8 CFR 1001.1(gg). Second, the rule amends 8 CFR 
208.35(a)(2)(i)(C) and 1208.35(a)(2)(i)(C) as well as the provisions of 
the Circumvention of Lawful Pathways rule at 8 CFR 208.33(a)(3)(i)(C) 
and 1208.33(a)(3)(i)(C) to update the cross-references to the 
definition of ``victim of a severe form of trafficking in persons.'' 
Specifically, the rule replaces the cross-references to 8

[[Page 81168]]

CFR 214.11 with cross-references to 8 CFR 214.201. This change 
recognizes that on August 28, 2024, after the Departments published the 
IFR, DHS's rule Classification for Victims of Severe Forms of 
Trafficking in Persons; Eligibility for ``T'' Nonimmigrant Status, 89 
FR 34864 (Apr. 30, 2024),\77\ became effective, which moved the 
definition of ``victim of a severe form of trafficking in persons'' 
from Sec.  214.11 to Sec.  214.201. See id. at 34931-32.
---------------------------------------------------------------------------

    \77\ See also 89 FR 68081 (Aug. 23, 2024) (making corrections).
---------------------------------------------------------------------------

D. Rule Provisions

    The rule contains the following key provisions:
    <bullet> The rule applies to certain individuals who seek asylum, 
statutory withholding of removal, or CAT protection during emergency 
border circumstances giving rise to this rule and to the suspension and 
limitation on entry under the June 3 Proclamation, as amended by the 
September 27 Proclamation. See 8 CFR 208.13(g), 208.35, 235.15, 
1208.13(g), 1208.35.
    <bullet> The rule establishes that those who enter across the 
southern border during emergency border circumstances and who are not 
described in section 3(b) of the June 3 Proclamation will be ineligible 
for asylum unless they demonstrate by a preponderance of the evidence 
that exceptionally compelling circumstances exist, including if the 
noncitizen demonstrates that they or a member of their family as 
described in 8 CFR 208.30(c) with whom they are traveling: (1) faced an 
acute medical emergency; (2) faced an imminent and extreme threat to 
life or safety, such as an imminent threat of rape, kidnapping, 
torture, or murder; or (3) satisfied the definition of ``victim of a 
severe form of trafficking in persons'' provided in 8 CFR 214.201. See 
8 CFR 208.13(g), 208.35(a), 1208.13(g), 1208.35(a). Exceptionally 
compelling circumstances may also be established for noncitizens in 
section 240 removal proceedings or the asylum merits interview 
(``AMI'') process under specified conditions to ensure family unity. 
See 8 CFR 208.35(c), 1208.35(c).
    <bullet> The rule also establishes that, during emergency border 
circumstances, rather than asking specific questions of every 
noncitizen encountered and processed for expedited removal to elicit 
whether the noncitizen may have a fear of persecution or an intent to 
apply for asylum, for those who enter across the southern border and 
are not described in section 3(b) of the June 3 Proclamation, DHS will 
provide general notice regarding the process for seeking asylum, 
statutory withholding of removal, and protection under the CAT and will 
refer a noncitizen for a credible fear interview only if the noncitizen 
manifests a fear of return, expresses an intention to apply for asylum 
or protection, or expresses a fear of persecution or torture or a fear 
of return to their country or the country of removal. See 8 CFR 235.15.
    <bullet> The limitation on asylum eligibility will be applied 
during credible fear interviews and reviews, and those who enter across 
the southern border during emergency border circumstances and are not 
described in section 3(b) of the June 3 Proclamation will receive a 
negative credible fear determination with respect to their asylum claim 
unless there is a significant possibility that the noncitizen would 
ultimately be able to demonstrate by a preponderance of the evidence 
that the limitation does not apply or that they meet an exception. Such 
noncitizens will thereafter be screened for a reasonable probability of 
persecution because of a protected ground or torture, a higher standard 
than that applied to noncitizens in a similar posture under the 
Circumvention of Lawful Pathways rule. The ``reasonable probability'' 
standard is defined to mean substantially more than a ``reasonable 
possibility'' but somewhat less than more likely than not. 8 CFR 
208.35(b), 1208.35(b).

E. Severability

    As stated in 8 CFR 208.13(h), 208.35(b)(3), 208.35(e), 235.15(g), 
1208.13(h), 1208.35(b)(4), and 1208.35(e), the Departments intend for 
the provisions of the rule to be severable from each other and to be 
given effect to the maximum extent possible, such that if a court holds 
that any provision is invalid or unenforceable as to a particular 
person or circumstance, the other provisions will remain in effect as 
to any other person or circumstance.\78\ See 89 FR at 48757-59. During 
emergency border circumstances, the Departments' abilities to refer and 
safely process noncitizens through expedited removal is overwhelmed and 
prevents the border security and immigration systems from delivering 
timely decisions and consequences to noncitizens arriving at the 
southern border. See 89 FR at 48714. Consequently, each provision of 
the rule is designed to function sensibly without the others, and the 
Departments intend for them to be severable so that each can operate 
independently.
---------------------------------------------------------------------------

    \78\ Courts have uniformly held that the Administrative 
Procedure Act (``APA''), 5 U.S.C. 706(2), authorizes courts to sever 
and set aside ``only the offending parts of the rule.'' Carlson v. 
Postal Regulatory Comm'n, 938 F.3d 337, 351 (D.C. Cir. 2019); see, 
e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988).
---------------------------------------------------------------------------

    For example, the Departments intend for the ``reasonable 
probability'' screening standard to be used--even in the absence of a 
limitation on asylum eligibility, the manifestation of fear procedures, 
or the Proclamation--to screen for statutory withholding of removal and 
CAT protection claims if a noncitizen was otherwise unable to establish 
a credible fear of persecution for asylum purposes due to the Lawful 
Pathways rebuttable presumption. 8 CFR 208.35(b)(3), 1208.35(b)(4); see 
8 CFR 208.35(b)(2), (e), 1208.35(b)(2), (e), 235.15(g); 89 FR at 48757. 
That approach ensures that, during emergency border circumstances, the 
Departments will continue to be able to benefit from the higher 
screening standard, even without the limitation on asylum eligibility 
this rule adopts.
    To maintain operational flexibility, DHS similarly intends for 
manifestation of fear procedures under 8 CFR 235.15 to remain in 
effect, even without a limitation on asylum eligibility, the reasonable 
probability standard, or the Proclamation. See 8 CFR 235.15(g). As with 
the reasonable probability standard, allowing for the continued use of 
the manifestation of fear provisions absent the other portions of the 
rule or Proclamation ensures that such a tool remains available to the 
Departments during emergency border circumstances.
    Finally, the Departments intend for the limitation on asylum 
eligibility to be severable from the manifestation of fear procedures, 
the reasonable probability standard, and the Proclamation because the 
limitation on asylum eligibility operates independently of those 
provisions and the Proclamation, and in the absence of those tools 
would likewise continue to be an important tool for addressing 
emergency border circumstances at the southern border. See 8 CFR 
208.35(e), 1208.35(e).

III. Public Comments and Responses

    The Departments received 1,067 comments on the IFR, the majority of 
which expressed opposition. A range of governmental and non-
governmental entities, public officials, and private persons submitted 
comments. The Departments summarize and respond to the public comments 
below.

A. Legal Authority and Background

1. Legality Concerns
a. General Comments on Domestic Law
    Comment: Commenters asserted that the rule violates domestic law 
and

[[Page 81169]]

emphasized that U.S. law allows noncitizens to apply for asylum 
regardless of where they entered the United States. Some commenters 
described a fundamental right to apply for asylum for anyone inside the 
United States and stated that analysis of an asylum application should 
focus on the applicant's reasonable fear of persecution rather than 
manner of entry, criticizing what a commenter characterized as a 
categorical exclusion of those ``apprehended between ports of entry 
from asylum eligibility, barring narrow exceptions.'' Commenters 
asserted that entering the United States either through a POE or across 
the southern border between POEs and asking for asylum constitutes a 
``lawful pathway.'' Other commenters stated that the Departments should 
not and cannot categorically deny asylum for reasons unrelated to the 
merits of the claim itself. One commenter claimed that the rule 
effectively closes the border and asserted that closing the border is 
unconstitutional.
    Although some commenters agreed that the rule is within the scope 
of the Departments' authority and is consistent with the INA, other 
commenters claimed that the rule would violate the Refugee Act of 1980 
and the INA, specifically section 208 of the INA, 8 U.S.C. 1158. 
Commenters claimed that the rule conflicts with the plain language of 
these provisions, which permit a noncitizen ``physically present in the 
United States'' to apply for asylum. Refugee Act of 1980, 94 Stat. at 
105; INA 208(a)(1), 8 U.S.C. 1158(a)(1). Commenters asserted that the 
INA does not require those seeking protection to apply before entering 
or at a POE or to schedule an appointment through a website or app in 
order to make an application, but instead allows applications from 
anywhere along the border. Commenters also stated that, although 
Congress gave the Attorney General and the Secretary authority to 
impose additional limitations on asylum eligibility, such limitations 
must be consistent with legislation and congressional intent. Along the 
same lines, a commenter stated that the IFR undermines the separation 
of powers between Congress and the Executive Branch because it is 
Congress, not the Executive Branch, that enacts laws, and the IFR 
rewrites the INA.
    Response: The Departments disagree that this rule is inconsistent 
with U.S. law or congressional intent. The rule does not effectively 
close the border, require the Departments to turn away migrants at the 
southern border, or categorically deny all asylum applications filed by 
noncitizens who enter the United States across the southern border. Nor 
does the rule prohibit any noncitizen from seeking protection solely 
because of the manner or location of their entry into the United 
States. Rather, the rule is a limitation on asylum eligibility, as 
authorized by sections 208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C. 
1158(b)(2)(C) and (d)(5)(B), and the Departments' other discretionary 
authorities, e.g., sections 103(a)(3), (g)(2), and 208(b)(1)(A) of the 
INA, 8 U.S.C. 1103(a)(3), (g)(2), and 1158(b)(1)(A). Given these 
authorities for the Departments to act, the Departments disagree that 
the IFR (or the final rule) violates the principle of separation of 
powers.
    The rule's limitation on asylum eligibility does not prevent anyone 
from pursuing a claim for asylum, nor does it categorically foreclose 
eligibility for asylum. The Departments have authority to impose 
limitations on asylum eligibility. As explained above, the INA 
authorizes the Secretary and the Attorney General to establish, by 
regulation, ``additional limitations and conditions, consistent with'' 
section 208, under which a noncitizen ``shall be ineligible for 
asylum.'' INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C); see also INA 
208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B) (authorizing the Secretary and the 
Attorney General to ``provide by regulation for any other conditions or 
limitations on the consideration of an application for asylum not 
inconsistent with [the INA]''). And section 208(b)(1)(A) of the INA, 8 
U.S.C. 1158(b)(1)(A), authorizes the Secretary or the Attorney General 
to grant asylum in their discretion. The INA also provides the 
Secretary and the Attorney General authority to publish regulations 
governing their respective roles regarding apprehension, inspection and 
admission, detention and removal, withholding of removal, deferral of 
removal, and release of noncitizens encountered in the interior of the 
United States or at or between POEs. See INA 103(a)(3), (g)(2), 
235(b)(1)(B)(iii)(III), (B)(iv), (C), 241(a)(3), (d)(2)(B), 8 U.S.C. 
1103(a)(3), (g)(2), 1225(b)(1)(B)(iii)(III), (B)(iv), (C), 1231(a)(3), 
(d)(2)(B); see also INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A).
    Consistent with these authorities, the Departments have promulgated 
other limitations or conditions on asylum eligibility, including some 
provisions that Congress later adopted and codified in the INA. See 
Aliens and Nationality; Refugee and Asylum Procedures, 45 FR 37392, 
37392 (June 2, 1980) (imposing firm resettlement bar); Aliens and 
Nationality; Asylum and Withholding of Deportation Procedures, 55 FR 
30674, 30678, 30683 (July 27, 1990) (promulgating 8 CFR 208.14(c) 
(1990), which provided for mandatory regulatory bars to asylum for 
those convicted in the United States of a particularly serious crime or 
those who constitute a danger to the security of the United States 
while retaining a prior regulatory bar to asylum for noncitizens who 
were firmly resettled in a third country prior to arriving in the 
United States); Asylum Procedures, 65 FR 76121, 76134 (Dec. 6, 2000) 
(providing that an applicant does not have a well-founded fear of 
persecution if they could avoid persecution by internally relocating); 
see also, e.g., Afriyie v. Holder, 613 F.3d 924, 934-36 (9th Cir. 2010) 
(discussing internal relocation), overruled on other grounds by 
Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc); 
Yang v. INS, 79 F.3d 932, 935-36 (9th Cir. 1996) (holding that the 
regulatory firm resettlement limitation was a permissible exercise of 
the Attorney General's authority under the asylum statute). Restraining 
the Departments' authority to promulgate additional limitations and 
conditions on the ability to establish eligibility for asylum 
consistent with section 208 of the INA, 8 U.S.C. 1158, would be 
contrary to Congress' intent that the Departments' only constraint be 
that additional limitations and conditions are consistent with section 
208, 8 U.S.C. 1158, and ``this chapter.'' INA 208(b)(2)(C), (d)(5)(B), 
8 U.S.C. 1158(b)(2)(C), (d)(5)(B); see also DHS v. Thuraissigiam, 591 
U.S. 103, 112 (2020) (recognizing that the ``theme'' of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 
(``IIRIRA'') ``was to protect the Executive's discretion from undue 
interference by the courts'' (alteration and internal quotation marks 
omitted)); R-S-C v. Sessions, 869 F.3d 1176, 1187 (10th Cir. 2017) 
(reasoning that the ``delegation of authority'' in section 208(b)(2)(C) 
of the INA, 8 U.S.C. 1158(b)(2)(C), ``means that Congress was prepared 
to accept administrative dilution'' of section 208(a)(1) of the INA, 8 
U.S.C. 1158(a)(1)); INS v. Cardoza-Fonseca, 480 U.S. 421, 444-45 
(1987); Circumvention of Lawful Pathways, 88 FR 11704, 11740 (Feb. 23, 
2023).
    The rule is within the scope of the Departments' authority and does 
not conflict with the statutory requirement that noncitizens 
``physically present in the United States'' be permitted to apply for 
asylum because it adds a limitation on asylum eligibility as permitted 
under section 208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C. 
1158(b)(2)(C) and

[[Page 81170]]

(d)(5)(B). The limitation is not a sweeping categorical bar that would 
preclude a grant of asylum solely based on manner of entry, which some 
courts have found to conflict with section 208(a)(1) of the INA, 8 
U.S.C. 1158(a)(1). E.g., East Bay Sanctuary Covenant v. Biden (East Bay 
III), 993 F.3d 640, 669-70 (9th Cir. 2021) (concluding that a prior 
regulation that enacted a bar on asylum eligibility for those who 
entered the United States between designated POEs was ``effectively a 
categorical ban'' on migrants based on their method of entering the 
United States, in conflict with section 208(a)(1) of the INA, 8 U.S.C. 
1158(a)(1)).
    Under this rule--and contrary to commenter assertions--manner of 
entry alone is never dispositive. Rather, the rule's limitation on 
asylum eligibility does not apply if a noncitizen establishes that 
exceptionally compelling circumstances exist. See 8 CFR 
208.35(a)(2)(i), 1208.35(a)(2)(i). The rule provides that such 
exceptionally compelling circumstances include where the noncitizen, or 
a family member with whom they are traveling, faced an acute medical 
emergency; faced an imminent and extreme threat to life or safety, such 
as an imminent threat of rape, kidnapping, torture, or murder; or was a 
victim of a severe form of trafficking in persons. 8 CFR 
208.35(a)(2)(i), 1208.35(a)(2)(i).
    Specifically, the limitation at issue here turns on whether--during 
the emergency border circumstances described in the Proclamation and 
this rule--an individual has followed the lawful, safe, and orderly 
pathways that the United States Government has established, or shown 
exceptionally compelling circumstances, when it is essential that 
noncitizens use such pathways to ensure the Government's ability to 
manage the border.
    Limitations and conditions on asylum eligibility do not need to 
directly relate to whether a noncitizen satisfies the definition of a 
``refugee'' within the meaning of section 101(a)(42)(A) of the INA, 8 
U.S.C. 1101(a)(42)(A), but instead can embrace policy considerations 
that justify a finding of ineligibility. See, e.g., Zheng v. Mukasey, 
509 F.3d 869, 871 (8th Cir. 2007) (noting that IIRIRA included several 
provisions, including the one-year bar, ``intended to reduce delays and 
curb perceived abuses in removal proceedings''); Ali v. Reno, 237 F.3d 
591, 594 (6th Cir. 2001) (recognizing that asylum law ``was never 
intended to open the United States to refugees who had found shelter in 
another nation and had begun to build new lives'' (internal quotation 
marks and citation omitted)); Matter of Negusie, 28 I&N Dec. 120, 125 
(A.G. 2020) (discussing the persecutor bar, and noting that Congress 
intended to make ``certain forms of immigration relief,'' including 
asylum, ``unavailable to persecutors''), stayed by Matter of Negusie, 
28 I&N Dec. 399, 399 (A.G. 2021); Singh v. Nelson, 623 F. Supp. 545, 
556 (S.D.N.Y. 1985) (``[A]ttempting to discourage people from entering 
the United States without permission . . . provides a rational basis 
for distinguishing among categories'' of noncitizens who are not 
lawfully present.).
    In sum, as with other conditions and limitations imposed by section 
208(b)(2) of the INA, 8 U.S.C. 1158(b)(2), this rule is grounded in 
important policy objectives, including providing those with meritorious 
asylum claims an opportunity to have their claims heard in a timely 
fashion, preventing an increased flow of migrants arriving at the 
southern border that will overwhelm the Departments' ability to provide 
safe and orderly processing, and reducing the role of exploitative TCOs 
and smugglers. In seeking to enhance the overall functioning of the 
immigration system and to improve processing of asylum applications, 
the Departments are, in the exercise of their authority to promulgate 
limitations on asylum eligibility and in recognition of the limited 
resources provided by Congress, electing to implement a limitation on 
asylum eligibility that places greater weight on manner of entry. This 
limitation on asylum eligibility is expected to disincentivize 
irregular migration by those unlikely to establish exceptionally 
compelling circumstances during times when encounters exceed certain 
benchmarks and therefore challenge the Departments' ability to swiftly 
process single adults and individuals in family units encountered by 
USBP at the SWB through expedited removal. See Section II.A.2 of this 
preamble for further discussion of the Departments' experience with the 
IFR.
    Comment: Commenters claim that the rule violates the principles of 
non-refoulement and nondiscrimination in the Refugee Act and other U.S. 
laws. Some commenters claimed the rule conflicts with congressional 
intent to create a uniform procedure for noncitizens applying for 
asylum regardless of manner of entry.
    Response: The Departments disagree that the rule conflicts with 
U.S. law or congressional intent. The rule does not violate the 
principles of non-refoulement and nondiscrimination. And the rule does 
not conflict with what commenters describe as a congressional intent to 
create a uniform procedure for noncitizens applying for asylum. See 
Cazun v. Att'y Gen. U.S., 856 F.3d 249, 258 (3d Cir. 2017). The 
Departments may create additional substantive limitations and 
conditions on asylum eligibility--as Congress itself has done, and as 
Congress expressly authorized the Departments to do. INA 208(b)(2)(A), 
(b)(2)(C), 8 U.S.C. 1158(b)(2)(A), (b)(2)(C). Moreover, all noncitizens 
to whom the rule applies are subject to the same procedures for 
adjudicating their asylum claims as those who are not subject to the 
rule. The United States has implemented its non-refoulement obligations 
through section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3) (which is 
referred to as statutory withholding of removal) and the regulations 
implementing U.S. obligations under Article 3 of the CAT at 8 CFR 
208.16(c), 208.17, 208.18, 1208.16(c), 1208.17, and 1208.18. The INA's 
provision in section 208, 8 U.S.C. 1158, for the discretionary granting 
of asylum instead aligns with Article 34 of the Refugee Convention, 
which is precatory and does not require any signatory to actually grant 
asylum to all those who are eligible. See, e.g., Cardoza-Fonseca, 480 
U.S. at 441.
    Comment: Commenters asserted that, under Matter of Pula, 19 I&N 
Dec. 467 (BIA 1987), manner of entry may not be the dispositive factor 
in deciding whether a noncitizen is eligible for asylum. Similarly, 
commenters argued that Matter of Pula is binding precedent and 
precludes consideration of manner of entry over all other factors. A 
commenter claimed that manner of entry can only be considered in 
determining whether a noncitizen merits asylum as a matter of 
discretion and not in determining whether the noncitizen is eligible 
for asylum.
    Response: The rule is consistent with historical consideration of 
manner of entry as a relevant factor in considering whether to grant 
asylum as a matter of discretion. In Matter of Pula, the BIA 
identified--as relevant factors as to whether a noncitizen warrants the 
favorable exercise of discretion in granting asylum--the noncitizen's 
``circumvention of orderly refugee procedures,'' including their 
``manner of entry or attempted entry''; whether they ``passed through 
any other countries or arrived in the United States directly''; 
``whether orderly refugee procedures were in fact available to help'' 
in any transit countries; and whether they ``made any attempts to seek 
asylum before coming to the United States.'' 19 I&N Dec. at 473-74. The 
BIA explained that section 208(a) of the INA, 8 U.S.C. 1158(a), 
required the Attorney General to establish procedures for adjudicating

[[Page 81171]]

applications filed by any noncitizen, ``irrespective of such alien's 
status,'' but the BIA did not preclude consideration of the manner of 
entry in assessing whether to grant asylum. Id. at 473. The BIA also 
stated that while the manner of entry could ``be a serious adverse 
factor, . . . it should not be considered in such a way that the 
practical effect is to deny relief in virtually all cases.'' Id. at 
473. The BIA cautioned against placing ``too much emphasis on the 
circumvention of orderly refugee procedures'' as ``the danger of 
persecution should generally outweigh all but the most egregious of 
adverse factors.'' Id. at 473-74.
    While the Departments acknowledge that the rule places greater 
weight on manner of entry under certain emergency circumstances, this 
decades-old precedent establishes that the Departments can permissibly 
take into account manner of entry. Both how much weight to place on 
that factor and whether to do so in weighing asylum eligibility fall 
well within the broad discretion conferred on the Departments by 
section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C). Cf. Lopez v. 
Davis, 531 U.S. 230, 243-44 (2001) (government can rely on rulemaking 
to ``resolve certain issues of general applicability unless Congress 
clearly expresses an intent to withhold that authority'' (quoting Am. 
Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991)); Reno v. Flores, 507 
U.S. 292, 313 (1993) (noting that INS need not ``forswear use of 
reasonable presumptions and generic rules'' even where the statute 
``requires some level of individualized determination'' (citations and 
quotation marks omitted)).
    Under this rule, manner of entry, standing alone, is never 
dispositive. Rather, the limitation at issue here turns on whether--
during the emergency border circumstances described in the Proclamation 
and this rule--an individual has followed the lawful, safe, and orderly 
pathways that the United States has established when it is essential 
that noncitizens use such pathways to ensure the United States' ability 
to manage the border. And even during these situations, the rule's 
limitation on asylum eligibility does not apply if a noncitizen 
establishes that exceptionally compelling circumstances exist. See 8 
CFR 208.35(a)(2)(i), 1208.35(a)(2)(i). The rule provides that such 
exceptionally compelling circumstances include where the noncitizen, or 
a family member with whom they are traveling, faced an acute medical 
emergency; faced an imminent and extreme threat to life or safety, such 
as an imminent threat of rape, kidnapping, torture, or murder; or was a 
victim of a severe form of trafficking in persons. 8 CFR 
208.35(a)(2)(i), 1208.35(a)(2)(i).
    In line with Matter of Pula, then, the rule considers factors other 
than manner of entry. And, like Matter of Pula, this rule provides for 
consideration of manner of entry in assessing eligibility for some 
asylum seekers in ``a way that the practical effect is'' not ``to deny 
relief in virtually all cases.'' 19 I&N Dec. at 473. Rather, the manner 
of entry reduces the availability of relief only in limited 
circumstances--during emergency border circumstances described in the 
Proclamation and this rule--and only for those unable to establish 
exceptionally compelling circumstances.
    The Departments also recognize that the specific analysis discussed 
in Matter of Pula (considering manner of entry in the discretionary 
decision of whether to grant asylum) is distinct from how this rule 
considers manner of entry (as part of provisions governing asylum 
eligibility). See 19 I&N Dec. at 472. The Departments, in exercising 
their broad discretion to issue regulations adopting additional 
limitations on asylum eligibility, are not bound to consider manner of 
entry only as a factor contributing to whether a particular noncitizen 
warrants a favorable exercise of discretion. While Matter of Pula 
allows manner of entry to be one factor in the consideration of whether 
a noncitizen merits a grant of asylum as a matter of discretion, it 
does not purport to restrict the Departments from considering a 
noncitizen's manner of entry in assessing eligibility. Id. at 473-74.
    Moreover, while Matter of Pula considered manner of entry for 
purposes of a discretionary grant whereas the rule considers manner of 
entry as a limitation on asylum eligibility, adjudicators are not 
precluded from considering the same facts when evaluating both 
eligibility and discretion. Indeed, it is possible for a single fact to 
be relevant to both determinations. See Kankamalage v. INS, 335 F.3d 
858, 864 (9th Cir. 2003) (concluding that a conviction did not render a 
noncitizen ineligible for asylum, but stating that the Board was ``not 
prohibited from taking into account Kankamalage's robbery conviction 
when it decides whether or not to grant asylum as a matter of 
discretion''); Matter of Jean, 23 I&N Dec. 373, 385 (A.G. 2002) 
(concluding that even a noncitizen who ``qualifies as a `refugee' '' 
and whose criminal conviction did ``not preclude her eligibility'' for 
asylum could nevertheless be ``manifestly unfit for a discretionary 
grant of relief'').
    The Departments conclude that this rule does not conflict with 
Matter of Pula, which remains the applicable standard for discretionary 
determinations in the absence of a regulation that otherwise governs 
the discretionary determination. See, e.g., Thamotar v. U.S. Att'y 
Gen., 1 F.4th 958, 970-71 (11th Cir. 2021) (observing that 
discretionary asylum determinations continue to be governed by Matter 
of Pula); Hussam F. v. Sessions, 897 F.3d 707, 718 (6th Cir. 2018) 
(stating that ``circumvention [of proper immigration procedures] may be 
taken into account as a `serious adverse factor''' (quoting Matter of 
Pula, 19 I&N Dec. at 473)); see also Andriasian v. INS, 180 F.3d 1033, 
1043-44 (9th Cir. 1999) (finding that reliance on certain Matter of 
Pula factors was inappropriate once regulations controlling 
discretionary denials of asylum on the basis of a petitioner's stay or 
opportunity to stay in a third country had been promulgated). And the 
Departments view Matter of Pula as providing support for the 
proposition that it is lawful to consider manner of entry for asylum 
applicants.
b. Statutory Conditions and Limitations on Asylum Eligibility
    Comment: Commenters stated that the rule would be inconsistent with 
or would otherwise render superfluous the statutory firm-resettlement 
bar and safe-third-country bar. See INA 208(b)(2)(A)(vi), 8 U.S.C. 
1158(b)(2)(A)(vi); INA 208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A).
    Response: This rule is within the Departments' broad authority to 
create new limitations on asylum eligibility, and the Departments 
disagree that the rule conflicts with any of the exceptions to a 
noncitizen's ability to apply for asylum or limitations on a 
noncitizen's eligibility for a grant of asylum under section 208(a)(2) 
or (b)(2) of the INA, 8 U.S.C. 1158(a)(2) or (b)(2).
    The INA's firm-resettlement provision precludes a noncitizen who 
``was firmly resettled in another country prior to arriving in the 
United States'' from demonstrating eligibility for asylum. INA 
208(b)(2)(A)(vi), 8 U.S.C. 1158(b)(2)(A)(vi); see also 8 CFR 208.15, 
1208.15 (2020).\79\ The INA's safe-third-

[[Page 81172]]

country provision prohibits a noncitizen from applying for asylum if 
the noncitizen ``may be removed, pursuant to a bilateral or 
multilateral agreement'' to a safe third country in which the 
noncitizen would not be subject to persecution and ``would have access 
to a full and fair procedure for determining a claim to asylum or 
equivalent temporary protection.'' INA 208(a)(2)(A), 8 U.S.C. 
1158(a)(2)(A).
---------------------------------------------------------------------------

    \79\ These regulations were amended by Procedures for Asylum and 
Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 
FR 80274 (Dec. 11, 2020), but the amendments were preliminarily 
enjoined. See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 
512 F. Supp. 3d 966, 969 (N.D. Cal. 2021). This order remains in 
effect, and thus the 2020 version of these provisions--the version 
immediately preceding the enjoined amendment--is currently 
effective.
---------------------------------------------------------------------------

    The rule does not conflict with or otherwise render the firm-
resettlement bar or safe-third-country bar superfluous; instead, this 
rule and the statutory bars apply independently.
    First, this rule has a different scope. In contrast to those 
statutory bars, this limitation on asylum eligibility only applies to 
those who enter the United States during emergency border 
circumstances. See 8 CFR 208.35(a)(1), 1208.35(a)(1). Additionally, 
unlike those who are subject to the firm-resettlement or safe-third-
country bars, those who are subject to this limitation on asylum 
eligibility are not categorically barred from applying for asylum or 
from being eligible for asylum, as application of the rule's limitation 
on asylum eligibility will be considered on a case-by-case basis, 
including to determine if exceptional circumstances apply to overcome 
this limitation.
    The rule also serves a different purpose than those statutory bars. 
The INA's firm resettlement and safe-third-country provisions limit 
asylum eligibility and applications, respectively, for noncitizens who 
have available sustained protection in another country, and they help 
protect against forum shopping. See Rosenberg v. Yee Chien Woo, 402 
U.S. 49, 55-56 (1971) (noting that the concept of firm resettlement is 
historically rooted in the notion of providing ``a haven for the 
world's homeless people'' while encouraging ``other nations to do 
likewise''); see also Maharaj v. Gonzales, 450 F.3d 961, 988-89 (9th 
Cir. 2006) (en banc) (O'Scannlain, J., concurring in part and 
dissenting in part) (recognizing that the firm-resettlement provision 
protects against forum shopping, an issue ``that our immigration laws 
have long sought to avoid''). The limitation on asylum eligibility 
adopted in this rule, by contrast, seeks to streamline the Departments' 
processing of noncitizens while upholding all screening and protection 
requirements, thereby conserving limited resources during the emergency 
border circumstances described in the Proclamation and this rule and 
allowing for enough resources to continue to process lawful cross-
border trade and travel and noncitizens who present in a safe and 
orderly manner at a POE. The rule is also designed to encourage 
noncitizens to use lawful, safe, and orderly pathways to the United 
States during emergency border circumstances or to wait until such 
circumstances have abated, to the extent possible. Thus, the limitation 
has a different object and purpose, and it is consistent with those 
statutory provisions.
    Moreover, the INA permits the Attorney General and the Secretary to 
create new eligibility limitations and does not limit this authority 
from overlapping with existing statutory conditions. See R-S-C, 869 
F.3d at 1187 (noting that Congress's delegation of authority in section 
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), ``means that Congress 
was prepared to accept administrative dilution'' of the right to seek 
asylum); cf. Hawaii, 585 U.S. at 690-91 (recognizing that the existence 
of the Visa Waiver Program ``did not implicitly foreclose the Executive 
from imposing tighter restrictions'' in ``similar'' areas).
    Indeed, section 208(b)(2)(C) and (d)(5)(B) of the INA, 8 U.S.C. 
1158(b)(2)(C) and (d)(5)(B), provide no subject-matter limit other than 
requiring any regulation be ``consistent with'' section 208 of the INA, 
8 U.S.C. 1158, and the INA generally. See R-S-C, 869 F.3d at 1187 n.9. 
The limitation on asylum eligibility established by this rule is 
consistent with section 208 of the INA, 8 U.S.C. 1158, as a whole, and 
the INA generally, and it is consistent with the firm-resettlement and 
safe-third-country bars in particular.
c. Expedited Removal
    Comment: Several commenters claimed that the rule conflicts with 
the expedited removal process created by Congress in IIRIRA. Commenters 
noted that the statutory framework provides for preliminary screening 
of noncitizens in credible fear interviews, where noncitizens may apply 
for asylum after demonstrating a ``significant possibility'' that the 
noncitizen could establish eligibility for asylum. In this regard, one 
commenter asserted that Congress had intended the ``significant 
possibility'' standard to be a ``low screening standard,'' but that the 
IFR ``would convert the preliminary screening into a full 
adjudication'' of whether the IFR applied and would eliminate the 
``significant possibility'' standard ``entirely for all asylum seekers 
covered[,] . . . forc[ing] them to meet an even higher `reasonable 
probability' standard.'' Commenters asserted that the rule's 
requirement that noncitizens instead show a ``reasonable probability'' 
of persecution or torture is in conflict with this statutory framework. 
Commenters further asserted that the rule effectively creates a new 
legal framework by which to evaluate asylum claims in conflict with the 
statutory process. One commenter claimed that the rule unlawfully shuts 
down the U.S. asylum system.
    Response: The Departments disagree that the rule conflicts with the 
expedited removal process created by Congress. The expedited removal 
process is applicable to certain noncitizens arriving in the United 
States (and, in the discretion of the Secretary, certain other 
designated classes of noncitizens) who are found to be inadmissible 
under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), 
which renders inadmissible noncitizens who make certain material 
misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C. 
1182(a)(7), which renders inadmissible noncitizens who lack 
documentation required for admission. INA 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i). Upon being subject to expedited removal, such 
noncitizens may be ``removed from the United States without further 
hearing or review unless the alien indicates either an intention to 
apply for asylum . . . or a fear of persecution.'' Id.
    Congress created a screening process, known as ``credible fear'' 
screening, to identify potentially valid claims for asylum by 
noncitizens in expedited removal proceedings. See INA 235(b)(1)(A)(ii), 
(B), 8 U.S.C. 1225(b)(1)(A)(ii), (B). But Congress has not provided for 
such a screening for statutory withholding of removal or CAT 
protection. In the absence of a statutory process for screening for 
potential eligibility for statutory withholding of removal and CAT 
protection, the Departments have also used the credible fear screening 
process to identify potentially valid claims for such protection. See 
generally 8 CFR 208.30, 1003.42, 1208.30 (providing for screenings for 
potential eligibility for statutory withholding of removal and CAT 
protection alongside screening for potential asylum eligibility). If a 
noncitizen indicates a fear of persecution or torture, a fear of 
return, or an intention to apply for asylum during the course of the 
expedited removal process, DHS refers the noncitizen to an AO to 
determine whether the noncitizen has a credible fear of persecution or 
torture in the

[[Page 81173]]

country of nationality or removal. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 
1225(b)(1)(A)(ii), (B); see also 8 CFR 208.30(e)(2), 235.3(b)(4); id. 
208.13(b)(1)-(2), 1208.13(b)(1)-(2) (defining the grounds for asylum 
eligibility); id. 208.16(b)-(c), 1208.16(b)-(c) (defining the grounds 
for statutory withholding of removal and CAT protection). A noncitizen 
has a ``credible fear of persecution'' if ``there is a significant 
possibility, taking into account the credibility of the statements made 
by the alien in support of the alien's claim and such other facts as 
are known to the officer, that the alien could establish eligibility 
for asylum.'' INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v).
    Just as the statute is silent on the availability of screening 
procedures for statutory withholding of removal and CAT protection, it 
is also silent on the standard applied during such screenings. By 
regulation, the Departments have applied the ``significant 
possibility'' standard to also screen for potential eligibility for 
statutory withholding of removal and CAT protection, see 8 CFR 
208.30(e)(2)-(3), 1003.42(d): AOs must determine whether ``there is a 
significant possibility, taking into account the credibility of the 
statements made by the alien in support of the alien's claim and such 
other facts as are known to the officer, that the alien can establish 
eligibility . . . for withholding of removal under section 241(b)(3) of 
the Act,'' 8 CFR 208.30(e)(2), and whether the noncitizen ``shows that 
there is a significant possibility that the alien is eligible for 
withholding of removal or deferral of removal under the Convention 
Against Torture, pursuant to Sec.  208.16 or Sec.  208.17,'' 8 CFR 
208.30(e)(3). If the AO determines that the noncitizen does not have a 
credible fear of persecution or torture in the proposed country of 
removal, the noncitizen may request that an IJ review that 
determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III); 8 CFR 208.16(b)-(c), 208.30(g), 
208.33(b)(2)(v), 1208.16(b)-(c), 1208.30(g).
    To the extent commenters allege that the Departments are not 
applying the ``significant possibility'' standard to screen for asylum 
eligibility--such as for application of the limitation on asylum 
eligibility--the commenters are mistaken. Under this rule, the AO or IJ 
determines whether there is a significant possibility that the 
noncitizen would ultimately be able to demonstrate by a preponderance 
of the evidence that the limitation does not apply or that they meet 
the exception for exceptionally compelling circumstances. The 
``significant possibility'' standard applies by statute, section 
235(b)(1)(B)(v) of the INA, 8 U.S.C. 1225(b)(1)(B)(v), and the 
regulation does not in any way displace that standard, by its terms or 
otherwise. The Departments did not explicitly include this language in 
the regulation itself. This is because the provisions regarding 
credible fear screenings at 8 CFR 208.35(b) and 1208.35(b)(2) generally 
explain the order of operations--instructing the AO or IJ to consider 
the limitation first before considering the rest of the asylum claim. 
In other rules adopting conditions and limitations on asylum 
eligibility, the Departments have consistently used the regulatory text 
to explain the order of operations for consideration of the limitations 
during credible fear screenings without explicitly restating the 
applicable statutory standard,\80\ while at the same time explaining 
that the ``significant possibility'' standard applies in the 
preamble.\81\ Deviating from the Departments' practice here could 
wrongly imply that, in other regulations pertaining to the credible 
fear process, the default standard of proof for AO and IJ 
determinations is something other than the ``significant possibility'' 
standard. To avoid that unwanted implication, the Department declines 
to modify the text of Sec. Sec.  208.35 and 1208.35 as well. The 
``reasonable probability'' standard does not affect or change the 
``significant possibility'' standard used to screen for asylum 
eligibility, which, as discussed above, is set by statute and remains 
in effect for asylum claims in the credible fear process. Accordingly, 
the Departments disagree with the claim that the use of the 
``reasonable probability'' standard for the purposes of screening for 
potential eligibility for statutory withholding of removal and CAT 
protection would eliminate, or in any way affect, the ``significant 
possibility'' standard as it applies to screening for asylum 
eligibility.
---------------------------------------------------------------------------

    \80\ For example, under the Circumvention of Lawful Pathways 
rule, ``[t]he asylum officer shall first determine whether the alien 
is covered by the presumption . . . and, if so, whether the alien 
has rebutted the presumption[.]'' 8 CFR 208.33(b)(1); see also 8 CFR 
1208.33(b)(2) (``The immigration judge shall first determine whether 
the alien is covered by the presumption at 8 CFR 208.33(a)(1) and 
1208.33(a)(1) and, if so, whether the alien has rebutted the 
presumption in accordance with 8 CFR 208.33(a)(3) and 
1208.33(a)(3).''); Asylum Eligibility and Procedural Modifications, 
84 FR 33829, 33843-45 (July 16, 2019) (interim final rule amending 
and adding provisions at 8 CFR 208.30(e)(5)(ii) through(iii), 
1003.42(d)(2) and(3), and 1208.30(g)(1)(i) through (ii), providing 
the order of operations for applying two now-rescinded bars to 
asylum eligibility); 88 FR at 31319; id. at 31449 (adding amendatory 
instructions to remove regulatory provisions added to implement the 
bars to asylum eligibility adopted in two prior rules).
    \81\ See, e.g., 89 FR at 48755 (explaining that, during the 
credible fear interview, ``the AO will first determine whether there 
is a significant possibility that the noncitizen is eligible for 
asylum in light of the [rule's] limitation on asylum eligibility''); 
id. at 48757-58 (discussing the application of the ``significant 
possibility'' standard under the rule during IJ review of a negative 
credible fear determination); 84 FR at 33837 (``If there is a 
significant possibility that the alien is not subject to the 
eligibility bar (and the alien otherwise demonstrates that there is 
a significant possibility that he or she can establish eligibility 
for asylum), then the alien will have established a credible 
fear.''); Aliens Subject to a Bar on Entry Under Certain 
Presidential Proclamations; Procedures for Protection Claims, 83 FR 
55934, 55943 (Nov. 9, 2018) (``If there is a significant possibility 
that the alien is not subject to the eligibility bar (and the alien 
otherwise demonstrates sufficient facts pertaining to asylum 
eligibility), then the alien will have established a credible 
fear.'').
---------------------------------------------------------------------------

    The Departments also disagree that the rule's application of the 
``reasonable probability'' standard to screen for potential eligibility 
for statutory withholding of removal or CAT protection is inconsistent 
with the ``significant possibility'' standard under the expedited 
removal statute. As the Departments observed previously, ``Congress 
clearly expressed its intent that the `significant possibility' 
standard be used to screen for asylum eligibility but did not express 
any clear intent as to which standard should apply to other 
applications.'' 88 FR at 11742. Section 241(b)(3) of the INA, 8 U.S.C. 
1231(b)(3), and FARRA section 2242 are silent as to what screening 
standards and procedures are to be employed in determining potential 
eligibility for statutory withholding of removal or CAT protection, and 
the INA elsewhere confers broad discretionary authority to establish 
rules and procedures for implementing those provisions. See, e.g., INA 
103(a)(3), (g)(2), 8 U.S.C. 1103(a)(3), (g)(2). Accordingly, the 
Departments have some discretion to articulate the screening standard 
for claims for statutory withholding of removal and CAT protection. As 
further discussed in Section III.C.3 of this preamble, the Departments 
continue to believe that during the emergency border circumstances 
described in the IFR and this rule, the ``reasonable probability'' 
screening standard is more appropriate in light of the ultimate burden 
of proof for statutory withholding of removal and CAT protection and 
better captures the population of noncitizens with potentially valid 
claims for such protection. See 89 FR at 48745-47.
    Thus, despite the claims of some commentators, the rule does not 
effectively shut down the U.S. asylum system or deviate from applicable 
statutory standards. Noncitizens still

[[Page 81174]]

may seek asylum and protection in the United States.
d. General Comments on International Law
    Comment: Commenters generally asserted that the rule violates 
international law. A commenter wrote that seeking asylum is a human 
right guaranteed by international law and the rule unjustly denies 
people this right. In this regard, a commenter asserted that the use of 
emergency border circumstances as a justification for promulgating the 
rule is insufficient to justify violating international law and that 
the lack of a time frame or sunset provision denies access to migrants 
seeking asylum and places them at risk of refoulement. Commenters 
claimed that the rule imposes prohibited penalties on asylum seekers, 
bars refugees from a path to citizenship, and impermissibly 
discriminates based on manner of entry, race, and nationality. A 
commenter stated that regulations that deny access to asylum based on 
arbitrary factors that do not relate to a person's status as a refugee 
are inconsistent with the Refugee Convention and that the United States 
has an obligation under the Convention to provide a ``fair and 
efficient refugee status determination procedure'' to individuals in 
the U.S. asylum process.
    Commenters were concerned that the rule violates the United 
States's non-refoulement obligations under the Refugee Convention 
(through the Refugee Protocol) and Article 3 of the CAT. For example, 
commenters predicted many noncitizens would not be able to satisfy the 
comparatively higher standards of proof for statutory withholding of 
removal and CAT protection claims and that, in turn, would lead to the 
refoulement of persons who, if not for the rule's limitation on asylum 
eligibility, would have been granted asylum. Several of these 
commenters also asserted that statutory withholding of removal and CAT 
protection are insufficient to satisfy the United States's non-
refoulement obligations because they afford lesser protection than 
asylum. Commenters expressed apprehension that the rule would result in 
the turning away of migrants who seek refuge at the southern border.
    Another commenter wrote that the rule is consistent with U.S. 
commitments under the Refugee Protocol and the CAT, reasoning that 
neither is self-executing and therefore the United States is bound only 
by its own law implementing these treaties. The commenter acknowledged 
that the United States implements its non-refoulement obligations 
through the withholding of removal statute at section 241(b)(3) of the 
INA, 8 U.S.C. 1231(b)(3). Another commenter, however, asserted that the 
argument that asylum is discretionary under U.S. law and therefore the 
rule does not violate the Refugee Protocol is incorrect as a matter of 
international law, even if true under domestic law, because parties to 
the Refugee Convention must provide asylum and protection from 
refoulement to those who meet the definition of ``refugee.''
    Response: This rule is consistent with the United States' 
international treaty obligations. Three primary documents govern the 
rights of refugees and corresponding obligations of states in 
international law: the Refugee Convention; the Refugee Protocol, which 
incorporates Articles 2 through 34 of the Refugee Convention; and the 
CAT. 88 FR at 31384. Together, these documents provide a framework for 
states to provide protection to noncitizens fleeing persecution or 
torture and establish the principle of non-refoulement, which prohibits 
states from returning refugees to territories in specific 
circumstances. Id.
    These treaties, however, do not prescribe or impose any particular 
minimum procedures for implementation of non-refoulement obligations. 
Although the United States is a party to the 1967 Refugee Protocol \82\ 
and the CAT, these treaties are not directly enforceable in U.S. law. 
See INS v. Stevic, 467 U.S. 407, 428 & n.22 (1984); Al-Fara v. 
Gonzales, 404 F.3d 733, 743 (3d Cir. 2005) (``The 1967 Protocol is not 
self-executing, nor does it confer any rights beyond those granted by 
implementing domestic legislation.''); Omar v. McHugh, 646 F.3d 13, 17 
(D.C. Cir. 2011) (explaining that the CAT ``is non-self-executing and 
thus does not itself create any rights enforceable in U.S. courts''). 
Instead, the United States has implemented its obligations through 
domestic legislation and implementing regulations. The Refugee 
Convention's non-refoulement obligation is contained in Article 33.1, 
which prohibits contracting states from returning a refugee to a 
territory ``where his life or freedom would be threatened'' on account 
of an enumerated ground. 19 U.S.T. at 6276, 189 U.N.T.S. at 176. The 
United States has implemented the non-refoulement provisions of Article 
33.1 of the Refugee Convention through the withholding of removal 
provisions at section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), rather 
than through the asylum provisions at section 208 of the INA, 8 U.S.C. 
1158. See Cardoza-Fonseca, 480 U.S. at 429, 440-41. The CAT's non-
refoulement provision is in Article 3, which prohibits the return of a 
person to a country where there are ``substantial grounds for 
believing'' the person will be tortured. S. Treaty Doc. No. 100-20 at 
20, 1465 U.N.T.S. 85, 114. The United States has implemented its 
obligations under Article 3 of the CAT through regulations. See FARRA, 
Public Law 105-277, sec. 2242(b), 112 Stat. 2681-761, 2681-822 
(codified at 8 U.S.C. 1231 note); see also, e.g., 8 CFR 208.16(c), 
208.17, 208.18, 1208.16(c), 1208.17, 1208.18. The rule does not change 
or limit ultimate eligibility for statutory withholding of removal or 
CAT protection. Instead, applicants subject to the rule's limitation on 
asylum eligibility will be screened for potential eligibility for 
statutory withholding of removal and CAT protection under a 
``reasonable probability'' standard, which is lower than the ultimate 
statutory or regulatory standard of proof for those forms of 
protection.
---------------------------------------------------------------------------

    \82\ See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 169 
n.19 (1993) (``Although the United States is not a signatory to the 
[1951 Refugee] Convention itself, in 1968 it acceded to the United 
Nations Protocol Relating to the Status of Refugees, which bound the 
parties to comply with Articles 2 through 34 of the Convention as to 
persons who had become refugees because of events taking place after 
January 1, 1951.'' (citation omitted)).
---------------------------------------------------------------------------

    The rule will limit asylum eligibility for some noncitizens. But, 
as the Supreme Court has explained, asylum ``does not correspond to 
Article 33 of the Convention, but instead corresponds to Article 
34[,]'' which provides that contracting countries ``shall as far as 
possible facilitate the assimilation and naturalization of refugees.'' 
Cardoza-Fonseca, 480 U.S. at 441 (quoting Refugee Convention art. 34, 
19 U.S.T. at 6276, 189 U.N.T.S. at 176); see also United Nations High 
Commissioner for Refugees (``UNHCR''), Handbook on Procedures and 
Criteria for Determining Refugee Status and Guidelines on International 
Protection Under the 1951 Convention and the 1967 Protocol Relating to 
the Status of Refugees 16 para. 25 (2019 ed.) (``[T]he granting of 
asylum is not dealt with in the 1951 Convention or the 1967 
Protocol''). Article 34 ``is precatory; it does not require the 
implementing authority actually to grant asylum to all those who are 
eligible.'' Cardoza-Fonseca, 480 U.S. at 441. Because the limitation on 
asylum eligibility does not affect ultimate eligibility for statutory 
withholding of removal or protection under the CAT regulations, the 
rule is consistent with U.S. non-refoulement obligations under the 
Refugee Protocol (incorporating,

[[Page 81175]]

among other things, Article 33 of the Refugee Convention) and the CAT. 
See R-S-C, 869 F.3d at 1188 n.11 (explaining that ``the Refugee 
Convention's 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''); 
Cazun v. Att'y Gen. U.S., 856 F.3d 249, 257 & n.16 (3d Cir. 2017); 
Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016).
    The Departments agree that asylum is an important form of 
protection and acknowledge that the right to seek asylum has been 
recognized under the Universal Declaration of Human Rights (``UDHR''), 
art. 14, G.A. Res. 217A (III), U.N. Doc. A/810 (1948). The UDHR is a 
nonbinding human rights resolution of the UN General Assembly, and thus 
it does not impose legal obligations on the United States. See Sosa v. 
Alvarez-Machain, 542 U.S. 692, 734-35 (2004) (``[T]he [UDHR] does not 
of its own force impose obligations as a matter of international 
law.'').
    Moreover, although the rule creates a limitation on eligibility for 
asylum, the rule does not bar those seeking asylum from taking part in 
procedures that protect them from refoulement. Under the rule, all 
noncitizens processed for expedited removal who manifest a fear of 
return, express an intention to apply for asylum or protection, or 
express a fear of persecution or torture or a fear of return to their 
country or the country of removal are referred for a credible fear 
interview. Even in those cases where the AO determines that the 
noncitizen has not established a significant possibility that they 
could ultimately demonstrate by a preponderance of the evidence that 
they are not subject to the limitation on asylum eligibility or are 
excepted from it, the noncitizen may still demonstrate credible fear by 
showing a reasonable probability of persecution or torture. Similarly, 
even if found ineligible for asylum by an IJ due to the application of 
the limitation on asylum eligibility, a noncitizen may still 
demonstrate eligibility for statutory withholding of removal or CAT 
protection.
    The rule is also consistent with the Refugee Convention and the 
corresponding obligations under international law, including the 
specific provisions cited by commenters. The rule does not violate the 
nondiscrimination requirement in Article 3 of the Refugee Convention. 
Article 3 prohibits discrimination on the basis of ``race, religion or 
country of origin.'' 19 U.S.T. at 6264, 189 U.N.T.S. at 156. The rule 
does not discriminate on the basis of any of the protected 
characteristics described in Article 3. This rule is limited to the 
southern border because that is the U.S. border where emergency 
circumstances exist. The Departments acknowledge that this limitation 
will affect those noncitizens with easier access to the southern border 
and not those with easier access to other borders of the United States. 
However, the rule does not treat such noncitizens differently on that 
basis; the rule applies equally based on the actions of a noncitizen 
during emergency border circumstances. Specifically, the application of 
this rule is limited to those who enter the United States across the 
southern border during emergency border circumstances described in the 
Proclamation and this rule, are not described in section 3(b) of the 
Proclamation, and do not establish the existence of exceptionally 
compelling circumstances. For the same reason, the rule does not 
violate other antidiscrimination principles described in other 
international human rights treaties, including the International 
Convention on the Elimination of All Forms of Racial Discrimination, 
arts. 2-5, Dec. 21, 1965, T.I.A.S. No. 94-1120, 660 U.N.T.S. 195, and 
the International Covenant on Civil and Political Rights, arts. 2-3, 
Dec. 16, 1966, T.I.A.S. No. 92-908, 999 U.N.T.S. 171.
    Similarly, the rule is consistent with Article 31.1 of the Refugee 
Convention, which prohibits states from ``impos[ing] penalties'' on 
refugees based on ``illegal entry or presence'' if such refugees are 
``coming directly from a territory where their life or freedom was 
threatened'' and ``present themselves without delay to the authorities 
and show good cause for their illegal entry or presence.'' 19 U.S.T. at 
6275, 189 U.N.T.S. at 174. As the commentary to the Refugee Convention 
explains, the term ``penalties'' in Article 31.1 refers ``to 
administrative or judicial convictions on account of illegal entry or 
presence, not to expulsion.'' UNHCR, The Refugee Convention, 1951: The 
Travaux Pr[eacute]paratoires Analyzed with a Commentary by Dr. Paul 
Weis 219, https://www.unhcr.org/us/media/refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul-weis; see Cazun, 856 
F.3d at 257 & n.16 (rejecting argument that the reinstatement bar on 
asylum was a ``penalty'' within the meaning of Article 31.1). The rule 
does not change any rules or policies relating to detention or 
convictions for unlawful entry or presence. The Departments acknowledge 
that the Ninth Circuit concluded in East Bay III, 993 F.3d at 674, that 
the bar to asylum at issue in that case violated Article 31.1 of the 
Refugee Convention because it imposed a ``penalty.'' As described in 
the IFR, the rule here does not create a categorical bar to asylum, but 
instead a limitation on asylum eligibility, and East Bay III 
accordingly does not address the lawfulness of this rule. 89 FR at 
48735. Moreover, the Ninth Circuit's conclusion was erroneous because 
the denial of discretionary relief is not a penalty within the meaning 
of Article 31.1. Id. at 48736.
    Comment: One commenter asserted that the IFR conflicts with the 
United States Supreme Court's decisions in Murray v. Schooner Charming 
Betsy, 6 U.S. (2 Cranch) 64, 118 (1804), which generally states that 
ambiguous U.S. statutes should be interpreted to avoid conflicts with 
international law where possible, and INS v. Cardoza-Fonseca, 480 U.S. 
421, 436-37 (1987), which explained that ``one of Congress' primary 
purposes'' when passing the Refugee Act of 1980 ``was to bring United 
States refugee law into conformance with the 1967 [Refugee Protocol].''
    Response: The Departments disagree with the commenter that the IFR 
conflicts with Charming Betsy or Cardoza-Fonseca.\83\ As explained 
above, the rule is consistent with the United States' obligations under 
international law, specifically the Refugee Convention, the Refugee 
Protocol, and the CAT. The rule does not change the ultimate 
eligibility requirements for statutory withholding of removal or CAT 
protection and is consistent with the United States' non-refoulement 
obligations. Moreover, the rule does not prohibit any person from 
seeking asylum or, more importantly for purposes of U.S. non-
refoulement obligations, from seeking or obtaining statutory 
withholding of removal or CAT protection. All noncitizens processed for 
expedited removal who manifest a fear of return, express an intention 
to apply for asylum or protection, or express a fear of persecution or 
torture or a fear of return to their country or the country of removal 
are entitled to a credible fear interview. Even in cases in which the 
AO determines that the noncitizen is subject to the limitation on 
eligibility for asylum, the noncitizen may still receive a positive 
credible fear determination by

[[Page 81176]]

showing a reasonable probability of persecution or torture. Similarly, 
after applying for asylum before an IJ, a noncitizen may still 
demonstrate eligibility for statutory withholding of removal or CAT 
protection.
---------------------------------------------------------------------------

    \83\ For purposes of this response, the Departments assume 
arguendo that the Charming Betsy canon applies with respect to non-
self-executing treaties. See, e.g., Saleh v. Bush, 848 F.3d 880, 891 
n.9 (9th Cir. 2017) (noting that the question remains unsettled).
---------------------------------------------------------------------------

e. UNHCR Guidelines on International Protection
    Comment: Commenters stated that the rule violates UNHCR statements 
and guidelines and the right to seek asylum guaranteed by Article 14 of 
the UDHR. Commenters also claimed that the pre-screening procedures in 
expedited removal proceedings are contrary to UNHCR guidelines and that 
adjudicators must instead provide full and individualized assessments 
of each asylum case.
    Response: The Departments agree that asylum is an important 
protection in international law and acknowledge that the right to seek 
asylum has been recognized under article 14 of the UDHR. However, the 
UDHR is a nonbinding human rights resolution of the UN General Assembly 
and does not impose legal obligations on the United States. See Sosa, 
542 U.S. at 734-35 (``[T]he [UDHR] does not of its own force impose 
obligations as a matter of international law.''). Moreover, UNHCR's 
interpretations of, or recommendations regarding, the Refugee 
Convention and Refugee Protocol are ``not binding on the Attorney 
General, the BIA, or United States courts.'' INS v. Aguirre-Aguirre, 
526 U.S. 415, 427 (1999). UNHCR's Handbook on Procedures and Criteria 
for Determining Refugee Status ``itself disclaims such force, 
explaining that `the determination of refugee status under the 1951 
Convention and the 1967 Protocol . . . is incumbent upon the 
Contracting State in whose territory the refugee finds himself.''' Id. 
at 427-28 (quoting Cardoza-Fonseca, 480 U.S. at 439 n.22). Such 
guidance ``may be a useful interpretative aid,'' id. at 427, but it 
does not impose obligations on the United States.
    Comment: Commenters stated that the rule violates the Refugee 
Convention because the exclusion grounds in Article 1(F) of the Refugee 
Convention are exhaustive, yet the rule creates an exclusion ground not 
found in Article 1(F). The commenters acknowledged that the rule's 
limitation on asylum eligibility contains an exception but asserted 
that the exception is insufficient to comply with the Refugee 
Convention. Along the same lines, a commenter asserted that such 
exclusionary grounds should only be considered after an assessment of 
whether the noncitizen is a ``refugee'' and be balanced against the 
need for protection itself, as is the order of procedures in a full 
merits hearing.
    Response: The Departments disagree with the commenters' 
characterization of the limitation on asylum eligibility in this rule 
as a ground of exclusion like those in Article 1(F) of the Refugee 
Convention. Article 1(F) of the Refugee Convention provides that the 
provisions of the Convention ``shall not apply to any person with 
respect to whom there are serious reasons for considering that'' they 
have: (1) ``committed a crime against peace, a war crime, or a crime 
against humanity''; (2) ``committed a serious non-political crime 
outside the country of refuge prior to [their] admission to that 
country as a refugee''; or (3) ``been guilty of acts contrary to the 
purposes and principles of the United Nations.'' As explained above, 
the United States has implemented the non-refoulement provisions of 
Article 33.1 of the Refugee Convention through the withholding of 
removal provisions at section 241(b)(3) of the INA, 8 U.S.C. 
1231(b)(3), rather than through the asylum provisions at section 208 of 
the INA, 8 U.S.C. 1158. This rule's limitation on asylum eligibility 
does not extend to statutory withholding of removal and therefore does 
not implicate the application of the Convention's exclusion grounds to 
the mandatory non-refoulement obligation of Article 33. See R-S-C, 869 
F.3d at 1188 n.11 (explaining that ``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'' (emphasis 
added)). Nor does the rule restrict who qualifies as a refugee. Cf. INA 
101(a)(42), 8 U.S.C. 1101(a)(42) (excluding those who ``ordered, 
incited, assisted, or otherwise participated in the persecution of any 
person on account of'' a protected ground from the ``refugee'' 
definition); UNHCR, UNHCR Statement on Article 1F of the 1951 
Convention at 1 (July 2009), https://www.unhcr.org/us/media/unhcr-statement-article-1f-1951-convention (providing that the exclusion 
grounds ``exclude a person from being a refugee where there are serious 
reasons for considering that she/he has committed certain heinous 
acts'').
    In any event, the exclusion clauses of Article 1(F) of the Refugee 
Convention do not limit the United States from adopting additional or 
different limitations on asylum eligibility. Congress has implemented 
Article 1(F) in establishing mandatory bars to eligibility for 
statutory withholding of removal. See INA 241(b)(3)(B), 8 U.S.C. 
1231(b)(3)(B). Congress adopted certain parallel bars to asylum 
eligibility, see, e.g., INA 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A), but 
also authorized the Departments to establish additional limitations on 
asylum eligibility, see INA 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). As 
discussed earlier in this preamble, the asylum statute implements the 
precatory provision in Article 34 of the Convention, but neither the 
mandatory nor the precatory provisions of the Convention and Protocol 
are directly enforceable in U.S. law. See Stevic, 467 U.S. at 428 & 
n.22; Al-Fara, 404 F.3d at 743 (``The 1967 Protocol is not self-
executing, nor does it confer any rights beyond those granted by 
implementing domestic legislation.'' (citations omitted)). Instead, the 
United States has implemented its obligations through domestic 
legislation and implementing regulations, and the Protocol ``serves 
only as a useful guide in determining congressional intent in enacting 
the Refugee Act.'' Barapind v. Reno, 225 F.3d 1100, 1107 (9th Cir. 
2000) (citations omitted). Thus, the Refugee Protocol does not 
circumscribe the United States' prerogative to establish limitations on 
asylum eligibility that extend beyond the exclusion grounds described 
in Article 1(F).
f. 2000 Protocol To Prevent, Suppress, and Punish Trafficking in 
Persons, Especially Women and Children
    Comment: A commenter stated that the rule conflicts with the United 
States' obligations under the Protocol to Prevent, Suppress and Punish 
Trafficking in Persons, Especially Women and Children, Supplementing 
the United Nations Convention Against Transnational Organized Crime, 
Nov. 15, 2000, 2237 U.N.T.S. 319 (``Trafficking Protocol''), and the 
Trafficking Victims Protection Act of 2000 (``TVPA''), 22 U.S.C. 7101 
et seq., because the rule will not prevent human trafficking and will 
instead drive trafficking networks further underground and make people 
more vulnerable to exploitation. The commenter stated that the reality 
of human movement and escape from harm will drive people to take other 
routes and reported that they had handled cases involving individuals 
who were mistreated after being forced to take on large debts to pay 
smuggling networks to seek safety in the United States. The commenter 
also claimed the rule will exacerbate violent crime, which increases 
asylum seekers' vulnerabilities to trafficking.
    Response: The Departments disagree that the rule conflicts with 
U.S.

[[Page 81177]]

obligations under the Trafficking Protocol or the TVPA. At the outset, 
the Departments note that the Trafficking Protocol is separate from the 
Refugee Convention and Refugee Protocol; the Trafficking Protocol 
explicitly disclaims any impact upon those agreements or on the non-
refoulement principle they contain. See Trafficking Protocol art. 14(1) 
(``Nothing in this Protocol shall affect the rights, obligations and 
responsibilities of States and individuals under international law, 
including . . . , in particular, where applicable, the 1951 Convention 
and the 1967 Protocol relating to the Status of Refugees and the 
principle of non-refoulement as contained therein.'').
    In addition, the rule is consistent with the Trafficking Protocol 
and TVPA. Nothing in the IFR or the rule is implicated by or conflicts 
with the provisions of the Trafficking Protocol, none of which relate 
to limitations on asylum eligibility. Moreover, the IFR and this rule 
remain in line with the purpose of the Trafficking Protocol in 
protecting and assisting the victims of human trafficking,\84\ as they 
specify that any person who can demonstrate by a preponderance of the 
evidence that they are a ``victim of a severe form of trafficking in 
persons'' as defined in 8 CFR 214.201 will thereby show exceptionally 
compelling circumstances, and will therefore not be subject to the 
rule's limitation on asylum eligibility. Similarly, the IFR and this 
rule are entirely consistent with the TVPA, which provides immigration 
relief to certain victims of a severe form of trafficking in persons 
who assist law enforcement (or meet certain exceptions), Public Law 
106-386, sec. 107(e), 114 Stat. 1464, 1477, but does not otherwise 
implicate immigration authorities under title 8.
---------------------------------------------------------------------------

    \84\ Trafficking Protocol art. 2.b, 2237 U.N.T.S. at 344.
---------------------------------------------------------------------------

    Regarding the commenter's concerns about smuggling and trafficking, 
the Departments believe the most helpful approach to prevent migrants 
from falling victim to smugglers and traffickers is to both discourage 
attempts to enter the United States irregularly and, ultimately, to 
increase the availability of lawful pathways for migration.
    This rule is expected to continue to reduce irregular migration, 
which benefits human smuggling and trafficking organizations. The rule 
is also expected to reduce human trafficking and smuggling by reducing 
overall flows of migrants, thereby allowing the Departments to better 
manage their limited resources while delivering consequences more 
swiftly through expedited removal for those without a legal basis to 
remain. Id. at 48762, 48766-67.
    Moreover, CBP immigration officers (both USBP agents and CBP 
officers) have extensive experience interviewing and observing 
individuals. Id. at 48744. They are trained to identify potential 
trafficking victims or victims of crimes and to take appropriate follow 
up action. Id. The commenter's prediction that the rule may increase 
asylum seekers' vulnerabilities to trafficking is speculative and 
ignores CBP immigration officers' training and experience in combating 
and preventing human trafficking. Additionally, without this rule, 
incentives for irregular migration would likely increase, which would 
likely exacerbate the very vulnerabilities about which the commenter 
expressed concern, including by driving more migrants into the hands of 
human traffickers promising a pathway to the United States. See id. at 
48714-15.
    Regarding the commenter's concerns about the safety of noncitizens 
attempting to enter the United States, one cause of recent surges in 
irregular migration is smugglers and migrants' growing understanding 
that DHS's capacity to impose consequences at the border is limited by 
the lack of resources and tools that Congress has made available. Id. 
at 48714. The Departments assess that the IFR has significantly 
increased the ability to deliver timely decisions and consequences, 
combating contrary messaging and perceptions. See Section II.A.2 of 
this preamble; see also 89 FR at 48746. Additional discussion of the 
rule's incentive effects is found at Sections III.A.2 and III.B.2 of 
this preamble.
2. Justification and Statements on Need for the Rule
a. Rule Is Unjustified, Unsubstantiated, or Arbitrary
    Comment: Several commenters argued that the Departments' reliance 
on the success of the Circumvention of Lawful Pathways rule to justify 
the IFR is erroneous because the evidence regarding the high levels of 
encounters at the border does not support implementing such ``extreme'' 
measures as those contained in the IFR. One commenter stated that the 
Departments cannot argue that the Circumvention of Lawful Pathways rule 
has been successful at alleviating the stress on the border and 
immigration systems while at the same time arguing that the measures in 
the IFR are needed to address the surge in high levels of migration at 
the southern border. Another commenter argued that (1) the increase in 
encounters prior to the end of the Title 42 public health Order does 
not necessarily mean that encounters would have remained high after the 
Title 42 public health Order ended, and (2) it is implausible that the 
Circumvention of Lawful Pathways rule led to higher encounters prior to 
its implementation and lower encounters after its implementation, as 
most migrants did not know what the Circumvention of Lawful Pathways 
rule was before it was implemented. Thus, the commenter claimed, it is 
more likely that the end of the Title 42 public health Order was the 
reason for higher encounters prior to its end and lower encounters 
after its end. The commenter concluded that, as there is insufficient 
evidence to support the asserted success of the Circumvention of Lawful 
Pathways rule, a fundamental justification of the IFR, it is not 
justifiable to institute more stringent processes under the IFR.
    Another commenter similarly took issue with the effectiveness of 
the Circumvention of Lawful Pathways rule, stating that it is well 
understood that the Title 42 public health Order drove border crossings 
to record highs, and the end of the Title 42 public health Order would 
therefore have led to a substantial decrease in border crossings 
without further policy changes. However, the commenter said the 
Departments claimed, without any evidence, that crossing levels under 
the Title 42 public health Order were somehow predictive of crossing 
levels after the Title 42 public health Order ended; the commenter said 
this assertion is contrary to the record.
    Response: The Departments disagree with commenters' claim that 
there is not enough evidence demonstrating the Circumvention of Lawful 
Pathways rule's impact on encounters at the SWB. In the first month 
following the implementation of the Circumvention of Lawful Pathways 
rule, encounters between POEs along the SWB decreased by 69 percent 
compared to their peak just before the end of the Title 42 public 
health Order.\85\ The Departments believe that overall encounters would 
not have decreased after the end of the Title 42 public health Order 
absent their implementation of policy changes, including the 
Circumvention of Lawful Pathways rule, to address the level of 
irregular migration. The Departments

[[Page 81178]]

agree with commenters that the Title 42 public health Order increased 
repeat crossing attempts, but as noted in the Circumvention of Lawful 
Pathways rule, repeat crossings were a contributing factor, but not the 
only reason, for the increase in overall encounters: for example, 
unique encounters with nationals of countries outside of Mexico and 
Northern Central America were also rising also increased in each of FYs 
2022-2024, as compared with the pre-pandemic period.\86\ In addition to 
the overall increase in encounters and unique encounters, several other 
factors caused the Departments to project a spike in average daily 
encounters in the run-up to the end of the Title 42 public health 
Order, including: (1) the prospect that DHS would no longer have a 
means to promptly expel migrants without a legal basis to stay in the 
United States following the termination of the Title 42 public health 
Order; (2) the presence of several large diaspora populations in Mexico 
and elsewhere in the hemisphere; (3) the unprecedented recent growth in 
migration from countries of origin not previously typically 
encountered; (4) the already large number of migrants in proximity to 
the SWB; and (5) the general uncertainty surrounding the expected 
impact of the termination of the Title 42 public health Order. See 89 
FR at 48723; see also 88 FR at 31316. Consistent with their 
projections, the Departments planned for, and briefly observed, a very 
significant spike in average daily encounters. See 89 FR at 48723. Had 
these levels of migration persisted without the incentives put in place 
by the Circumvention of Lawful Pathways rule, encounters may have 
exceeded even the very high levels of irregular migration that the 
Departments observed under that rule. See id. at 48723-24. The 
Departments believe the Circumvention of Lawful Pathways rule mitigated 
the overall impact on the border security and immigration systems that 
would have been caused by an expected surge following the end of 
processing under the Title 42 public health Order. This is evidenced by 
the sharp initial drop CBP saw in overall encounters at the SWB in the 
weeks following the expiration of the Title 42 public health Order and 
when the Circumvention of Lawful Pathways rule went into effect.\87\ 
Instead of seeing a surge of migrants arriving at the border following 
the end of the Title 42 public health Order, there was a precipitous 
drop that lasted through June 2023.\88\ At about the same time DHS 
assessed, and public reporting confirmed, that DHS messaging about the 
Circumvention of Lawful Pathways rule and associated measures were 
effective in dissuading potential migrants from attempting to cross the 
U.S. border due to the disincentives created by that rule.\89\
---------------------------------------------------------------------------

    \85\ See Decl. of Blas Nu[ntilde]ez-Neto ] 13, E. Bay Sanctuary 
Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 
176-2).
    \86\ Unique USBP SWB encounters of nationals of countries other 
than Mexico and Northern Central America were more than 30 times 
higher in each of FY 2022-FY 2024 (through May 2024) than in the 
pre-pandemic period. OHSS analysis of July 2024 Persist Dataset 
(USBP Encounters by Citizenship tab).
    \87\ Average daily CBP SWB encounters fell 68 percent from their 
May 12, 2023, level in the first 11 days after the CLP rule went 
into effect and remained at similar low levels throughout May and 
June 2024. OHSS analysis of July 2024 OHSS Persist Dataset 
(Encounters FY2000-2024 tab).
    \88\ Id. In July 2023, total monthly CBP SWB encounters remained 
below 200,000. While total encounters increased from August 2023 
through December 2023, the same increase occurred between August 
2022 and December 2022 while the Title 42 public health Order was 
still in place, suggesting that these surges are more consistent 
with seasonal migration trends that changes in U.S. immigration 
policy cannot unilaterally mitigate. Id.
    \89\ See Mary Beth Sheridan, Reyes Mata III, Maria Sacchetti & 
Nick Miroff, End of Title 42 Pandemic Border Policy Brings Reset, 
But No Sudden Rush, Wash. Post (May 12, 2023), https://www.washingtonpost.com/nation/2023/05/12/title-42-pandemic-ends-border-migrants/; see also Valerie Gonzalez, Migrants Rush Across 
U.S. Border in Final Hours Before Title 42 Asylum Restrictions are 
Lifted, PBS (May 11, 2023), https://www.pbs.org/newshour/politics/migrants-rush-across-u-s-border-in-final-hours-before-title-42-asylum-restrictions-are-lifted; Decl. of Blas Nu[ntilde]ez-Neto ] 
22, E. Bay Sanctuary Covenant v. Biden, No. 18-cv-6810 (N.D. Cal. 
June 16, 2023) (Dkt. 176-2); Testimony of Blas Nu[ntilde]ez-Neto 
Before U.S. House of Representatives Committee on Homeland Security 
Subcommittee on Border Security and Enforcement on ``Examining DHS' 
Failure to Prepare for the Termination of Title 42'' (June 6, 2023), 
https://www.congress.gov/118/meeting/house/115908/witnesses/HHRG-118-HM11-Wstate-Nuez-NetoB-20230606.pdf.
---------------------------------------------------------------------------

    The Departments recognize that while the Circumvention of Lawful 
Pathways rule is a valuable tool available to the Departments to reduce 
irregular migration, it is not, by itself, able to mitigate all the 
factors influencing migration trends. Despite the success of the 
Circumvention of Lawful Pathways rule and complementary measures, for 
much of the immediate post-pandemic period until issuance of the IFR, 
border encounters remained higher than the Departments' abilities to 
consistently deliver timely decisions and consequences.\90\ Therefore, 
even if the evidence supporting the Circumvention of Lawful Pathways 
rule's success was inconclusive (which the Departments do not believe), 
the Departments would have adopted the IFR in response to the high 
number of migrants subsequently arriving at the southern border, 
overwhelming the Departments' resources and preventing them from 
delivering timely decisions and consequences to those who lack a lawful 
basis to remain.
---------------------------------------------------------------------------

    \90\ Total daily SWB encounters averaged about 5,700/day in 
April and May 2024 and USBP SWB encounters averaged about 4,100/day, 
compared to averages of 1,600 and 1,300/day, respectively, in the 
pre-Pandemic period (OHSS analysis of July 2024 Persist Dataset 
(Encounters FY2000-2024 tab). In late 2023, while the Title 42 
public health Order was in place, total encounters at the SWB 
reached all-time highs. OHSS's analysis of July 2024 Persist Dataset 
(Encounters FY2000-2024 tab) shows that total SWB encounters reached 
over 242,000 in November 2023 and over 301,000 in December 2023. 
Total SWB encounters for the month of May 2023 were approximately 
207,000. This was the month the Title 42 public health Order ended 
and when the Circumvention of Lawful Pathways rule went into effect. 
Total SWB encounters for the following month (June 2023) dropped 
precipitously to 145,000 encounters, but total SWB encounters 
climbed back to 233,000 in August 2023 and remained at highly 
elevated levels through December 2023.
---------------------------------------------------------------------------

    The rule is a tailored approach designed to substantially improve 
the Departments' abilities to process noncitizens more expeditiously 
and deliver timely decisions and consequences to most noncitizens who 
cross between POEs into the United States during emergency border 
circumstances. As discussed in Section II.A.2 of this preamble, the IFR 
is working as intended. DHS is placing into expedited removal the 
majority of single adults and individuals in family units encountered 
by USBP at the SWB, the rule has reduced the percentage of noncitizens 
encountered at the SWB who are released, and DHS is more quickly 
removing a greater percentage of those without a legal basis to remain 
in the United States than during the immediate post-pandemic period, 
which in turn discourages additional crossings.\91\ Since promulgating 
the IFR,

[[Page 81179]]

USBP has placed 59 percent of noncitizen single adults and individuals 
in family units encountered at the SWB into expedited removal 
proceedings, compared to 18 percent of such noncitizens during the 
immediate post-pandemic period following the end of the Title 42 public 
health Order,\92\ and 41 percent in the pre-pandemic period.\93\
---------------------------------------------------------------------------

    \91\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP August 6, 2024, for encounters since May 1, 2024 
(Summary Statistics tab). For encounters under the IFR through July 
31, 2024, 34 percent of bookouts of single adults and individuals in 
family unit were releases, compared to 64 percent in the immediate 
post-pandemic period. Thirty percent of bookouts from CBP custody 
were repatriations, up from 16 percent during the immediate post-
pandemic period. Overall, DHS repatriated an average of 
approximately 1,370 noncitizens encountered at the SWB per day 
during the first two months of enforcement under the IFR, up from 
approximately 1,360 in the immediate post-pandemic period. Id. This 
marginal increase understates the actual impact of the IFR, however, 
given the sharp drop in encounters: repatriations of noncitizens 
encountered at the SWB as a share of SWB encounters were equivalent 
to 26 percent in the immediate post-pandemic period compared to 62 
percent under the IFR--a rate that is also slightly higher than the 
pandemic period (58 percent, only 5 percent of which were title 8 
repatriations) and the pre-pandemic period (61 percent, at a time of 
much lower encounters and when Mexicans and Northern Central 
Americans accounted for over 90 percent of USBP encounters). Id. For 
public reporting suggesting that migrants are aware of the IFR and 
that it has discouraged attempts to cross into the United States 
irregularly, see Mariana Mart[iacute]nez Barbra & Caterina Morbiato, 
US Border Policy Spurred Migrant Camps Hundreds of Miles Away in 
Mexico's Capital, Associated Press, Sept. 1, 2024, https://apnews.com/article/mexico-migrants-asylum-cbp-app-camps-22b49fabf6e4d7d25d2873d0637544fe.
    \92\ OHSS analysis of July 2024 OHSS Persist Dataset and data 
downloaded from UIP on September 3, 2024. (Summary Statistics tab).
    \93\ Id.
---------------------------------------------------------------------------

    While more noncitizens without a legal basis to remain in the 
United States were removed under the Circumvention of Lawful Pathways 
rule than in the pre-pandemic period, the Departments recognize that 
the volume of noncitizens arriving at the SWB remained beyond the 
Departments' capacity to timely process given the resources provided by 
Congress.\94\ As explained in the IFR's preamble, once the Departments 
resumed widespread processing under their title 8 authorities, it 
became clear that, even with the Circumvention of Lawful Pathways 
rule's expanded measures to impose consequences along the SWB, 
substantial migration throughout the hemisphere, combined with 
inadequate resources and tools to keep pace, limited DHS's ability to 
meaningfully address the historic levels of encounters at the southern 
border. See 89 FR at 48713.
---------------------------------------------------------------------------

    \94\ OHSS analysis of July 2024 OHSS Persist Dataset (Immediate 
Post-Pandemic Details tab). Although sustained high encounter rates 
outstripped the Departments' abilities--based on available 
resources--to process noncitizens through expedited removal in 
significant numbers in the immediate post-pandemic period, between 
May 12, 2023, and June 4, 2024, CBP placed into expedited removal an 
average of about 920 individuals encountered between POEs each day 
on average, and USCIS conducted more than 206,000 credible fear 
interviews, a record number. Id. Between May 12, 2023, and June 4, 
2024, DHS removed or returned more than 796,000 noncitizens who did 
not have a legal basis to remain in the United States, the vast 
majority of whom crossed the SWB. Id. USBP encounters at the SWB 
decreased by 16 percent compared to the previous 12 months, to an 
average of 5,100 per day for the period from May 12, 2023, to June 
4, 2024, id., and border encounters remained below the levels 
projected to occur in the absence of the Circumvention of Lawful 
Pathways rule and complementary measures. April 2023 OHSS Encounter 
Projection.
---------------------------------------------------------------------------

    The Departments did not and have not represented that the 
Circumvention of Lawful Pathways Rule would singlehandedly resolve 
migratory pressures in the region; the Departments only represent that 
it would reduce the number of daily encounters at the SWB that, absent 
intervention, were predicted to materialize in a post-Title 42 public 
health Order surge. The pre-IFR status quo of the broken immigration 
and asylum systems had become a driver for irregular migration 
throughout the region and an increasingly lucrative source of income 
for dangerous TCOs. See 89 FR at 48714. Without adequate 
countermeasures, those TCOs will continue to grow in strength, likely 
resulting in even more smuggling operations and undermining democratic 
governance in the countries where they operate. See id. All of these 
factors, taken together, pose significant threats to the safety and 
security of migrants exploited into making the dangerous journey to the 
SWB and the U.S. communities through which many such migrants transit. 
See id. at 48715.
    Moreover, the Departments do not expect the Circumvention of Lawful 
Pathways rule or this rule to solve every migration problem in the 
region. Its provisions cannot account for every factor impacting the 
unprecedented level of migration occurring in the Western Hemisphere, 
which is why the Departments have instituted complementary measures 
such as creating lawful, safe, and orderly pathways. Thus far, as 
discussed in Section II.A of this preamble, this rule has demonstrated 
that it helps meet its goal of allowing the Departments to deliver 
timely decisions and consequences during emergency border 
circumstances.
    Comment: Several commenters argued that the rule's characterization 
of the situation at the border as an ``emergency'' is arbitrary. 
Commenters took issue with the rule's use of the daily encounter 
thresholds to identify the existence of emergency border circumstances. 
One commenter argued that the circumstances that give rise to 
``emergency border circumstances'' and so trigger the provisions of the 
rule have been met for quite some time and are not a uniquely emergent 
circumstance but a reflection of an increase in migration globally. 
Another claimed that rather than starting with an assessment of need, 
looking at the number of asylum seekers and the capacities of other 
countries in the region, the Departments began with the current level 
and allocation of resources in the United States and ``work[ed] 
backwards from there.''
    Commenters also argued that the rule is arbitrary because it 
invokes emergency authority while simultaneously asserting that border 
crossings are down. One commenter argued that the existence of this 
emergency is undercut by an almost 50 percent drop in unauthorized 
border crossings since December 2023, a period during which the 
Departments' threshold has nonetheless been met. Citing to a statement 
in Section III.B.2 of the IFR's preamble, a commenter stated the 
Departments ``concede'' that the rule was based on a fear of a future 
emergency rather than a current one.
    Finally, one commenter wrote that if a unilateral declaration of an 
emergency is all that is required for a Federal agency to violate 
statutes and court decisions, then the Executive Branch could call 
everything an ``emergency.'' The commenter claimed that the IFR's 
limitation on asylum eligibility violates section 208(a)(1) of the INA, 
8 U.S.C. 1158(a)(1), and is indistinguishable from prior regulations 
that imposed limitations on asylum eligibility that some courts have 
held unlawful. The commenter also claimed that the rule violates 
section 235 of the INA, 8 U.S.C. 1225, because it conditions a 
noncitizen's access to a credible fear interview on the ability to 
obtain a CBP One appointment. The commenter argued that labeling the 
situation at the southern border an emergency does not allow the 
Departments to disregard these statutes and court decisions.
    Response: The Departments disagree that the numerical encounter 
thresholds are arbitrary and do not reflect the existence of 
``emergency'' circumstances at the southern border. As explained in the 
IFR, emergency border circumstances exist when ``encounters at the 
southern border exceed DHS's capacity to deliver timely consequences to 
most individuals who cross irregularly into the United States and 
cannot establish a legal basis to remain in the United States.'' 89 FR 
at 48711. Thus, an emergency border circumstance is a function of high 
levels of encounters combined with resource constraints that 
substantially limit DHS's ability to place eligible noncitizens into 
expedited removal, the primary consequence-delivery mechanism Congress 
has made available to the Departments for managing border encounters 
under title 8. Id. at 48714. When southern border encounters exceed 
DHS's ability to process noncitizens for expedited removal, DHS 
generally must release those noncitizens pending section 240 removal 
proceedings, a process that can take several years to conclude. Id. The 
comparatively abbreviated timeline of the expedited removal process 
serves as a powerful disincentive against the irregular migration of 
noncitizens without strong claims for asylum, and

[[Page 81180]]

this disincentive is diminished when noncitizens are placed into 
section 240 removal proceedings, which may take several years to 
conclude.
    Given the resources made available by Congress, the Departments 
determined that the daily encounter thresholds described in the June 3 
Proclamation and this rule are a reasonable proxy for when such 
emergency border circumstances exist. See 89 FR at 48749-54. 
Specifically, when daily encounters average less than 1,500 for a 
sustained period, DHS anticipates that it ``would be able to swiftly 
deliver a consequence to enough individuals to meaningfully impact 
migratory decisions and deter unlawful entries.'' Id. at 48752. In 
contrast, when daily encounters exceed 2,500, ``DHS's ability to impose 
such consequences is significantly lower and decreases rapidly as 
encounters increase beyond that level.'' Id. For example, as noted in 
the IFR, during the FY 2013 to FY 2019 pre-pandemic period, USBP 
encounters only exceeded 1,500 per day for a sustained period from 
October 2018 to August 2019. Id. at 48753. During that 7-year period, 
an average of 210 individuals were released each day in months in which 
daily encounters were between 1,500 and 2,500, while approximately 
1,300 individuals were released each day in months in which daily 
encounters exceeded 2,500, with CBP releasing as many as 46 percent of 
the individuals it processed pending section 240 removal proceedings. 
Id. (footnote omitted). And as discussed below in Section III.D.1 of 
this preamble, the Departments' demonstrated capacity during the 
immediate post-pandemic period confirms that these thresholds reflect 
current operational capacity. If Congress provides significant 
additional resources, the Departments may then reevaluate whether the 
current thresholds still serve as a reasonable proxy for when such 
emergency border circumstances exist.
    Relatedly, the Departments disagree with commenters' suggestion 
that it was arbitrary to rely on the United States' own processing 
capacity and challenges as a justification for the rule without any 
consideration of the capacities of other countries in the region to 
address heightened migration. The Departments acknowledge that since 
2021, due to political and economic conditions globally, there have 
been substantial levels of migration throughout the Western Hemisphere, 
which have severely strained the capacities of immigration systems in 
countries throughout the region. See 89 FR at 48722. The United States 
Government has been working to address the root causes of migration and 
to abate adverse effects from unprecedented levels of irregular 
migration,\95\ including by working closely with partner countries 
across the Western Hemisphere.\96\ The Departments do not believe it 
would be appropriate to defer this rulemaking until foreign partners 
have developed enough capacity to absorb all irregular migrants, or to 
measure whether an emergency exists at the southern border by reference 
to whether such migrants have what commenters would view as sufficient 
opportunities to resettle elsewhere. Instead, the rule is part of the 
United States' efforts to act as a regional leader in responding to 
increased migratory flows. See Section III.E.1.a of this preamble. 
Moreover, the rule is structured to complement those regional efforts, 
as success in reducing push factors and in promoting alternatives to 
migration to the United States would contribute to decreasing encounter 
levels and alleviating emergency border circumstances. The rule 
permissibly responds to existing challenges at our southern border by 
providing effective safeguards that improve the Departments' ability to 
enforce the United States' immigration laws during periods of 
heightened migration by creating an incentive for noncitizens to use 
the lawful, safe, and orderly pathways that the Departments have put in 
place while simultaneously imposing swift consequences on those who do 
not have a legal basis to remain in the United States. See Section 
II.A.2 of this preamble. And this ability to impose consequences 
quickly, combined with a historic expansion of lawful pathways, is a 
critical element of the United States' ongoing diplomatic approach to 
migration management with partners in the region. See id. at 48759-60.
---------------------------------------------------------------------------

    \95\ See, e.g., The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023), 
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (committing to addressing root causes of migration).
    \96\ See The White House, Fact Sheet: Third Ministerial Meeting 
on the Los Angeles Declaration on Migration and Protection in 
Guatemala (May 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala.
---------------------------------------------------------------------------

    The Departments further note that the United States Government is 
working with regional partners in a concerted and historic effort via 
the groundbreaking Los Angeles Declaration on Migration and Protection 
to address the shared challenge of irregular migration that has 
strained the resources of countries throughout the region.\97\ The 
United States has taken steps to address migratory flows throughout the 
region by encouraging foreign partners to increase their enforcement 
efforts, integrate migrants residing in their territories, expand 
lawful pathways and processes, and channel intending migrants into 
those pathways.\98\ The United States is also working to address the 
root causes of migration, such as a lack of opportunity, poor 
government and corruption, crime, and violence in countries across the 
region and the world.\99\ However, these measures will take time to 
have significant impacts and have not been in effect long enough to 
alleviate the stress that high encounters impose on the United States 
border security and immigration systems. See id. at 48727. In the face 
of these challenges to the United States' own border and immigration 
systems, however, the Departments believe that it is appropriate to act 
at the southern border while pursuing efforts to address the root 
causes of migration more broadly.
---------------------------------------------------------------------------

    \97\ See The White House, Press Release: Los Angeles Declaration 
on Migration and Protection (June 10, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
    \98\ Id.
    \99\ See Marcela X. Escobari, FPC Briefing: Migration Policy and 
the Biden-Harris Administration's Root Cause Strategy (June 22, 
2023), https://www.state.gov/briefings-foreign-press-centers/migration-policy-and-the-biden-harris-admins-root-causes-strategy; 
see also The White House, Fact Sheet: Strategy to Address the Root 
Causes of Migration in Central America (July 29, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/29/fact-sheet-strategy-to-address-the-root-causes-of-migration-in-central-america/.
---------------------------------------------------------------------------

    Second, the Departments disagree that, prior to implementation of 
the IFR, there had not been emergency circumstances at the southern 
border. During the immediate post-pandemic period, average daily 
encounters were at levels that significantly exceeded the Departments' 
capacity to impose consequences on most noncitizens who crossed 
irregularly at the southern border.\100\ As the June 3 Proclamation 
explains, the border security and immigration systems are badly 
strained and have been for many years. 89 FR at 48490. DHS processing 
facilities frequently become overcrowded, forcing DHS to release into 
the United States noncitizens who could otherwise be

[[Page 81181]]

processed for expedited removal, and place them into section 240 
removal proceedings, the resolution of which can take years given the 
pre-existing backlog. By the end of the first half of FY 2024, despite 
EOIR being on pace to complete a record number of cases during FY 2024 
and DHS maximizing expedited removal as much as resources allow, EOIR 
had received over 1 million initial receipts, some of which could have 
been processed for expedited removal had there been sufficient 
resources to do so, increasing the pending caseload before EOIR to over 
3.1 million cases.\101\ The Departments believe that releasing 
individuals who may otherwise be referred for expedited removal may 
inadvertently incentivize increased irregular migration and the 
exploitation of the asylum system, especially by human smugglers who 
encourage migrants to claim fear once they are encountered by USBP as 
it will allow them to remain in the United States for years pending 
resolution of their case and, where appropriate, removal. 88 FR at 
31326. Moreover, maximizing credible fear screening capacity pulls 
resources away from USCIS processing cases in the affirmative asylum 
backlog, which had reached over 1.25 million cases as of the third 
quarter of FY 2024.\102\ This vicious cycle is exactly the circumstance 
to which the rule is responding.\103\ The decrease in encounter levels 
after December 2023 was not an indication that emergency border 
circumstances had abated or the IFR was not warranted, because 
encounters remained well above the daily encounter thresholds that, as 
described above, the Departments determined reflect the existence of 
emergency border circumstances.\104\ See 89 FR at 48752. That DHS had 
anticipated an increase in migration absent the IFR was not a 
concession that the rule was unnecessary. Rather, that projection 
reflected the urgent need to take immediate action, without which 
encounters would have increased, and the emergency border circumstances 
that existed at the time that the IFR was issued would have continued 
to worsen. See 89 FR at 48726. Given that daily encounters persistently 
remain above 1,500--and could rise above 1,500 again, even if they 
decline for a time--the IFR is currently and will remain an important 
policy tool.
---------------------------------------------------------------------------

    \100\ OHSS analysis of July 2024 OHSS Persist Dataset (Summary 
Statistics tab) (reflecting that average daily encounters were over 
5,100 per day during the immediate post-pandemic period). From May 
12, 2023 through June 4, 2024, USBP referred a daily average of 
about 860 individuals encountered at the SWB into the expedited 
removal process. See id. (Imm Post-Pandemic ERCF tab).
    \101\ See EOIR, Adjudication Statistics: Pending Cases, New 
Cases, and Total Completions (Apr. 19, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline. Initial receipts equal 
removal, deportation, exclusions, asylum-only, and withholding only 
cases.
    \102\ USCIS, Asylum Division Monthly Statistics Report: Fiscal 
Year 2024 (July 23, 2024), https://www.uscis.gov/sites/default/files/document/reports/asylumfiscalyear2024todatestats_240630.xlsx.
    \103\ 89 FR at 48489 (``Our broken immigration system is 
directly contributing to the historic migration we are seeing 
throughout the Western Hemisphere, exacerbated by poor economic 
conditions, natural disasters, and general insecurity, and this 
fact, combined with inadequate resources to keep pace, has once 
again severely strained our capacity at the border. The result is a 
vicious cycle in which our United States Border Patrol facilities 
constantly risk overcrowding, our detention system has regularly 
been at capacity, and our asylum system remains backlogged and 
cannot deliver timely decisions, all of which spurs more people to 
make the dangerous journey north to the United States.'').
    \104\ OHSS analysis of July 2024 OHSS Persist Dataset and data 
downloaded from UIP on September 3, 2024. (Encounters FY2000-2024 
tab). With the exception of the pandemic period (March 2020-May 
2023), total SWB encounters for January 2024 and for FY 2024Q2 were 
the highest for the month of January and for Quarter 2 of the fiscal 
year since FY 2000, including over 4,000 average daily USBP 
encounters in January and nearly 5,000 in February (CBP SWB 
Encounter FY 2000-24 tab and Encounters FY2000-2024 tab). See also 
OHSS analysis of July 2024 OHSS Persist Dataset (USBP Encounters--
Holiday Dip tab) (showing that encounters tend to dip immediately 
after each New Year before increasing again by the end of January).
---------------------------------------------------------------------------

    Finally, the Departments disagree with one commenter's suggestion 
that the Departments are characterizing the situation at the southern 
border as an emergency to avoid complying with their legal obligations 
under the INA and certain court decisions. The commenter is incorrect 
because the rule is fully compliant with relevant provisions of the INA 
and applicable judicial decisions. For the reasons discussed in Section 
III.A.1 of this preamble, the rule is fully consistent with section 
208(a)(1) of the INA, 8 U.S.C. 1158(a)(1). Moreover, for the reasons 
discussed in Section III.C.1.a.i. of this preamble, the Departments 
also disagree that the rule conditions noncitizens' access to the 
credible fear process on the ability to obtain CBP One appointments in 
violation of section 235 of the INA, 8 U.S.C. 1225. Finally, for the 
reasons discussed in the IFR, see 89 FR at 48735-39, and Section III.A 
of this preamble, the Departments disagree with commenters' comparison 
between this rule and prior regulatory actions imposing a limitation on 
asylum eligibility that some courts have ruled unlawful.
    Comment: Several commenters argued that the Departments justified 
the rule using mischaracterizations of asylum grant rates resulting 
from positive credible fear determinations. Commenters took issue with 
the Departments' reference to a ``small proportion'' of noncitizens in 
the credible fear process who are likely to be granted asylum, stating 
that the Departments artificially deflated the grant rate by including 
cases where there was no decision on the merits--such as cases where 
the asylum application was withdrawn or not adjudicated, or the case 
was administratively closed--in calculating the proportion of cases 
where asylum was granted. Commenters argued that ```the majority of 
people who establish a credible fear of persecution are granted asylum' 
when their asylum claim is adjudicated,'' quoting a statistic claiming 
that 55 percent of noncitizens whose cases were decided on the basis of 
their asylum claim after a positive credible fear determination were 
ultimately granted asylum in FY 2022 and 2023.
    Commenters said that the EOIR denial rate in cases originating from 
a credible fear claim is an unreliable indicator of meritless asylum 
claims because a denial could result from factors that have nothing to 
do with the underlying merits of the case, including: noncitizens' lack 
of timely access to counsel, translation issues, noncitizens' lack of 
familiarity with the statutory 1-year bar to filling an asylum 
application after entering the United States, and the significant 
discretion provided to IJs by law.
    One commenter took issue with the Departments' claim that an 
increase in positive credible fear determinations was evidence that 
meritorious asylum claims were still making it through the initial 
screening process, saying that those subject to the Circumvention of 
Lawful Pathways rule's presumption of ineligibility for asylum are 
three times more likely to receive negative credible fear 
determinations than individuals not subject to the presumption. The 
commenter said it has documented examples of individuals subjected to 
the Circumvention of Lawful Pathways rule in expedited removal who were 
wrongfully ordered removed or refouled, outcomes that the commenter 
stated will only become more frequent under the IFR. The commenter 
concluded that the available evidence makes clear that many, if not 
most, people subject to the IFR will have plausible, or even grantable, 
claims for humanitarian relief.
    A commenter alleged that the Departments' focus on the gap between 
historical credible fear interview screen-in rates and asylum grant 
rates is ``willfully blind to reality.'' The commenter stated that the 
Departments ``simply ignore the fact that,'' even before the IFR, such 
screen-in rates had declined dramatically, and that historical asylum 
grant rates were for a

[[Page 81182]]

population of people seeking asylum that, by the IFR's own admission, 
looked very different--and included many more single Mexican men 
seeking to work--than the current population of people seeking asylum. 
The commenter further objected that the Departments' focus on the gap 
between screen-in rates and merits rates ignores the fact that credible 
fear interviews are intended to be evaluated at a lower standard; 
according to the commenter, a screening interview is not, and cannot 
be, a merits adjudication.
    Response: The Departments disagree that they have mischaracterized 
the data related to the percentage of EOIR asylum grants in cases 
originating from the credible fear process. The data consistently show 
that only a small percentage of cases referred for section 240 removal 
proceedings before EOIR after a credible fear determination ultimately 
result in a grant of asylum.\105\
---------------------------------------------------------------------------

    \105\ See, e.g., EOIR, Adjudication Statistics: Asylum Decisions 
in Cases Originating with a Credible Fear Claim (Apr. 19, 2024), 
https://www.justice.gov/eoir/media/1344831/dl?inline; see also OHSS 
analysis of June 2024 Enforcement Lifecycle data (Historic ERCF 
Results Tab)
---------------------------------------------------------------------------

    In the IFR, the Departments noted that from FY 2014 through FY 
2019, of the total SWB encounters with positive credible fear 
determinations, only 18 percent of EOIR case completions ultimately 
resulted in a grant of protection or relief. 89 FR at 48743 n. 219. The 
Departments included the underlying data in the IFR docket.\106\ The 
Departments acknowledge that the denominator includes cases where there 
was no decision on the merits of the asylum claim, such as, for 
example, applications that were withdrawn or not adjudicated, or where 
the case was administratively closed, terminated, or dismissed.\107\ 
The Departments disagree, however, that this approach is misleading. 
The cited statistic demonstrates that the number of noncitizens who are 
placed in section 240 removal proceedings after the expedited removal 
process greatly exceeds the number of noncitizens who are ultimately 
granted relief or protection. Even if one excludes cases involving 
termination, dismissal, or administrative closure as well as in 
absentia removal orders, DHS and EOIR data show that from 2014 through 
2019, of the total SWB encounters referred to EOIR after being 
processed for expedited removal, only 33 percent of EOIR case 
completions ultimately resulted in a grant of relief on the 
merits.\108\ The rate increases slightly to 36 percent if the ``relief 
rate'' is defined as all EOIR findings of non-removability and grants 
of asylum, statutory withholding of removal, CAT protection, 
cancellation of removal, and adjustment of status, divided by the sum 
of those grants and removal orders not issued in absentia.\109\ Whether 
one uses the 18 percent, 33 percent, or 36 percent figure, the data 
demonstrate that historically there is a significant disparity between 
positive credible fear findings and ultimate grants of relief in 
section 240 removal proceedings.\110\
---------------------------------------------------------------------------

    \106\ See OHSS Data Spreadsheet Data for Securing the Border 
IFR, tab 219 (June 2024), https://www.regulations.gov/document/USCIS-2024-0006-0003.
    \107\ See id.; see also OHSS analysis of June 2024 Enforcement 
Lifecycle data (Historic ERCF Results tab).
    \108\ Relief on merits rate is defined as EOIR grants of asylum, 
conditional grants of asylum, or adjustment of status under 
statutory provisions divided by the sum of those grants of relief 
plus removal orders not issued in absentia. OHSS analysis of June 
2024 Enforcement Lifecycle data (Historic ERCF Results tab).
    \109\ See id.
    \110\ See id.
---------------------------------------------------------------------------

    The Departments disagree with the statistical approach presented by 
at least one commenter who claimed that the majority of people (55 
percent in FY 2023 and 2024) who establish a credible fear are 
ultimately granted asylum when their asylum claim is adjudicated. The 
commenter seems to have arrived at this statistic by dividing the 
number of asylum grants by the total number of grants and denials from 
a chart provided on EOIR's website.\111\ But the EOIR chart also 
demonstrates that a large percentage of completed cases resulting from 
a positive credible fear determination involve noncitizens who never 
filed asylum applications once placed in section 240 removal 
proceedings or who abandoned or withdrew their applications.\112\ The 
Departments believe that it is inaccurate to exclude these cases in 
assessing the disparity between positive credible fear findings and 
ultimate relief because the noncitizens in these cases did not actually 
pursue an asylum claim during section 240 removal proceedings even 
though the opportunity to pursue such a claim was the sole reason they 
were placed in section 240 removal proceedings rather than being 
removed on an expedited removal order. Instead, relying on the most 
recent version of the EOIR chart cited by the commenter, if one 
includes these cases, which are numerous, in the denominator (and 
excludes cases where the asylum application was not adjudicated or the 
case was administratively closed), the ultimate grant rates for cases 
reflect a much smaller percentage than commenter's representation of 
the ultimate asylum grant rate. As EOIR's adjudication statistics 
reflect, the asylum grant rates of cases completed by EOIR in FYs 2022 
and 2023 that originated with a credible fear claim were just 23 
percent and 18 percent, respectively.\113\
---------------------------------------------------------------------------

    \111\ See Human Rights First, Correcting the Record: The Reality 
of U.S. Asylum Process and Outcomes (Nov. 2023) https://humanrightsfirst.org/wp-content/uploads/2023/11/US-Asylum-process-and-outcomes-Fact-Sheet_Nov-2023.pdf (citing EOIR, Adjudication 
Statistics: Asylum Decisions and Filing Rates in Cases Originating 
with a Credible Fear Claim (Oct. 12, 2023), https://www.justice.gov/eoir/page/file/1062976/download).
    \112\ See, e.g., EOIR, Adjudication Statistics: Asylum Decisions 
in Cases Originating with a Credible Fear Claim (Apr. 19, 2024), 
https://www.justice.gov/eoir/media/1344831/dl?inline (last visited 
Sept. 2, 2024).
    \113\ See id.
---------------------------------------------------------------------------

    The Departments cited these data to demonstrate the general point 
that there is a significant disparity between positive credible fear 
determinations and ultimate relief in section 240 removal proceedings, 
which can take years to resolve. See 89 FR at 48743 n.219 (noting that 
from FY 2014 through FY 2019, of the total SWB encounters with positive 
fear determinations, only 18 percent of EOIR case completions 
ultimately resulted in a grant of protection or relief). That reality, 
as well as the length of time it can take before a removal takes place 
after a removal order is final, creates a strong incentive for some 
number of migrants without potentially meritorious claims to make the 
dangerous journey to the southern border to claim fear in order to take 
their chances on being allowed to remain in the United States for a 
lengthy period. And that risk is magnified by Congress's failure to 
provide the resources necessary to timely and effectively process and 
interview all those who invoke credible fear procedures through the 
expedited removal process at the southern border, particularly during 
periods of high encounters. The rule's limitation on asylum eligibility 
is intended in part to reduce this incentive and encourage migrants 
with meritorious asylum claims to use the lawful, safe, and orderly 
pathways that the United States Government has provided. See 89 FR at 
48732.
    Regarding commenters' concerns that the data cited include 
noncitizens whose asylum applications may have been denied for reasons 
unrelated to the meritoriousness of their underlying claim--such as 
noncitizens' lack of access to counsel, translation issues, 
noncitizens' lack of knowledge about the one-year bar, and IJ 
discretion--the Departments disagree that these potential issues would 
undermine the Departments' reliance on DHS and EOIR

[[Page 81183]]

data to demonstrate the disparity between positive credible fear 
determinations and ultimate relief in section 240 removal proceedings. 
The factors cited by commenters exist in the absence of the rule and 
are not impacted by the rule. Furthermore, the Departments' procedures 
aimed at mitigating these concerns remain unchanged and are expected to 
continue mitigating those concerns. For example, all AOs are trained to 
elicit testimony and, even with this rule's changes to the credible 
fear screening process, the type of information sought to be elicited 
during a credible fear interview and IJ review is generally well within 
a noncitizen's knowledge, such that having an attorney is not necessary 
to secure a positive outcome. See Section III.B.2.a.ii of this 
preamble. USCIS also has language access policies in place to ensure 
that noncitizens have an interpreter for a language they understand 
during credible fear interviews and procedures to address 
interpretation and rare language issues. See 8 CFR 208.30(d)(5). 
Additionally, EOIR provides interpreters for noncitizens in section 240 
removal proceedings.\114\ Those long existing procedures remain in 
place under this rule. Nor have any of the procedural requirements for 
filing an asylum application changed, including the requirement that 
noncitizens must generally file their application within one year of 
their arrival in the United States, see section 208(a)(2)(B) of the 
INA, 8 U.S.C. 1158(a)(2)(B), and must show that they should be granted 
relief in the exercise of discretion. See Delgado v. Mukasey, 508 F.3d 
702, 705 (2d Cir. 2007) (``Asylum is a discretionary form of relief . . 
. Once an applicant has established eligibility . . . it remains within 
the Attorney General's discretion to deny asylum.'').
---------------------------------------------------------------------------

    \114\ See EOIR, Director's Memorandum 23-02, Language Access in 
Immigration Court 1-2 (June 6, 2023), https://www.justice.gov/eoir/book/file/1586686/dl.
---------------------------------------------------------------------------

    The Departments agree that credible fear screenings are not meant 
to mirror ultimate merits adjudications and that, by design, these 
screenings will result in some noncitizens being screened in who 
ultimately are not granted asylum or protection. However, the number of 
noncitizens who are granted asylum or other protection following a 
screening necessarily reflects the effectiveness of those screenings; 
the gap between the screen-in rate and the rate of those granted asylum 
or other protection matters. With a screening standard that is more 
likely to identify meritorious claims, the Departments expect to see a 
higher share of screened in noncitizens ultimately granted relief or 
protection. While a credible fear screening in the expedited removal 
process takes place shortly after entry into the United States, the 
ultimate adjudication of an asylum (or other protection) claim may be 
months or years later. The outcome of the screening compared with the 
outcome of the asylum application's ultimate adjudication on the merits 
is an important measure of the credible fear interview's effectiveness 
at ensuring that meritorious asylum claims proceed in the application 
process because only cases that could be viable should continue on in 
the process.
    Finally, the Departments acknowledge that, as with all screening 
mechanisms, there is some risk under the rule that a meritorious case 
might not proceed to a credible fear screening or a merits 
adjudication. The Departments believe that during emergency border 
circumstances, the rule's provisions strike an appropriate balance, and 
that the rule's benefits outweigh any potential marginal increase in 
the likelihood that a meritorious case would be missed or would fail 
under the rule's procedures, as discussed in more detail in Section 
III.C.3 of this preamble. The Departments reiterate that nothing in 
this rule prevents a noncitizen from raising a fear claim. All 
noncitizens processed for expedited removal who manifest a fear of 
return, express an intention to apply for asylum or protection, or 
express a fear of persecution or torture or a fear of return to their 
country or the country of removal are referred for a credible fear 
interview. For the reasons discussed in Section III.C.2 of this 
preamble, DHS believes that the manifestation standard will continue to 
provide noncitizens with an adequate opportunity to seek relief and 
protection in the United States. Moreover, under the rule, those 
referred for a credible fear screening will continue to have an 
opportunity to have their claims assessed by an AO in a non-adversarial 
interview and will be able to seek IJ review of the AO's decision. 
Although many noncitizens may be subject to the limitation on asylum 
eligibility under this rule, during the credible fear interview and IJ 
review (if elected), they will still be screened for potential 
eligibility for statutory withholding of removal and CAT protection. In 
sum, as explained in the IFR, the Departments expect that these 
provisions will continue to produce accurate outcomes, although the 
Departments believe that the rule continues to be necessary and 
appropriate to address emergency border circumstances even if this 
expectation turns out to be misplaced in close cases. 89 FR at 48750 
n.250.
    Indeed, as discussed in Section II.A.2 of this preamble, the 
Departments believe that the IFR is working to reduce the gap between 
high rates of referrals and screen-ins and the historically low 
percentage of those who are ultimately granted protection or relief, 
while still providing noncitizens with opportunities to raise and have 
their claims considered. The Departments believe that the difference 
between the positive credible fear rate during the pre-pandemic period 
and the rate under the IFR is attributable to the rule's limitation on 
asylum eligibility and the higher ``reasonable probability'' screening 
standard for statutory withholding of removal and CAT claims, which, as 
the Departments explained in the IFR, is more appropriate in light of 
the ultimate burden of proof for statutory withholding of removal and 
CAT protection, better captures the population of noncitizens with 
potentially valid claims for such protection, and will assist the 
Departments in addressing the emergency border circumstances described 
in the IFR. See 89 FR at 48745-46.
    Comment: At least one commenter argued that the IFR is arbitrary 
and capricious because the Departments impermissibly use the 
availability of pathways not related to asylum or humanitarian relief 
as justification for reducing asylum access. The commenter stated that 
the availability of lawful pathways is not a factor that Congress 
intended the agencies to consider as a basis for limiting asylum.
    Response: The Departments disagree with the assertion that the rule 
impermissibly relies on the availability of lawful, safe, and orderly 
pathways to reduce access to asylum. As an initial matter, the 
Departments note that the primary purpose of the rule's temporary 
limitation on asylum eligibility is to reduce the daily number of 
entrants by discouraging irregular migration during periods when the 
border security and immigration systems are over capacity and unable to 
effectively process noncitizens through expedited removal. See 89 FR at 
48731-32. Because section 3(b)(v)(D) of the Proclamation contains an 
exception for arrivals at the SWB under a process approved by the 
Secretary, and because this rule's limitation on asylum eligibility 
excepts those who are described in section 3(b) of the Proclamation, 
the limitation will also not apply to such arrivals. See id. at 48754. 
In this way, the Proclamation

[[Page 81184]]

and the rule continue to maintain incentives for noncitizens seeking 
protection to use the safe, lawful, and orderly process that the United 
States has provided. See id. at 48730-31 (stating that ``applying the 
limitation on asylum eligibility will encourage noncitizens to make an 
appointment to present at the SWB, take advantage of other lawful 
migration pathways, or not undertake the dangerous journey north to 
begin with''); see also id. at 48754 (explaining that the rule 
``provides important exceptions that continue to incentivize the use of 
safe, orderly, and lawful pathways''). Indeed, the use of such pathways 
and tools to access those pathways, like the CBP One app, is critical 
for promoting efficient border processing especially during emergency 
border circumstances. See id. at 48737 (``During emergency border 
circumstances [the] use of the CBP One app is especially critical 
because it allows DHS to maximize the use of its limited resources.'' 
(citations omitted)); see also 88 FR at 31317-18 (explaining the 
benefits of having noncitizens pre-schedule appointments using the CBP 
One app). However, contrary to the commenter's claim, the rule does not 
impose a limitation on asylum eligibility based solely on the 
availability of such pathways. Rather, the rule's limitation applies to 
noncitizens who enter the United States across the southern border 
during emergency border circumstances and are not described in section 
3(b) of the Proclamation. See 8 CFR 208.13(g), 208.35(a), 1208.13(g), 
1208.35(a). And even during these situations, the rule provides an 
exception for noncitizens (including those who do not use the lawful, 
safe, and orderly pathways) who demonstrate exceptionally compelling 
circumstances. See 8 CFR 208.35(a)(2), 1208.35(a)(2).
    In any event, Congress did not preclude the Departments from 
considering a noncitizen's use of lawful pathways and processes as a 
factor when establishing conditions and limitations on asylum. As 
described in Section III.A.1.a of this preamble, in Matter of Pula, the 
BIA explained that a noncitizen's ``circumvention of orderly refugee 
procedures,'' including their ``manner of entry or attempted entry,'' 
is a relevant factor for discretionary asylum determinations, 19 I&N 
Dec. at 472-73, and this rule merely takes such circumvention into 
account to determine eligibility. And exactly how much weight to put on 
that factor and whether to do so in weighing asylum eligibility falls 
well within the broad discretion conferred by section 208 of the INA, 8 
U.S.C. 1158, including section 208(b)(2)(C), 8 U.S.C. 1158(b)(2)(C). 
For the reasons discussed in Section III.A.1 of this preamble and in 
the IFR, see 89 FR at 48733-38, this rule's limitation on asylum 
eligibility is consistent with the statute, a proper exercise of the 
Departments' authority, and distinguishable from the prior regulations 
that some courts have found invalid.
    Comment: One commenter disagreed with the Departments' assertion 
that the IFR will undermine TCOs' ability to incentivize migrants to 
utilize irregular migration methods. The commenter argued that the IFR 
will instead have the opposite effect of forcing many migrants to use 
irregular routes, thus strengthening the organized smuggling operations 
and TCOs the agencies seek to combat. The commenter also argued that 
the IFR makes the ``bizarre assertion that new measures punishing 
vulnerable people are necessary because'' smuggling operations have 
ways to avoid existing asylum restrictions.
    Response: The Departments disagree that the IFR will incentivize 
irregular migration and thereby strengthen organized smuggling 
operations and TCOs. The IFR has enhanced the disincentives to crossing 
irregularly, reducing the overall number of encounters between POEs. 
Through August 31, 2024, average daily total encounters between POEs at 
the SWB under the Proclamation and the IFR have fallen 59 percent from 
the level of average daily encounters during the ``immediate post-
pandemic period,'' i.e., the period after the Circumvention of Lawful 
Pathways rule began to apply on May 12, 2023, and before the IFR 
entered into effect on June 5, 2024.\115\ This rule addresses the 
reality of unprecedented migratory flows, the systemic costs those 
flows impose, and the ways in which increasingly sophisticated 
smuggling networks cruelly exploit the system for financial gain. The 
procedures in place before the publication of the IFR resulted in the 
release of a high proportion of migrants into the United States to 
await section 240 removal proceedings, creating a vicious cycle in 
which exploitative smuggling networks could effectively advertise that 
border crossers were likely to remain in the United States upon 
arrival, encouraging higher encounter numbers, which in turn led to 
more releases. See 89 FR at 48714-15. This created a situation in which 
large numbers of migrants--regardless of their ultimate likelihood of 
success on an asylum or protection application--were subject to 
exploitation and risks to their lives by the networks that drove their 
movements north. See id. In contrast, the Departments believe that the 
reduction in migration resulting from this rule will, over time, weaken 
the TCOs that prey on migrants for profit by starving such TCOs of 
funding.
---------------------------------------------------------------------------

    \115\ OHSS analysis of July 2024 OHSS Persist Dataset and data 
downloaded from UIP on September 3, 2024. (Summary Statistics tab). 
There were, on average, 2,077 encounters per day (including all 
demographic groups) between POEs at the SWB from June 5 through 
August 31, 2024, compared to 5,119 per day during the immediate 
post-pandemic period, defined as May 12, 2023, through June 4, 2024. 
Id.
---------------------------------------------------------------------------

    The IFR does not ``punish[ ] vulnerable people,'' as the commenter 
alleges. The Departments explained that although heightened enforcement 
efforts by the United States and Mexico helped to mitigate very high 
levels of irregular migration, ``[s]muggling networks are adaptable, 
responding to changes put in place. Despite their immediate 
effectiveness, such changes [in enforcement efforts] are not enough--
and will almost certainly have diminished effect over time. The reality 
is that the scale of irregular migration over the past two years has 
strained the funding, personnel, and infrastructure of both countries' 
immigration enforcement systems in ways that have, at times, 
contributed to high encounters between POEs.'' 89 FR at 48726. The 
Departments further stated that ``[w]ithout the Proclamation and this 
rule, the anticipated increase in migration will, in turn, worsen 
significant strains on resources already experienced by the Departments 
and communities across the United States.'' Id.
    The rule is consistent with concern for vulnerable people and the 
Departments' operational capacity to administer and enforce the 
immigration laws. As a means of preventing migrants from falling prey 
to smuggling and other criminal organizations, the Departments have 
discouraged attempts to enter the United States without inspection 
while increasing the availability of lawful pathways. The limitation on 
asylum eligibility contained in the rule undercuts claims made to 
migrants by TCOs and smugglers that simply arriving at the border will 
result in them being released into the United States. Additionally, the 
Departments believe that increasing the availability of lawful pathways 
for migration helps discourage attempts to enter the United States 
without inspection by providing individuals with options that do not 
involve putting their lives in the hands of smugglers. The Departments 
believe that this balanced approach--expanded lawful pathways to enter 
the United

[[Page 81185]]

States, coupled with conditions on asylum eligibility for those who 
fail to exercise those pathways and the swift imposition of immigration 
consequences when individuals do not establish a legal basis to remain 
in the United States--will continue to decrease attempts to irregularly 
enter the United States, and thereby reduce reliance on smugglers and 
human traffickers.
    Comment: A commenter argued that the IFR fails to account for the 
effect of existing and contemporaneously promulgated policies, such as 
EOIR's ``recent arrivals docket.''
    Response: The IFR is one of several tools that the Departments 
employ to encourage the use of safe, orderly, and lawful processes for 
accessing the border and to maintain a manageable operational capacity 
to adequately deliver timely decisions and consequences to noncitizens 
encountered at the southern border who do not establish a legal basis 
to remain. The Departments are not aware of any evidence that the 
recent arrivals docket or any other recent procedural changes in case 
processing could have, on their own, addressed the record high levels 
of migration that the Departments have contended with in recent years. 
Such changes offer important efficiency benefits but by themselves do 
not adequately address problems such as the large number of non-
meritorious claims for asylum and related protection.
    For example, as the Departments announced on May 16, 2024, the 
recent arrivals docket applies to certain noncitizen single adults. 
\116\ For cases on the recent arrivals docket, IJs will generally aim 
to render a final decision within 180 days, which is substantially 
longer than the expedited removal process.\117\ The recent arrivals 
docket provides efficient case processing procedures for removal 
proceedings, which are, as a general matter, designed to be more 
comprehensive proceedings for the full adjudication of claims,\118\ as 
compared with expedited removal, which is designed to quickly screen 
out those who cannot demonstrate a sufficient likelihood of ultimate 
success on the merits. Thus, the recent arrivals docket is not as 
efficient as either expedited removal proceedings generally or 
expedited removal proceedings undertaken pursuant to this rule. 
Accordingly, the recent arrivals docket is best considered as a 
complementary measure to this rule for those who are not subject to or 
cannot be processed under expedited removal despite the resource-saving 
measures laid out in this rule. Similarly, while the Departments are 
constantly making efforts to maximize the efficiency of their 
procedures, all such changes are inadequate, on their own, to 
accommodate the high volumes of encounters that make this rule 
necessary.
---------------------------------------------------------------------------

    \116\ Press Release, DHS, DHS and DOJ Announce ``Recent 
Arrivals'' Docket Process for More Efficient Immigration Hearings 
(May 16, 2024), https://www.dhs.gov/news/2024/05/16/dhs-and-doj-announce-recent-arrivals-docket-process-more-efficient-immigration 
(``Recent Arrivals Docket Announcement'').
    \117\ Credible fear interviews generally take place close in 
time to when a noncitizen arrives in the United States. See INA 
235(b)(1)(B)(i), 8 U.S.C. 1225(b)(1)(B)(i) (providing that AOs 
``shall conduct interviews'' of noncitizens who indicate either an 
intention to apply for asylum or a fear of persecution ``at a port 
of entry or at such other place designated by the Attorney 
General''). If the noncitizen is not found to have a credible fear, 
the noncitizen may request review by an IJ, but such review must 
take place ``in no case later than 7 days after the date'' of the 
AO's determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). DHS data show a median processing time from 
credible fear referral to result of 8 days in the pre-pandemic 
period; 17 days during the pandemic period; 12 days during the 
immediate post-pandemic period; and 5 days during the IFR period. 
See OHSS analysis of July 2024 Persist Dataset and data downloaded 
from UIP on September 3, 2024 (Summary Statistics tab).
    \118\ Parties in section 240 removal proceedings have a wide 
range of well-established rights, including the following: the 
rights to representation at no expense to the Government, to a 
reasonable opportunity to examine and present evidence, and to 
cross-examine witnesses, INA 240(b)(4)(A)-(B), 8 U.S.C. 
1229a(b)(4)(A)-(B); the right to seek various forms of relief, 8 CFR 
1240.1(a)(1)(ii)-(iii); the right to file a motion to continue, 8 
CFR 1003.29; and the right to appeal specified decisions to the 
Board of Immigration Appeals (``BIA''), 8 CFR 1003.3(a), 1003.38(a), 
and to later file a petition for review of certain decisions in the 
appropriate U.S. Court of Appeals, see generally INA 242, 8 U.S.C. 
1252. For these reasons, the completion goals for cases on the 
recent arrivals docket remain subject to case-specific circumstances 
and procedural protections, including allowing time for noncitizens 
to seek representation where needed. See Recent Arrivals Docket 
Announcement.
---------------------------------------------------------------------------

    Comment: Citing 89 FR at 48724 nn.99-100 as an example, a commenter 
objected that the Departments' reliance on an undisclosed data analysis 
with unknown assumptions as a basis for projecting future trends is 
arbitrary.
    Response: The Departments included in the rulemaking docket 
extensive data supporting the IFR, including an explanation of 
assumptions underlying certain projections.\119\ As DHS explained in 
the IFR, the complexity of international migration limits DHS's ability 
to precisely project border encounters under the best of circumstances. 
See 89 FR at 48727 n.127. The period leading up to the IFR was 
characterized by greater than usual uncertainty due to ongoing changes 
in the major migration source countries (i.e., the shift in 
demographics of those noncitizens encountered by DHS), the growing 
impact of climate change on migration, political instability in several 
source countries, the evolving recovery from the COVID-19 pandemic, and 
uncertainty generated by border-related litigation, among other 
factors. Id. Nonetheless, the Departments included ample basis for 
their assessment that the IFR was needed and did not rely exclusively 
on internal projections as a basis for the rule. See, e.g., 89 FR at 
48726 (explaining that ``between January and April, 2024, [UNCHR] 
tracked 139,000 irregular entries [through the Dari[eacute]n jungle], 
up from 128,000 for the same months in 2023 and a seven-fold increase 
over migration levels during that period in 2022,'' and that ``[p]ast 
unprecedented migration surges [described in the IFR] bolster . . . the 
need for this rulemaking''). Further, the Departments note that they 
are including in the docket extensive data supporting this final rule, 
including data related to the impact of the IFR, the changes made in 
this final rule, and the request for comment discussed in Section IV of 
this preamble, as well as detailed explanations of certain projections.
---------------------------------------------------------------------------

    \119\ See OHSS Data Spreadsheet, Data for Securing the Border 
IFR (June 2024), https://www.regulations.gov/document/USCIS-2024-0006-0003.
---------------------------------------------------------------------------

b. Lack of Resources Does Not Justify the Rule
    Comment: Some commenters stated that the Departments' justification 
of the IFR based on the lack of resources and congressional funding 
needed to effectively and efficiently meet process demands for migrants 
and those in the U.S. asylum process is not a valid basis for the 
Departments' purportedly disregarding their legal obligations to 
migrants when managing asylum claims and upending the asylum system. A 
commenter similarly stated that resource constraints should have no 
relationship to the treatment of newly arriving migrants whose right to 
remain has not yet been assessed.
    Another commenter said that the IFR is arbitrary and capricious 
because, while the agencies argue that the IFR is required because of a 
lack of funding, they provided no analysis to justify that conclusion. 
The commenter stated that the primary reason USCIS lacks enough AOs is 
that USCIS faces challenges with hiring and retention. The commenter 
stated that the agency underpays officers, forces them to work 60-hour 
weeks, and routinely requires them to apply new and illegal 
requirements in credible fear interviews, all while ignoring their 
primary duty of

[[Page 81186]]

conducting asylum adjudications. The commenter stated that CBP has the 
ability under current resources to greatly expand its capacity at POEs, 
but that CBP and DHS simply refuse to take that step. Another commenter 
similarly said that the IFR repeatedly invokes resource constraints as 
the reason to deny access to asylum, yet CBP is the nation's largest 
Federal law enforcement agency, and it has ``seriously understated'' 
its processing capacity in the past. A few commenters said that real 
solutions to alleviate conditions at the southern border include 
operational efficiency, better resource allocation, and increasing 
resources to meet demand and fairly process applications.
    One commenter said the rule is motivated by the Departments' 
concern that too many people are seeking asylum, rather than whether 
individuals are eligible. Further, this commenter wrote that, without 
any monitoring of the consequences of removal, it is unclear if the 
IFR's supposed efficiency is in the best interests of the United 
States, which include a commitment to upholding human rights and 
providing humanitarian aid.
    Response: With respect to the claim that the rule's reliance on 
resource and funding constraints and efficiency concerns are 
impermissible bases to disregard legal obligations to migrants seeking 
asylum and protection, the Departments first reiterate that the rule 
does not violate any legal obligations to migrants, as explained in 
Section III.A.1 of this preamble and in the IFR. See 89 FR at 48733-39. 
This rule is consistent with U.S. domestic law and with the United 
States's treaty obligations. The United States implements its non-
refoulement obligations through statutory withholding of removal and 
CAT protection. Even when the threshold for emergency border 
circumstances has been reached, these forms of protection remain 
available. From June 5, 2024, through August 31, 2024, 27 percent of 
those encountered between ports of entry at the SWB and placed into 
expedited removal were referred for a credible fear interview, and over 
half of individuals referred for credible fear interviews under the IFR 
have ultimately been screened in.\120\ Those who have not received such 
determinations have either been determined to have not manifested a 
fear of removal or have been determined to have not shown a significant 
possibility that they could ultimately demonstrate by a preponderance 
of the evidence eligibility for asylum in light of the rule's 
limitation on asylum eligibility or a reasonable probability of 
persecution or torture.
---------------------------------------------------------------------------

    \120\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab and IFR ERCF tab).
---------------------------------------------------------------------------

    In addition, the Departments disagree with commenters' assertion 
that it is impermissible to consider resource constraints and lack of 
funding as supporting the need for the IFR and this rule. Congress 
provided the Departments with broad discretionary authority under 
section 208 of the INA, 8 U.S.C. 1158, including expressly conferring 
discretion to impose limitations on asylum eligibility. INA 
208(b)(1)(A), (b)(2)(C), (d)(5)(B), 8 U.S.C. 1158(b)(1)(A), (b)(2)(C), 
(d)(5)(B). Nothing in the INA explicitly or implicitly forecloses the 
Departments from considering the impact of resource constraints when 
exercising their discretionary authorities. For this reason, as 
explained in Section II.A.1 of this preamble and in the IFR, see 89 FR 
at 48731-49, the rule's changes to certain expedited removal procedures 
and the credible fear process are a lawful exercise of the Departments' 
authorities and are consistent with the INA.
    Indeed, resources and funding cannot be separated from the safe, 
effective, and humane enforcement and administration of our immigration 
laws. The Departments can only function with the resources provided to 
them by Congress. While the Departments carefully utilize the resources 
that they are given, they are inadequate in the face of substantial and 
unprecedented global migration. As explained in the IFR, these 
constraints prevent the border and immigration systems from properly 
functioning to provide timely relief for those who warrant it and 
timely consequences for those without a legal basis to remain when 
encounters reach the thresholds identified in the rule. See 89 FR at 
48730 (discussing the impact of resource limitations); see also id. at 
48752 (explaining that ``[g]iven current resources[ ] . . . there is a 
limit on how many people can be put through the process--and that limit 
directly informs the 1,500 threshold'').
    The rule is carefully tailored to address these challenges and is 
therefore a reasonable exercise of the Departments' discretionary 
authorities. By shifting to a manifestation standard for fear claims, 
and heightening the screening standard for withholding and CAT 
protection, DHS will be able to devote more of its limited resources to 
more effectively and quickly processing migrants, and the Departments 
will be able to focus on those claims that are more likely to have 
merit. See id. at 48744-45. The limitation on asylum eligibility 
disincentivizes attempts at entry, thereby easing stress on DHS 
resources, while also providing an efficient way to address claims of 
fear raised by individuals who do not fall within the exception to the 
limitation. See 89 FR at 48731-33. At the same time, the rule does not 
foreclose asylum eligibility for noncitizens who are in circumstances 
that require immediate action: It includes an exception for 
exceptionally compelling circumstances, including for noncitizens (or 
members of their families with whom they are traveling) who experience 
an acute medical emergency, face an imminent and extreme threat to life 
or safety, or are a ``victim of a severe form of trafficking in 
persons.'' See 89 FR at 48732-33. And those referred to the credible 
fear process will continue to be screened for potential eligibility for 
statutory withholding of removal and protection under the CAT. Thus, 
the rule allows the Departments to use their limited resources more 
effectively to administer and enforce the nation's immigration laws, 
while also reducing incentives for migrants to make the dangerous 
journey to the southern border in the hope that the overwhelmed and 
under-resourced immigration system will not be able to expeditiously 
process them for removal. In sum, the rule is needed to support the 
effective ``operation of the immigration system'' during emergency 
border circumstances. Judulang v. Holder, 565 U.S. 42, 55 (2011).
    Contrary to commenters' claim, the IFR fully explains the funding 
shortfall facing the Departments and how it has severely hampered their 
abilities to effectively and efficiently process noncitizens at the 
southern border and deliver timely decisions and consequences to those 
without a legal basis to remain. See 89 FR at 48728-30. Under current 
appropriations, DHS will, at best, be able only to sustain most of its 
current operations and will not be able to expand capacity along the 
southern border or increase its ability to deliver consequences through 
referrals into expedited removal. See id. at 48729. Because of the 
funding shortfall, in the circumstances in which the measures enacted 
by this rule apply, DHS simply lacks sufficient personnel and facility 
resources to safely detain a majority of border crossers for the time 
needed to complete the expedited removal process, which forces DHS to 
release noncitizens pending prolonged processing pathways outside of 
expedited removal. See id. at 48752. This renders DHS unable to swiftly 
process migrants and impose

[[Page 81187]]

consequences on those who fail to establish a legal basis to remain in 
the United States, which in turn leads to higher encounter rates. See 
id.
    These resource constraints are not unique to front-line officials. 
In recent years, EOIR adjudicators have completed a record number of 
cases.\121\ However, the drastic increase in the number of newly 
initiated cases--composed in large part of cases that could have been 
processed through expedited removal if DHS resources allowed, id. at 
48751 (``Due to its resource constraints, the majority of individuals 
USBP encountered since May 11, 2023, were ultimately placed in section 
240 removal proceedings[.]'')--has significantly outpaced even these 
record numbers of case completions, thus increasing the pending 
caseload before EOIR.\122\
---------------------------------------------------------------------------

    \121\ See EOIR, Adjudication Statistics: New Cases and Total 
Completions (Apr. 19, 2024), https://www.justice.gov/eoir/media/1344796/dl?inline; see also 89 FR at 48751 (noting that due to its 
resource constraints, ``the majority of individuals USBP encountered 
since May 11, 2023, were ultimately placed in section 240 removal 
proceedings[]'' (footnote omitted)).
    \122\ Id.
---------------------------------------------------------------------------

    Similarly, USCIS has experienced a dramatic increase in credible 
fear referrals. USCIS received an estimated 137,000 credible fear 
referrals resulting from SWB encounters in FY 2023, up from an average 
of about 52,000 from 2010 to 2019 and an average of about 5,700 from 
2005 to 2009.\123\ However, as the Departments explained in the IFR, 
USCIS does not have enough AOs to keep pace with the number of 
noncitizens who could be referred for credible fear interviews, much 
less keep pace with new affirmative asylum receipts or the existing 
affirmative backlog. 89 FR at 48730. The USCIS affirmative asylum 
application backlog has reached over 1.25 million cases.\124\ Despite 
its growing affirmative asylum backlog, USCIS must continue to assign 
AOs to certain caseloads (some of which are included in the affirmative 
asylum backlog and some of which are not) that must be staffed to meet 
processing time frames established by statute, regulation, settlement 
agreement, court order, or litigation need, including: reasonable fear 
screenings; Operation Allies Welcome affirmative asylum cases; 
affirmative asylum cases subject to litigation; and Safe Third Country 
Agreement screenings. With a focus on credible fear screenings and 
while having to address the required caseloads mentioned above, AOs are 
unavailable to fully support efforts to reduce the affirmative asylum 
backlog. If there is a surge in credible fear referrals, USCIS would be 
forced to detail and train additional staff from other parts of the 
agency, further affecting the overall immigration system.
---------------------------------------------------------------------------

    \123\ See OHSS analysis of Asylum Pre-Screening Officer 
(``APSO'') Global and OHSS Persist Datasets current as of June 30, 
2024 (Historic CFIs tab).
    \124\ USCIS, Asylum Division Monthly Statistics Report. Fiscal 
Year 2024. June 2024 (July 23, 2024), https://www.uscis.gov/sites/default/files/document/reports/asylumfiscalyear2024todatestats_240630.xlsx.
---------------------------------------------------------------------------

    USCIS has filled 850 out of 1,011 available AO positions as of 
August 15, 2024. USCIS is working diligently to avoid a gap between the 
number of AOs on board and the number of available positions, but some 
gap in these numbers persists, in part due to the time it takes to hire 
and receive security clearances for individuals to come on board as 
AOs. As of August 15, 2024, USCIS has a total of approximately 702 
permanent AOs fully trained and certified to complete its workloads, 
including credible fear screening, reasonable fear screening, and 
affirmative asylum adjudication. Given that the ebb and flow of hiring 
and the number of credible fear referrals prior to the implementation 
of the IFR required far more officers to maintain pace, USCIS has 
trained staff members from across the agency to serve temporarily on 
detail as AOs and conduct credible fear interviews consistent with the 
statute. INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E). As of August 15, 
2024, USCIS had a total of 807 credible fear trained AOs (702 permanent 
staff and 105 detailees, who are trained to conduct credible fear 
screenings only). Given the need to address the Departments' various 
required workloads mentioned above, 511 AOs are currently assigned to 
work exclusively on credible fear cases. With this number of available 
AOs and accounting for some fluctuation, USCIS can generally complete 
credible fear determinations for an average of 650 individuals daily 
Monday through Friday and an average of 200 individuals daily on 
Saturday and Sunday. Workload priorities related to border enforcement, 
statutory requirements, and litigation obligations, along with 
insufficient resourcing allocations from Congress, continue to affect 
USCIS's ability to staff at appropriate levels. Accordingly, these 
funding shortfalls, combined with high encounter levels at the southern 
border, necessitate this rule's limitation on asylum eligibility and 
its changes to the credible fear referral process and screening 
standard for statutory withholding of removal and CAT protection to 
ensure the Departments are able to deliver timely decisions and 
consequences using the resources provided. See 89 FR at 48729-31.
    DHS disagrees with the claim that USCIS's resource challenges are 
due to hiring and staff retention problems caused by working conditions 
and underpay, rather than Congress's failure to provide the agency with 
sufficient resources. Resource challenges at USCIS are not a novel 
issue. Nearly 96 percent of USCIS's funding is from filing fees, not 
from congressional appropriations. Fees for adjudication and 
naturalization services are set at a level to ``ensure recovery of the 
full costs of providing all such services, including the costs of 
similar services provided without charge to asylum applicants or other 
immigrants.'' INA 286(m), 8 U.S.C. 1356(m). On April 1, 2024, DHS 
implemented a new fee schedule for USCIS-processed immigration 
benefits, which will generate approximately an additional $1 billion 
annually; the schedule includes a new asylum program surcharge for 
employment-based petitioners. 89 FR 6194, 6205, 6391 (Jan. 31, 2024). 
While the new fee rule does provide for increased funding for the 
Refugee, Asylum, and International Operations Directorate,\125\ keeping 
pace with USCIS's protection screening and affirmative asylum workloads 
requires additional funding, as reflected in the President's FY 2025 
Budget.\126\ As DHS explained in proposing the new fee schedule, the 
new fee schedule was created based on historical data and the 
additional funding provided by the new fee schedule may not be 
sufficient to cover the increased costs of the asylum program, 
including credible fear processing, if encounters exceed historic 
rates. 88 FR 402, 432-38 (Jan. 4, 2023). Even with the very limited 
appropriations provided by Congress to USCIS, the President's budget 
requests demonstrate the need to supplement USCIS's ability to address 
credible fear screenings. The President's FY 2024 budget request to 
Congress sought funds necessary to complete up to 150,000

[[Page 81188]]

credible fear determinations.\127\ A supplemental request in October 
2023 sought congressional funding for 1,600 AOs.\128\ Congress failed 
to provide resources to address credible fear screenings with respect 
to these appropriation requests. Raising fees on other applications and 
petitions to cover the $755 million that would be required to hire and 
support the additional 1,600 AOs called for in the President's 2025 FY 
Budget \129\ would impose a burden on other filers. See 89 FR at 48729. 
USCIS takes workforce retention seriously, but any concern about pay, 
hours, or workload does not obviate the systemic obstacles in running 
an underfunded program with limited resources.
---------------------------------------------------------------------------

    \125\ DHS, Immigration Examinations Fee Account: Fee Review 
Supporting Documentation with Addendum 53 (Nov. 2023), https://www.regulations.gov/document/USCIS-2021-0010-8176.
    \126\ See The White House, Fact Sheet: The President's Budget 
Secures Our Border, Combats Fentanyl Trafficking, and Calls on 
Congress to Enact Critical Immigration Reform (Mar. 11, 2024), 
https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/11/fact-sheet-the-presidents-budget-secures-our-border-combats-fentanyl-trafficking-and-calls-on-congress-to-enact-critical-immigration-reform/.
    \127\ See DHS, FY 2024 Budget-in-Brief 74 (2024), https://www.dhs.gov/publication/fy-2024-budget-brief (last visited Sep. 3, 
2024).
    \128\ See The White House, Fact Sheet: White House Calls on 
Congress to Advance Critical National Security Priorities (Oct. 20, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/20/fact-sheet-white-house-calls-on-congress-to-advance-critical-national-security-priorities/.
    \129\ See The White House, Fact Sheet: The President's Budget 
Secures Our Border, Combats Fentanyl Trafficking, and Calls on 
Congress to Enact Critical Immigration Reform (Mar. 11, 2024), 
https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/11/fact-sheet-the-presidents-budget-secures-our-border-combats-fentanyl-trafficking-and-calls-on-congress-to-enact-critical-immigration-reform/.
---------------------------------------------------------------------------

    With regard to the specific comments regarding CBP's ability and 
capacity to process noncitizens at POEs on the SWB, DHS disagrees that 
it has the resources to meaningfully expand that capacity under current 
conditions. CBP has finite resources available at POEs, all of which 
must be distributed both to processing of noncitizens and to 
implementing CBP's other priority missions, including facilitating 
lawful trade and travel and protecting national security 
interests.\130\ That said, CBP has taken steps to increase the number 
of noncitizens processed at POEs, including through tools such as the 
CBP One app, which has helped CBP to maximize its limited resources as 
it permits noncitizens to pre-schedule appointments and mitigates long 
waiting times at POEs.\131\ The Departments welcome additional 
resources from Congress, but must respond to emergency border 
circumstances with the resources currently available.\132\
---------------------------------------------------------------------------

    \130\ See, e.g., Memorandum for William A. Ferrara, Exec. Ass't 
Comm'r, Off. of Field Operations, CBP, from Troy A. Miller, Acting 
Comm'r, CBP, Re: Guidance for Management and Processing of 
Undocumented Noncitizens at Southwest Border Land Ports of Entry 
(Nov. 1, 2021), https://www.cbp.gov/document/guidance/guidance-management-and-processing-undocumented-non-citizens-southwest-border-land.
    \131\ Id. During the pre-pandemic period, CBP's Office of Field 
Operations (``OFO'') processed around 330 people per day. From 
January 2023 (when CBP opened CBP One for direct scheduling) through 
August 31, 2024, OFO has processed approximately four-and-a-half 
times that number of people daily. See OHSS analysis of July 2024 
OHSS Persist Dataset and data downloaded from UIP on September 3, 
2024 (OFO Encounters tab).
    \132\ See Letter for the Hon. Patrick McHenry, Speaker Pro 
Tempore of the U.S. House of Representatives, from Shalanda D. 
Young, Dir., Off. of Mgmt. & Budget, Re: Critical National Security 
Funding Needs for FY 2024 (Oct. 20, 2023), https://www.whitehouse.gov/omb/briefing-room/2023/10/20/letter-regarding-critical-national-security-funding-needs-for-fy-2024/(``This request 
includes resources for an additional 1,300 border patrol agents to 
work alongside the 20,200 agents already funded in the FY2024 
Budget; 375 immigration judge teams to strengthen the immigration 
court system--the largest incremental request ever; [and] 1,600 
asylum officers to speed up processing of asylum claims[.]'').
---------------------------------------------------------------------------

    Finally, the Departments disagree that this rule is motivated by a 
concern that too many people are seeking asylum. The rule is intended 
to address the very high levels of irregular migration that the 
Departments have recently observed, without discouraging those with 
valid claims from applying for asylum or other protection. By managing 
flows more effectively, the rule will help ensure the continued 
effective, humane, and efficient processing of migrants who arrive at 
the southern border during emergency border circumstances.
    Moreover, the Departments disagree with the suggestion that the 
rule is not in the best interests of the United States. On June 3, 
2024, the President signed a Proclamation under sections 212(f) and 
215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), finding that because 
the border security and immigration systems of the United States were 
unduly strained, the entry into the United States of certain categories 
of noncitizens was detrimental to the interests of the United States, 
and suspending and limiting the entry of such noncitizens. 89 FR at 
48490-91. The Departments determined that the IFR was necessary to 
respond to the emergency border circumstances discussed in the 
Proclamation. Id. at 48715. Exercising their authorities, including 
under section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), the 
Secretary and the Attorney General determined that during emergency 
border circumstances, it is in the ``best interests of the country . . 
. to limit asylum eligibility for those who enter in violation of the 
Proclamation, which, in turn, will allow the Departments to allocate 
their limited resources to prioritize processing of noncitizens who do 
not enter in violation of it.'' Id. at 48737 (alteration, citation, and 
internal quotation marks omitted). At this time, the Secretary and the 
Attorney General continue to believe that this rule's limitation on 
asylum eligibility is in the best interests of the United States and 
that it should continue to apply, while encounter levels remain above 
the thresholds in the rule (i.e., during emergency border 
circumstances), to noncitizens who enter across the southern border and 
who are not described in section 3(b) of the Proclamation, unless such 
noncitizens demonstrate that exceptionally compelling circumstances 
exist.
    The Departments further disagree with the assertion of commenters 
that, without monitoring the consequences of removal, it is unclear if 
the IFR's improvement to systemic efficiency is in the best interests 
of the United States. The Departments believe that the present 
rulemaking strikes the appropriate balance between facilitating 
efficiency during times when emergency border circumstances are present 
and upholding the commitment of the United States to protecting human 
rights and honoring its non-refoulement obligations. Indeed, the 
credible fear screening process itself is designed to make a case-by-
case determination related to the consequences of removal and whether 
those potential consequences warrant allowing a noncitizen to remain in 
the United States to pursue an asylum or related protection claim. 
While it is not feasible for the United States to monitor the exact 
consequences of removal in every individual case, AOs and IJs routinely 
use country conditions information, including Department of State 
Country Reports on Human Rights Practices, to inform their evaluation 
of potential consequences of removal as part of the credible fear 
determination, as part of their statutory obligation to consider ``such 
other facts as are known'' to them in the credible fear of persecution 
determination (INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v)); 
likewise, they are required by regulation to consider ``evidence of 
gross, flagrant or mass violations of human rights within the country 
of removal'' and ``any other relevant information regarding conditions 
in the country of removal'' in any evaluation of protection under the 
CAT, 8 CFR 208.16(c)(3)(iii)-(iv).\133\ The

[[Page 81189]]

present rulemaking does not change the types of evidence AOs and IJs 
rely on, such as human rights monitoring reports relating to the 
potential consequences of removal to a particular country, in making 
credible fear determinations at the higher ``reasonable probability'' 
of persecution or torture standard.
---------------------------------------------------------------------------

    \133\ USCIS RAIO Directorate, Officer Training: Credible Fear of 
Persecution and Torture Determinations 19-20 (May 9, 2024) 
(``Additionally, pursuant to the statutory definition of `credible 
fear of persecution,' the asylum officer must take account of `such 
other facts as are known to the officer.' Such `other facts' include 
relevant country conditions information. Similarly, country 
conditions information should be considered when evaluating a 
credible fear of torture. The Convention Against Torture and 
implementing regulations require consideration of `[e]vidence of 
gross, flagrant or mass violations of human rights within the 
country of removal, where applicable; and [o]ther relevant 
information regarding conditions in the country of removal.' '' 
(quoting 8 CFR 208.16(c)(3)(iii)-(iv))).
---------------------------------------------------------------------------

c. Rule Does Not Acknowledge Factors Contributing to Migration
    Comment: Some commenters argued that the Departments failed to 
analyze to what extent migration patterns are shaped by U.S. 
immigration enforcement system incentive structures relative to other 
factors, such as the many reasons people are forced to flee their 
homes.
    These commenters disagreed with what they characterized as the 
Departments' decision to impose further consequences on individuals 
seeking protection. Some commenters argued that many factors contribute 
to the number of border encounters, including dire conditions in 
migrants' countries of origin and their personal circumstances, and 
that while the IFR acknowledges that various push factors such as 
violence, persecution, poverty, human rights abuses, climate change, 
and others contribute to current migratory patterns, it does not fully 
engage with them and instead ``assumes, without foundation, that the 
perceived incentives, responsive to U.S. enforcement measures, single-
handedly shape migration patterns,'' despite ample United States 
Government and academic analyses that demonstrate that U.S. enforcement 
measures are only one of several factors informing patterns of 
migration.
    Similarly, another commenter stated that, although the IFR asserts 
that insufficient enforcement leads to high encounter levels, it is 
more plausible that the world is experiencing high levels of 
displacement and international migration and that the United States is 
a desirable destination for migrants. The commenter added that such 
global pressures would be more productively met with policies that 
directly address the desire, ability, and opportunities for people to 
migrate, rather than imposing harsher enforcement.
    Response: The Departments agree that many factors that are outside 
the U.S. Government's control influence migration patterns, including 
push factors. The Departments have never asserted that U.S. enforcement 
measures singlehandedly shape migration patterns. Economic and 
political instability around the world is fueling the highest levels of 
migration since World War II, including in the Western Hemisphere. 88 
FR at 11704. However, the effects of these factors and U.S. immigration 
enforcement are complementary to each other. They can both 
simultaneously and separately influence migrants' decisions regarding 
when, how, and where to migrate. The Departments believe that ensuring 
the timely enforcement of consequences for noncitizens who enter the 
United States irregularly without a legal basis to remain in the United 
States is a powerful tool for addressing the situation at the southern 
border, particularly when combined with the expanded availability of 
lawful pathways. This view is supported by the success of the IFR in 
reducing levels of irregular migration as further discussed in Section 
II.A.2 of this preamble. Timely enforcement of consequences is but one 
approach to respond to the specific issue of incentivizing the use of 
lawful, safe, and orderly pathways and disincentivizing migrants from 
utilizing dangerous, irregular migration routes along the southern 
border. This rule was designed to address encounters on our SWB, not to 
singlehandedly reshape migration patterns throughout the region.
d. Other Comments Related to the Departments' Justification
    Comment: Commenters suggested that high encounter levels are due to 
the Biden Administration's border security and immigration regulatory 
and policy efforts. One commenter disagreed with the Departments' 
assigning blame for the border crisis to Congress's failure to 
appropriate additional funding to the Departments, instead stating that 
it is the Administration's consistent ``abdication of border security 
and immigration enforcement[]'' that has resulted in the sustained high 
rate of encounters since 2021. The commenter said DHS must implement 
additional deterrence policies to discourage ``illegal immigration'' 
across the SWB.
    Response: The Departments disagree that the Administration's 
regulatory and policy efforts have led to the emergency border 
circumstances. Rather, the Departments believe that the COVID-19 global 
pandemic upended travel throughout the world, forcing many noncitizens 
to delay their journeys to the United States. This was further 
exacerbated by the implementation of the Title 42 public health Order, 
which quickly expelled noncitizens who were crossing the border back 
into Mexico without applying an immigration consequence. See 88 FR at 
31335 (discussing lack of immigration consequences associated with 
expulsions under the Title 42 public health Order). These factors 
contributed greatly to the significant surge in migration immediately 
following the end of the COVID-19 pandemic period. Since 2021, the 
United States Government has taken a series of significant steps to 
strengthen consequences for irregular entry at the southern border in 
response to record levels of encounters there. The Circumvention of 
Lawful Pathways rule created disincentives for irregular border 
crossings and is a critical component of the Government's regional 
strategy. DHS also put in place complementary measures to streamline 
expedited removal processing to more quickly apply consequences to 
those who fail to use lawful, safe, and orderly pathways. These 
measures include holding noncitizens processed for expedited removal 
for the pendency of their credible fear interviews in CBP facilities to 
maximize the use of expedited removal.\134\ In the immediate post-
pandemic period, DHS maximized the use of expedited removal given its 
limited resources, placing an average of 900 individuals encountered 
between POEs at the SWB into the process each day between May 12, 2023, 
and June 4, 2024, and conducting an average of 490 credible fear 
interviews daily, both of which are record highs.\135\ Between May 12, 
2023, and June 4, 2024, DHS removed or returned more than 794,000 
noncitizens who did not have a legal basis to remain in the United 
States, the majority of whom crossed the SWB.\136\ Average daily 
removals and returns during the immediate post-pandemic period exceeded 
daily rates for every FY since 2010.\137\ The majority of all 
individuals encountered at the SWB from FY 2021 to FY 2023 were 
removed, returned, or expelled.\138\
---------------------------------------------------------------------------

    \134\ See Decl. of Blas Nu[ntilde]ez-Neto ] 20, M.A. v. 
Mayorkas, No. 23-cv-1843 (D.D.C. Oct. 27, 2023) (Dkt. 53-1).
    \135\ OHSS analysis of June 2024 Enforcement Lifecycle data 
(Immediate Post-Pandemic ERCF tab); OHSS analysis of APSO Global and 
OHSS Persist Datasets (Historic CFIs tab).
    \136\ Id.
    \137\ OHSS 2022 Yearbook of Immigration Statistics (OHSS YB 
Table 39 tab) (listing past repatriations).
    \138\ OHSS analysis of June 2024 Enforcement Lifecycle data 
(Enforcement Lifecycle 6.2024 tab).
---------------------------------------------------------------------------

    Unfortunately, despite maximizing the usage of resources available 
to the Departments, these efforts have not been as effective as they 
could have been had Congress provided the tools and resources needed to 
address substantial

[[Page 81190]]

levels of migration impacting the southern border. Encounter levels 
increased toward the end of 2023,\139\ and December 2023 saw the 
highest level of encounters between POEs in history,\140\ as increasing 
numbers of people migrated through the Western Hemisphere. 89 FR at 
48713. The Departments' inability, given a lack of sufficient 
resources, to deliver timely decisions and consequences through 
expedited removal for those without a legal basis to remain creates 
incentives for further irregular migration and creates further strain 
on the border security and immigration systems. See id. at 48713-14. 
The IFR was needed to respond to this emergency situation, and it is 
having its intended effect as discussed in Section II.A.2 of this 
preamble. However, only Congress can provide the resources and 
authorities that the Departments need to ensure durable solutions to 
heightened levels of global migration and the impact it has on the 
border security and immigration systems.
---------------------------------------------------------------------------

    \139\ OHSS analysis of July 2024 OHSS Persist Dataset and data 
downloaded from UIP August 6, 2024, for July 2024 (Encounters FY 
2000-2024 tab).
    \140\ Id.
---------------------------------------------------------------------------

B. General Feedback on the IFR

1. General Support
    Comment: Some commenters approved of the rule's limitation on 
asylum eligibility, reasoning that the U.S. asylum system is being 
``abused'' and ``exploit[ed].'' A commenter stated that the Federal 
Government should stop permitting undocumented immigrants to stay in 
the country while their asylum claims are processed, as many exploit 
the system to remain for years, and that daily border crossings pose 
national security risks. That commenter also stated that the United 
States has housing and job shortages, so allowing immigrants to take 
housing and jobs is hurting America. Another commenter thanked the 
Departments for implementing this rule and asked that all enforcement 
mechanisms be deployed to uphold it.
    Response: The Departments agree that maintaining border security is 
critical and that the rule will have benefits for the U.S. border 
security and immigration systems. Specifically, the United States 
Government has better ensured timely decisions and consequences for 
irregular entry at the border, while at the same time overseeing the 
largest expansion of lawful, safe, and orderly pathways and processes 
for individuals to come to the United States in decades. See, e.g., 89 
FR at 48712-13; id. at 48721-26 (discussing the increase in migration 
at the SWB, consistent with global trends and regional United States 
Government efforts); 88 FR at 11716-18 (discussing United States 
Government measures to offer alternative pathways to address the root 
causes of migration, improve the asylum system, and address the 
pernicious role of smugglers). This approach has allowed DHS to process 
noncitizens arriving at the southern border for removal in record 
numbers and with record efficiency. 89 FR at 48713, 48727.
    This rule has improved DHS's ability to place into expedited 
removal the majority of single adults and individuals in family units 
encountered by USBP at the SWB and to swiftly issue decisions and 
impose consequences that have proven effective to disincentivize 
noncitizens who do not have a strong claim for asylum or other 
protection from entering the United States to pursue such claims. See 
Section II.A.2 of this preamble; see also 89 FR at 48746. This rule is 
also designed to identify more effectively those with a fear of return, 
and, for noncitizens who have manifested or expressed a fear of return, 
to screen out and swiftly remove those whose claims have a low 
likelihood of succeeding on the merits. See 89 FR at 48743-46. As a 
result, the Departments believe that this rule will also improve the 
overall functioning and efficiency of the immigration system by 
reducing strains on EOIR and USCIS resources and allowing DHS to remove 
more noncitizens through expedited removal, rather than adding them to 
the backlogged immigration courts.
2. General Opposition
a. Negative Impacts on Noncitizens and Others
i. Conflicts with Humanitarian Values
    Comment: Several commenters expressed opposition to the IFR based 
on general humanitarian and moral concerns, with some commenters urging 
the Departments to reconsider or rescind the rule. Commenters addressed 
the general right to seek asylum and the United States' obligations to 
protect those seeking asylum. For example, commenters emphasized that 
people have the right to migrate and seek asylum, which commenters 
described as a human right. Commenters stated the Administration should 
provide rights to those in the U.S. asylum process. Commenters also 
stated that people have a right to work and live in a safe environment 
with their families so that they can enjoy a better life. Several 
commenters stated that the IFR denies the right to seek asylum or that 
it harms those with the right to asylum. Commenters stated that the 
United States has a responsibility or moral obligation to welcome 
noncitizens who might make claims of asylum, that the United States 
should provide protection to those who seek it, and that turning them 
away is unconscionable. Some commenters suggested that the United 
States should welcome all people, regardless of their origin or when or 
how they arrive. Commenters stated that the United States has 
contributed to the conditions or push factors that promote migration 
and that it should share the responsibility for the geopolitical and 
climatic conditions it has created, especially since the response of 
the United States may shape how other countries react to humanitarian 
crises.
    Response: The Departments agree that the United States has certain 
legal obligations to protect those present in the United States who 
fear persecution or torture in their home countries or countries of 
removal and recognize the importance of offering migrants the 
opportunity to seek protection from removal. See 89 FR at 48759. But as 
explained more fully in Section III.A.1 of this preamble, this rule 
does not run afoul of those obligations or otherwise undermine the 
commitment of the United States to adhering to international law 
principles concerning non-refoulement. See also id. at 48716-17, 48735-
36. The Departments have instead exercised their authority to adopt a 
limitation on asylum eligibility and an exception to that limitation in 
certain circumstances. See id. at 48718. As discussed more fully in 
Section III.A.1 of this preamble, this framework comports with section 
208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C), which permits 
limitations and conditions on asylum as long as they are consistent 
with the INA.
    Any noncitizen who is physically present in the United States may 
apply for asylum, but there is no right for a noncitizen to enter the 
United States or to be processed in a particular manner. See United 
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (``At 
the outset we wish to point out that an alien who seeks admission to 
this country may not do so under any claim of right. Admission of 
aliens to the United States is a privilege granted by the sovereign 
United States Government.''). No individual present in the United 
States will be denied the opportunity to seek asylum or protection in 
the United States under this rule.
    In particular, this rule does not preclude noncitizens who cross 
the

[[Page 81191]]

southern border from seeking asylum. Indeed, all noncitizens processed 
for expedited removal who manifest a fear of return, express an 
intention to apply for asylum or protection, or express a fear of 
persecution or torture or a fear of return to their country or the 
country of removal are entitled to a credible fear interview, as 
appropriate. See INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii); 8 
CFR 235.15(b)(4). Also, noncitizens in section 240 removal proceedings 
have the opportunity to present information asserting fear of or 
concern about potential removal. See INA 240(c)(4), 8 U.S.C. 
1229a(c)(4). Although many individuals may be ineligible for asylum 
under this rule, they may seek to establish that they are subject to 
the rule's exception for exceptionally compelling circumstances, and 
they may also still seek statutory withholding of removal and CAT 
protection in the United States.
    The purpose of this rule is to enhance the Departments' ability to 
address historic levels of migration and efficiently process migrants 
arriving at the southern border during emergency border circumstances. 
89 FR at 48718. Consistent with that purpose, the rule limits 
eligibility for asylum during such circumstances and ensures that the 
process is not overwhelmed by those with nonviable claims in the 
expedited removal process who will add to an already-large backlog. 
Those referred to an IJ will become part of the backlog of pending 
immigration cases before EOIR, which at the end of the third quarter of 
FY 2024 was over 3.46 million cases.\141\ Continuing to process non-
viable claims will also exacerbate USCIS's asylum backlog, which, based 
on case filings through August 31, 2024, was over 1.3 million 
cases.\142\
---------------------------------------------------------------------------

    \141\ See EOIR, Adjudication Statistics: Pending Cases, New 
Cases, and Total Completions (July 19, 2024), https://www.justice.gov/eoir/media/1344791/dl?inline. Initial receipts 
equals removal, deportation, exclusions, asylum-only, and 
withholding-only cases.
    \142\ See OHSS analysis of USCIS Global data as of September 10, 
2024.
---------------------------------------------------------------------------

    Comment: Commenters wrote that the IFR contradicts U.S. values and 
history. Commenters stated that the United States is a nation of 
immigrants and is built on a history of welcoming migrants. Some 
commenters described the IFR's limitations on asylum as contrary to 
U.S. values and democracy and termed it ``un-American.'' Commenters 
stated that the IFR does not treat noncitizens with dignity and 
respect. Many commenters emphasized the desire for any process to be 
``welcoming, transparent, humanitarian, and fair;'' one commenter 
specifically expressed concern for ``the dignity, safety, and human 
rights of asylum seekers;'' and another expressed concern for those 
people ``seeking safety and the American dream.'' Another commenter 
emphasized that immigrants ``are human beings and deserve to be treated 
as such.'' Many commenters generally desired policies that ``welcome 
immigrants.'' Other commenters provided additional remarks on the 
contributions of immigrants to the United States, stating that 
noncitizens provide value to U.S. communities and that immigrants have 
enriched the United States. Commenters emphasized their own status as 
descendants of immigrants and expressed a desire for fairness in 
welcoming noncitizens at all borders. Commenters argued that the IFR 
undermines the historic commitment of the United States to protecting 
those who seek refuge. At least one commenter described the IFR as 
``authoritarian.''
    Commenters also addressed moral concerns related to the IFR or the 
immigration system overall. One commenter stated that immigrants are 
not ``a problem;'' rather it is ``our immigration system that is the 
problem.'' Some described the IFR, or denying asylum, as ``immoral,'' 
``inhumane,'' ``cruel,'' ``unjust'' or ``unfair,'' or ``xenophobi[c].'' 
Commenters asserted that the United States should have an accessible, 
diverse, safe, welcoming, dignified, fair, and balanced immigration 
system. Commenters stated that the United States should not make it 
harder for those fleeing danger to seek protections. Commenters stated 
that the United States should treat immigrants and refugees with 
respect, dignity, and compassion while defending human life. Commenters 
stated that Mexico and Latin America are neighbors of the United States 
and should be treated with goodwill. One commenter stated that asylum 
seekers from Mexico should be given the full rights of citizens. One 
commenter stated that there is no real border security or immigration 
crisis, but rather the concept has been created to distract Americans 
from certain political agendas, and that the ``real crisis'' is climate 
change.
    Response: The United States is both a nation of immigrants and a 
nation of laws. The Departments are charged with administering and 
enforcing those laws and endeavor to do so humanely. The Departments 
agree that the historical openness of the United States to immigration 
has enriched our culture, expanded economic opportunities, and enhanced 
our influence around the world. However, the Departments reject the 
contention that the IFR's limitation on asylum eligibility and other 
provisions are inconsistent with American values, fairness, and showing 
respect for immigrants.
    The United States has a long tradition of accepting and welcoming 
refugees. For decades, U.S. law has protected vulnerable populations 
from return to a country where they would be persecuted or tortured. 
See, e.g., Stevic, 467 U.S. at 409 (``For over 30 years the Attorney 
General has possessed statutory authority to withhold the deportation 
of an alien upon a finding that the alien would be subject to 
persecution in the country to which he would be deported.''). Under 
this rule, the United States will continue to offer such protection. 
The rule is designed to implement the Proclamation's policies and 
objectives by enhancing the Departments' ability to address historic 
levels of migration and efficiently process migrants arriving at the 
southern border during emergency border circumstances. See 89 FR at 
48718. The rule enhances the Departments' ability to manage high levels 
of irregular migration to the United States during emergency border 
circumstances and allows the Departments to quickly deliver decisions 
and consequences to those who cross the southern border irregularly and 
are unable to establish a legal basis to remain, while upholding 
domestic and international protection obligations. Id. at 48731.
    Without a policy in place to ensure lawful, safe, and orderly 
processing of migrants entering the United States, the number of 
migrants would exceed DHS's already limited resources and facilities. 
Over the past several years, the border security and immigration 
systems have experienced extreme strain, with a dramatic increase in 
the number of noncitizens attempting to cross the SWB between POEs. 89 
FR at 48722. Despite the meaningful impact of the Circumvention of 
Lawful Pathways rule and related measures, encounter levels continued 
to exceed DHS's capacity to, as appropriate, effectively and safely 
process, detain, and remove noncitizens. Id. at 48727. As explained in 
the IFR, the Departments believed that, without meaningful policy 
change, encounters between POEs would continue to rise and surpass 
DHS's capacity and abilities based on available resources. Id. at 
48726. The Departments disagree with the sentiment that the rule is 
unnecessary, as it responds to this urgent situation. The Departments 
reiterate that the goal

[[Page 81192]]

of the rule is not to discourage migrants with valid claims from 
applying for asylum or other protection, but rather to discourage the 
unprecedented level of irregular migration while at the same time 
maintaining access to lawful, safe, and orderly pathways to enter the 
United States. The Departments have determined that the benefits to the 
overall functioning and efficiency of the immigration system at our 
southern border justify the rule; applying the rule is necessary to 
ensure the Departments' continued ability to safely, humanely, and 
effectively enforce and administer U.S. immigration laws and to reduce 
the role of exploitative and dangerous smuggling and human trafficking 
networks.
    The rule does not render noncitizens to whom it applies 
categorically ineligible for asylum, nor does it alter their ultimate 
eligibility for withholding or CAT protection. To ensure that 
particularly vulnerable migrants are not unduly burdened by the rule, 
the Departments have included an exception to the limitation on asylum 
eligibility that will allow some migrants to remain eligible for 
asylum. 8 CFR 208.35(a)(2), 1208.35(a)(2). And even those ineligible 
for asylum may continue to seek statutory withholding of removal and 
CAT protection. A noncitizen who seeks to maintain eligibility for 
asylum can also utilize one of several lawful, safe, and orderly 
pathways to the United States, including use of the CBP One app, or, 
for some noncitizens, refugee resettlement, parole processes, family 
reunification, and labor pathways. Indeed, as noted above, the CBP One 
app has permitted the United States Government to process nearly five 
times more individuals at land border POEs each day than it did on an 
average day in the six years preceding the pandemic--providing an 
important avenue for individuals who may wish to access protection in 
the United States to so in a safe and orderly manner.\143\ The Safe 
Mobility Initiative, which includes Safe Mobility Offices in several 
countries in the Western Hemisphere, processes and educates migrants 
about the aforementioned pathways.\144\ By reducing migration flows to 
a reasonable rate, the rule will reduce strains on limited Federal 
Government immigration processing and enforcement resources; preserve 
the Departments' continued ability to safely, humanely, and effectively 
enforce and administer the immigration laws; and reduce the role of 
exploitative TCOs and smugglers. 89 FR at 48767. Finally, as explained 
in Section III.A.1 of this preamble, the rule is fully consistent with 
the Departments' authority and obligations under section 208 of the 
INA, 8 U.S.C. 1158.
---------------------------------------------------------------------------

    \143\ OHSS analysis of July 2024 OHSS Persist Dataset (OFO 
Encounters tab).
    \144\ See U.S. Dep't of State, Safe Mobility Initiative: Helping 
Those in Need and Reducing Irregular Migration in the Americas, 
https://www.state.gov/safe-mobility-initiative/ (last visited Sept. 
24, 2024).
---------------------------------------------------------------------------

ii. Procedural and Due Process Concerns
(1) General Concerns
    Comment: A commenter stated that the IFR does not violate 
noncitizens' due process rights because asylum is a discretionary 
benefit to which noncitizens have no inherent due process interest; 
instead, they have only the procedural rights guaranteed by statute. 
Because the IFR preserves all procedural statutory protections, the 
commenter stated, the IFR complies with due process. The commenter 
further stated that regulatory bars to asylum do not alter the basic 
procedural protections, such as the opportunity to be heard, for 
noncitizens who make credible fear claims.
    Other commenters urged the Departments to rescind the IFR entirely. 
Some commenters expressed general concern that the IFR would violate or 
undermine due process protections. One commenter said that U.S. 
immigration law is already confusing, citing research that it said 
showed that 55.9 percent of noncitizen respondents did not understand 
the requirements and processes for accessing United States territory. 
The commenter further stated that noncitizens arriving at the southern 
border will not be able to understand the procedures for seeking asylum 
or protection given the IFR's complexity.
    Commenters discussed the importance of due process in the asylum 
system, as required by international human rights law, and said that 
the United States has a duty to ensure that noncitizens receive a fair 
trial and fully understand their rights. Similarly, one commenter 
stated that noncitizens who express the desire to seek asylum have a 
due process right to information about their rights and obligations, 
including deadlines and appeals, the interview process, and their right 
to legal representation. Such safeguards, the commenter wrote, would 
ensure that noncitizens receive the necessary guidance for pursuing 
their asylum claims.
    Commenters wrote that fair and efficient asylum procedures are even 
more important for noncitizens with particular vulnerabilities, such as 
UCs. Commenters stated that the IFR would hamper consistent application 
of the law and result in arbitrary application of the law, thus 
severely restricting access to asylum and humanitarian protections.
    Response: The Departments disagree that the rule violates the Due 
Process Clause of the Fifth Amendment or impermissibly restricts access 
to asylum. Noncitizens who are encountered in close vicinity to and 
immediately after crossing the border and are placed in expedited 
removal proceedings, including those in the credible fear screening 
process, have ``only those rights regarding admission that Congress has 
provided by statute.'' \145\ Thuraissigiam, 591 U.S. at 140; see also 
Mendoza-Linares v. Garland, 51 F.4th 1146, 1148 (9th Cir. 2022) 
(concluding that ``an arriving immigrant caught at the border . . . 
`has no constitutional rights regarding his application' for asylum'' 
(quoting Thuraissigiam, 591 U.S. at 139)). As discussed above in 
Section III.A 1 of this preamble, the changes in this rule are 
consistent with the INA. They thus comply with the Due Process Clause 
with respect to noncitizens in expedited removal proceedings.\146\
---------------------------------------------------------------------------

    \145\ Courts also have held that noncitizens do not have an 
underlying property or liberty interest in a grant of asylum to 
which the protections of the Due Process Clause attach. See, e.g., 
Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir. 2008) (holding that ``an 
alien who has already filed one asylum application, been adjudicated 
removable and ordered deported, and who has nevertheless remained in 
the country illegally for several years, does not have a liberty or 
property interest in a discretionary grant of asylum''); Ticoalu v. 
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006) (``Due process rights do 
not accrue to discretionary forms of relief, and asylum is a 
discretionary form of relief.'' (citation and internal quotation 
omitted)); Mudric v. Att'y Gen., 469 F.3d 94, 99 (3d Cir. 2006) 
(holding that an 8-year delay in processing the petitioner's asylum 
application was not a constitutional violation because the 
petitioner ``had no due process entitlement to the wholly 
discretionary benefits of which he and his mother were allegedly 
deprived''); cf. Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 
2003) (``Since discretionary relief is a privilege created by 
Congress, denial of such relief cannot violate a substantive 
interest protected by the Due Process clause.''). Notably, UCs are 
excepted from expedited removal and have other rights under the 
nation's immigration laws. See generally 8 U.S.C. 1232. Procedural 
concerns related to UCs are addressed later in this section.
    \146\ Although this rule's limitation on asylum eligibility also 
applies in section 240 removal proceedings, even if noncitizens in 
those proceedings had an interest protected by the Due Process 
Clause, the application of the limitation would not violate the Due 
Process Clause because, as noted below, noncitizens in such 
proceedings are entitled to all the procedural protections such 
proceedings normally entail. See Pouhova v. Holder, 726 F.3d 1007, 
1011 (7th Cir. 2013) (citing section 240(b)(4) of the INA, 8 U.S.C. 
1229a(b)(4), and explaining that ``[a]ny proceeding that meets the 
requirements of the statute also satisfies constitutional due 
process'').
---------------------------------------------------------------------------

    Contrary to commenters' assertions, the rule ensures that 
noncitizens receive

[[Page 81193]]

a fair process. Indeed, although the rule changes some procedures, as 
discussed throughout this preamble, it leaves much of the process 
unaltered. Specific comments concerning the rule's manifestation of 
fear standard and related changes to the process for determining 
whether a noncitizen should be referred to an AO for a credible fear 
interview are addressed in Section III.C.2 of this preamble. The 
Departments address commenters' concerns about the rule's consistency 
with international obligations in Section III.A.1 of this preamble.
    First, with respect to one commenter's claim that noncitizens do 
not understand the requirements for accessing United States territory 
because U.S. immigration law is confusing, the Departments are aware of 
no statutory requirement that notice regarding any of the INA's 
provisions be provided to individuals outside the United States, 
including those who may be subject to expedited removal provisions or 
this rule's limitation on asylum eligibility upon arrival. In addition, 
to the extent the commenter's objection is to the complexity of the 
INA, that concern is a matter for Congress to address.
    Second, under the rule, DHS is continuing to provide noncitizens 
who are subject to expedited removal with notice of their ability to 
raise a claim of fear of persecution or torture. DHS is using signs and 
videos that are reasonably designed to ensure that noncitizens in its 
custody are aware of their right to request asylum or protection. As 
discussed further in Section III.C.2 of this preamble, these signs and 
videos are provided in languages that are common to the large majority 
of noncitizens encountered by CBP at the southern border. ICE likewise 
provides information in a number of languages to detainees being 
processed under the rule.\147\ And the signs provide a simple 
instruction to noncitizens that, if they fear persecution or torture if 
they are removed from the United States, they should tell an 
immigration officer and an AO will conduct an interview and ask the 
noncitizens questions about any fear they may have. Individuals who do 
not speak one of the languages are provided with language access 
services consistent with CBP's existing language assistance policies. 
These procedures are consistent with DHS's obligations under section 
235(b)(1)(B)(iv) of the INA, 8 U.S.C. 1225(b)(1)(B)(iv).
---------------------------------------------------------------------------

    \147\ See Memorandum for Daniel A. Bible, Exec. Assoc. Dir., 
Enforcement and Removal Operations, ICE, from Patrick J. 
Lechleitner, Deputy Dir. and Senior Off. Performing the Duties of 
the Dir., ICE, Re: Implementation Guidance for Noncitizens Described 
in Presidential Proclamation of June 3, 2024, Securing the Border, 
and Interim Final Rule, Securing the Border 5 (June 4, 2024) 
(``These signs must be posted in English and Spanish. [Enforcement 
and Removal Operations (`ERO')] will have additional translations 
available in facility law libraries in the following languages . . . 
.''); ICE, National Detainee Handbook 7, 15, 25 (2024), https://www.ice.gov/doclib/detention/ndHandbook/ndhEnglish.pdf.
---------------------------------------------------------------------------

    Moreover, to the extent that commenters have expressed due process 
concerns about the manifestation standard, the Departments reiterate 
that the expedited removal statute does not require immigration 
officers to affirmatively ask every noncitizen subject to expedited 
removal if the noncitizen has a fear of persecution or torture. See 89 
FR at 48740. Instead, the statute provides that only those noncitizens 
who ``indicate[] either an intention to apply for asylum . . . or a 
fear of persecution,'' INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i), 
must be referred to an AO for a credible fear interview, INA 
235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). As discussed in detail in 
Section III.C.2 of this preamble, the statute does not place any 
affirmative obligation on the Government to question noncitizens about 
intent to seek relief or fear in their home countries, nor does it 
define what circumstances constitute the requisite indication of intent 
or fear; to the contrary, the onus under the statute is on the 
noncitizen to ``indicate[]'' either of the circumstances warranting 
referral. Because the Departments' procedures comply with the statute, 
they comport with due process. See Thuraissigiam, 591 U.S. at 139-40.
    Third, noncitizens who manifest or express a fear and who are 
referred for a credible fear interview will receive additional 
information about the credible fear process that has the same types of 
procedural and substantive information as that provided in the Form M-
444, which is used for those not subject to the rule's expedited 
removal procedures and during times when this rule's provisions do not 
apply. 89 FR at 48739-40. The new ``Information About Credible Fear 
Interview Sheet'' informs the noncitizen that the noncitizen may 
consult with another person, including a legal service provider, and is 
provided to the noncitizen along with an EOIR-maintained list of pro 
bono legal service providers. It gives the noncitizen information about 
the credible fear interview itself, including that an interpreter will 
be provided, if needed or requested. It explains that the noncitizen 
may request a male or female interpreter or AO and may speak to the AO 
separately from the noncitizen's family. It highlights the importance 
of telling the AO about the noncitizen's fear of harm and that this may 
be the only opportunity to do so. The information sheet notifies the 
noncitizen of the right to have an IJ review a negative fear 
determination and gives details about the steps following a positive 
determination.
    Individuals in the credible fear process maintain the right to 
consult with an attorney or other person or persons of their choosing 
before their interview, and such persons may be present for the 
interview itself. 8 CFR 235.15(b)(4)(i)(B). Asylum seekers also may 
present evidence relevant to their claim during their interviews. 89 FR 
at 48746 & n.239. Additionally, USCIS provides interpreter services at 
the agency's expense to noncitizens who cannot proceed effectively in 
English. 8 CFR 208.30(d)(5). And noncitizens may request review of a 
negative fear determination before an IJ. Compare 8 CFR 208.30(g)(1) 
(providing the standard process for requesting IJ review in credible 
fear proceedings), with 8 CFR 208.35(b)(2)(iii)-(v) (explaining the 
process for requesting IJ review for those subject to the rule and 
unable to show that the exception to the limitation on asylum 
eligibility applies). The rule requires noncitizens to respond 
affirmatively when asked whether the noncitizen would like to request 
such review, rather than providing review if the noncitizen does not 
respond, but IJ review remains available in all cases with a negative 
credible fear determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III); 8 CFR 208.35(b)(2), 1208.35(b)(1). The rule is 
thus fully consistent with the Departments' legal authority and 
obligations.
    In addition, the rule provides several procedural protections to 
ensure that asylum applicants receive a full and fair hearing before an 
IJ and that the limitation on asylum eligibility applies only to 
noncitizens properly within the scope of 8 CFR 208.35(a) and 
1208.35(a). During the credible fear review, an IJ will evaluate de 
novo whether there is a significant possibility that the noncitizen 
would ultimately be able to demonstrate by a preponderance of the 
evidence that the limitation on asylum eligibility does not apply or 
that the noncitizen meets the exception. 8 CFR 208.35(b)(2)(v), 
1208.35(b). Even where an IJ determines that the noncitizen has not met 
that burden, if the noncitizen demonstrates a reasonable probability of 
persecution or torture in the country or countries of removal, the 
noncitizen will have an opportunity to apply for statutory withholding 
of removal,

[[Page 81194]]

protection under the CAT regulations, or any other form of relief or 
protection for which the noncitizen is eligible in section 240 removal 
proceedings, including asylum. 8 CFR 1208.33(b)(2)(ii), 
1208.35(b)(2)(iii). These standards help to ensure the outcome of the 
process delineated in the rule is not predetermined and that 
noncitizens potentially subject to the limitation on asylum eligibility 
receive sufficient opportunity for consideration and review of 
threshold eligibility determinations to satisfy any putative due 
process rights they may have. See Mathews v. Eldridge, 424 U.S. 319, 
333 (1976) (``The fundamental requirement of due process is the 
opportunity to be heard at a meaningful time and in a meaningful 
manner.'' (internal quotation marks omitted)).
    Nor does the rule violate any procedural due process rights 
noncitizens may have in section 240 removal proceedings. For those 
placed in section 240 removal proceedings, the rule's limitation on 
asylum eligibility will be litigated in those proceedings before an IJ 
with all the procedural rights that apply in such proceedings. See 
Pouhova, 726 F.3d at 1011; see also Rehman v. Gonzales, 441 F.3d 506, 
508 (7th Cir. 2006) (``Any proceeding that meets [the requirements of 
section 240 of the INA, 8 U.S.C. 1229a, and the INA's implementing 
regulations,] satisfies the Constitution as well.'').
    Additionally, the Departments disagree with comments characterizing 
the IFR as resulting in unfair procedures that are especially harmful 
to those with particular vulnerabilities, such as UCs, individuals with 
mental health issues or intellectual capacity challenges, and victims 
of violence, torture, or other traumatic experiences. Nothing in the 
IFR changes the longstanding framework establishing that UCs are not 
subject to expedited removal. See 8 U.S.C. 1232(a)(5)(D). UCs are also 
specifically excepted from the Proclamation's suspension and limitation 
on entry under section 3(b) of the Proclamation and, accordingly, the 
IFR's limitation on asylum eligibility. 89 FR at 48487; 8 CFR 
208.35(a)(1), 1208.35(a)(1). Moreover, the process outlined in the IFR 
does not prohibit USCIS from exercising its discretion to issue notices 
to appear (``NTAs'') and place noncitizens, including those who are 
unable to testify or who speak a rare language, in section 240 removal 
proceedings, where they can request asylum. See 8 CFR 208.30(b); see 
also Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) 
(finding that the INA provides DHS with ``discretion to put aliens in 
section 240 removal proceedings even though they may also be subject to 
expedited removal''). Additionally, EOIR has established a specialized 
juvenile docket at each immigration court with an established caseload 
of children's cases; has issued guidance to its adjudicators regarding 
special considerations and procedures for cases involving children, 
including UCs; and has provided training to IJs on cases involving 
children, including UCs.\148\
---------------------------------------------------------------------------

    \148\ See EOIR, Director's Memorandum 24-01, Children's Cases in 
Immigration Court (Dec. 21, 2023), https://www.justice.gov/d9/2023-12/dm-24-01_1.pdf.
---------------------------------------------------------------------------

    Noncitizens in section 240 removal proceedings have a wide range of 
well-established statutory and regulatory rights, including the 
following: the right to representation at no expense to the Government, 
INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); a reasonable opportunity to 
examine evidence, present evidence, and cross-examine witnesses, INA 
240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B); the right to seek various forms 
of relief, 8 CFR 1240.1(a)(1)(ii)-(iii); the right to file a motion to 
continue, 8 CFR 1003.29; and the right to appeal specified decisions to 
the BIA, 8 CFR 1003.3(a), 1003.38(a), and to later file a petition for 
review of a final removal order in the appropriate U.S. Court of 
Appeals, INA 242, 8 U.S.C. 1252. Additionally, EOIR provides 
interpreters for noncitizens in section 240 removal proceedings.\149\ 
And safeguards are provided to those who are not competent to 
participate in their proceedings, see Matter of Matter of M-A-M-, 25 
I&N Dec. 474, 481-82 (BIA 2011), which may include termination of the 
proceedings where ``[f]undamentally fair proceedings are not possible 
because the noncitizen is mentally incompetent and adequate safeguards 
are unavailable,'' 8 CFR 1003.1(m)(1)(i)(B), 1003.18(d)(1)(i)(B).
---------------------------------------------------------------------------

    \149\ See EOIR, Director's Memorandum 23-02, Language Access in 
Immigration Court 1-2 (June 6, 2023), https://www.justice.gov/eoir/book/file/1586686/dl.
---------------------------------------------------------------------------

    The Departments also disagree with commenters' assertion that the 
IFR would lead to disparate or arbitrary application of the law. USCIS 
AOs and supervisory AOs have received the same training and materials 
related to applying the IFR across offices and jurisdictions. Asylum 
staff nationwide use Global, a cloud-based case management system,\150\ 
which includes interview guides, forms, and instructions--including 
specific interview guides, forms, and instructions to implement the 
IFR--to ensure consistency in procedures and substantive guidelines. 
Moreover, the IFR does not change the fact that all credible fear 
determinations issued by USCIS are reviewed by a supervisory AO prior 
to being served on a noncitizen, 8 CFR 208.30(e)(8), another important 
safeguard to ensure quality and consistency within and between offices.
---------------------------------------------------------------------------

    \150\ USCIS, Privacy Impact Assessment Update for the USCIS 
Asylum Division, at 4 (2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-uscis-asylum-september2018.pdf.
---------------------------------------------------------------------------

    Additionally, IJs are career employees who are selected through a 
competitive process.\151\ The Director of EOIR has authority to order 
``comprehensive, continuing training and support'' directed at 
``promot[ing] the quality and consistency of adjudications.'' 8 CFR 
1003.0(b)(1)(vii). And the Chief IJ has the authority to ``[p]rovide 
for appropriate training of the immigration judges and other [Office of 
the Chief Immigration Judge] staff on the conduct of their powers and 
duties.'' 8 CFR 1003.9(b)(2). Regulations also require IJs to ``resolve 
the questions before them in a timely and impartial manner consistent 
with the [INA] and regulations.'' 8 CFR 1003.10(b). To that end, all 
IJs receive ongoing training to facilitate the implementation of new 
policies and procedures, such as the IFR.\152\ EOIR's Legal Education 
and Research Services Division also offers nationwide legal training 
for IJs and ``regularly distributes new information within EOIR that 
includes relevant legal developments and policy changes from U.S. 
government entities and international organizations.'' \153\
---------------------------------------------------------------------------

    \151\ EOIR, Make a Difference--Apply for an Immigration Judge 
Position (last updated Sept. 17, 2024), https://www.justice.gov/eoir/Adjudicators (describing application process and core position 
requirements for IJ position).
    \152\ See, e.g., EOIR, Fact Sheet: Executive Office for 
Immigration Review Immigration Judge Training 2 (June 2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline.
    \153\ EOIR, Legal Education and Research Services Division (last 
updated Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division.
---------------------------------------------------------------------------

(2) Access to Counsel, Unrepresented Applicants, and the Ability or 
Time To Prepare
    Comment: Commenters stated that access to counsel is a due process 
right. Commenters also discussed statutory and regulatory requirements 
that provide noncitizens eligible for a credible fear interview the 
right to consult with legal counsel and said that the recent change to 
a minimum 4-hour consultation period prior to a credible fear 
interview--which DHS made via guidance--would effectively deny 
noncitizens that right.
    One commenter additionally stated that less than 3 percent of 
migrants in

[[Page 81195]]

expedited removal were able to obtain legal representation. Other 
commenters said that less than 1 percent were able to find 
representation in the credible fear process. A commenter stated that in 
2023, 35 percent of represented individuals had their negative fear 
determinations vacated, compared to just 15 percent of unrepresented 
noncitizens. Commenters emphasized that any immigration solution should 
include procedures for asylum seekers to access legal representation.
    Another commenter said that a 2010 study found that 54 percent of 
noncitizens with representation were granted asylum, compared to 11 
percent of noncitizens without representation. Another commenter said 
that noncitizens with representation were twice as likely to receive a 
grant of asylum as their unrepresented counterparts. The commenter said 
that such data indicate that, as a result of the IFR and reduced access 
to counsel, applicants with meritorious claims who would have otherwise 
been referred to full hearings will be denied.
    Commenters stated that many noncitizens do not understand the 
function and purpose of a credible fear interview without speaking with 
an attorney, particularly those who speak languages not included on 
orienting signs. Commenters explained that a majority of noncitizens do 
not have legal representation and thus may struggle to effectively 
present their cases, particularly if they do not speak English. 
Commenters also stated that, without legal counsel, many noncitizens 
will not understand the process nor the legal grounds for their asylum 
claims. Commenters stated that access to counsel significantly affects 
asylum outcomes and that less access to counsel is particularly 
troubling considering that noncitizens must now meet a new, higher 
standard for protection screenings. One commenter stated that the rule 
will worsen the issues that already exist in expedited removal 
proceedings, adding that children and adults are routinely denied 
access to legal advice if they get referred for fear screenings. 
Commenters who provide legal services also claimed that they have been 
excluded from credible fear interviews and subsequent credible fear 
review hearings before IJs.
    Another commenter stated that the availability of legal information 
and representation at the outset of the asylum process increases 
efficiency, discourages frivolous claims, reduces the number of appeals 
and repeat claims, and shortens the time required to determine a claim.
    Several commenters stated that noncitizens face significant 
barriers to obtaining legal representation during the credible fear 
process. A commenter stated that noncitizens in custody already face 
insurmountable hurdles to access legal counsel, such as knowing how to 
contact a lawyer, knowing where they are being detained, having access 
to a phone, and being given enough information to understand the 
credible fear process. Another commenter stated that having only 4 
hours would make it impossible for providers to meet with clients 
before credible fear interviews, stating that legal representatives 
often face barriers to accessing clients within 48 hours, much less 4. 
The commenter discussed such barriers, stating that legal 
representatives frequently wait 24 to 48 hours for their interviews 
with their clients to be scheduled and may be barred from including 
translators or interpreters in those interviews. Some commenters stated 
that immigration advocates and attorneys face numerous issues in trying 
to provide legal consultations, such as being unable to physically 
access detention facilities or obtain the requisite signatures from 
their clients. Another commenter added that advocates lack access to 
private meeting rooms and experience long waits to meet with clients, 
malfunctioning technology, and unsafe or uncomfortable environments.
    Several commenters stated that the rule would effectively eliminate 
access to legal representation because noncitizens would have only 4 
hours to find and consult with a lawyer before an initial hearing. 
Commenters emphasized that they viewed a 4-hour window as troubling in 
light of the newly increased standards noncitizens must meet. 
Commenters stated that it takes more than 4 hours to adequately prepare 
a noncitizen for the credible fear process. Commenters stated that 
noncitizens will not have the time or resources to contest arguments 
and present evidence before the credible fear screenings. Commenters 
believed that the 4-hour window will lead to greater rates of 
refoulement. Commenters stated that the 4-hour window may fall on a 
weekend or after business hours, when legal service providers and aid 
organizations are closed. Commenters asserted that noncitizens will 
lose access to legal counsel because the United States does not provide 
free counsel for noncitizens, and 4 hours is not enough time for 
individuals to retain counsel. Commenters stated that the rule's 
restrictions are arbitrary and impermissible, not supported by 
evidence, and will lead to the denial of otherwise meritorious asylum 
claims. Commenters stated that counsel would not be able to access 
their clients physically or telephonically in a 4-hour window.
    Commenters stated that, by reducing noncitizens' ability to secure 
counsel and connect with communities, the IFR will prevent individuals 
from becoming aware of other protections from which they could 
potentially benefit.
    Response: The rule does not deprive noncitizens of access to 
counsel in violation of the Fifth Amendment's Due Process Clause. The 
Supreme Court has held that the rights of individuals seeking asylum at 
the border are limited to ``only those rights regarding admission that 
Congress has provided by statute.'' Thuraissigiam, 591 U.S. at 140. The 
INA provides that a noncitizen ``may consult with a person or persons 
of the alien's choosing prior to the interview or any review thereof, 
according to regulations prescribed by the Attorney General,'' provided 
that ``[s]uch consultation shall be at no expense to the Government and 
shall not unreasonably delay the process.'' INA 235(b)(1)(B)(iv), 8 
U.S.C. 1225(b)(1)(B)(iv). This statutory right to consult does not 
attach until a noncitizen becomes eligible for a credible fear 
interview, and it does not guarantee an absolute right to retain 
counsel. See INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv). The 
regulations implementing expedited removal elaborate that ``[s]uch 
consultation shall be made available in accordance with the policies 
and procedures of the detention facility where the alien is detained.'' 
8 CFR 235.3(b)(4)(ii).
    Moreover, because this rule does not alter procedures governing 
consultation or representation, commenters' concerns regarding those 
issues--including that the minimum 4-hour consultation period violates 
section 235(b)(1)(B)(iv) of the INA, 8 U.S.C. 1225(b)(1)(B)(iv), or is 
unreasonable--are outside the scope of this rulemaking. Procedures 
regarding consultation and representation are governed by other DHS 
regulations, guidance, and policies.
    Nevertheless, insofar as commenters' concerns relate to the 
Departments' decision to adopt the changes made by the IFR and this 
rule, DHS's changes to the consultation period do not undermine the 
Departments' decision to promulgate this rule. Those changes aim to 
address the same emergency border circumstances as this rule--
specifically, DHS determined that shortening the minimum consultation 
period would reduce the risk that DHS's processing capacity would 
become overwhelmed by increasing DHS's ability to impose

[[Page 81196]]

consequences swiftly, which in turn lowers incentives for additional 
irregular migration. DHS's 4-hour minimum consultation period, 
moreover, continues to allow sufficient time for individuals to make 
multiple phone calls and have in-depth conversations. DHS is not aware 
of any data supporting the assertion that this approach has decreased 
the effective availability of consultation. Finally, even if this 
approach had some adverse effect on noncitizens' ability to consult, 
the Departments would still find it necessary and appropriate to adopt 
this rule's changes, including the two changes to the portions of the 
removal process that follow consultation--the asylum limitation and the 
reasonable probability standard.
    The Departments start by explaining how the consultation process 
works. Once a noncitizen is referred to USCIS for a credible fear 
interview pursuant to 8 CFR 235.15(b)(4), the rule ensures that the 
noncitizen receives information about that interview and the right to 
consult with a person or persons of the noncitizen's choosing. 
Specifically, all those referred for a credible fear interview receive 
a written ``Information About Credible Fear Interview Sheet'' 
describing the purpose of the referral and the credible fear interview 
process; the right to consult with other persons prior to the interview 
and any review thereof at no expense to the United States Government; 
the right to request a review by an IJ of any negative fear 
determination an AO enters; and the consequences of a failure to 
establish a credible fear of persecution or torture. 8 CFR 
235.15(b)(4)(i)(B). This written disclosure is available in English, 
Spanish, Haitian Creole, and Portuguese, and the noncitizen is also 
provided with a list of pro bono legal service providers. If the 
noncitizen does not speak one of these languages, then language access 
services are provided to orally communicate the written material in a 
language understood by the noncitizen.\154\ As stated in the 
``Information About Credible Fear Interview Sheet,'' the minimum 4-hour 
consultation period begins at the time a noncitizen who has been 
referred to USCIS for a credible fear interview has access to a phone 
or another opportunity to consult with an individual of the 
noncitizen's choosing, and the minimum 4-hour period runs only between 
the hours of 7 a.m. and 7 p.m. This period is calculated in local time. 
Procedurally, a noncitizen is scheduled for a credible fear interview 
only after the minimum consultation period has elapsed, regardless of 
whether the noncitizen used the phone or consulted with anyone during 
that period.
---------------------------------------------------------------------------

    \154\ See, e.g., ICE, 2019 National Detention Standards for Non-
Dedicated Facilities, Foreword (2019), https://www.ice.gov/detain/detention-management/2019 (``Generally, all written materials 
provided to detainees must be translated into Spanish and other 
frequently encountered languages. Oral interpretation or other 
language assistance must be provided to any detainee who speaks a 
language in which written material has not been translated or who is 
illiterate.''); ICE, 2011 Operations Manual ICE Performance-Based 
National Detention Standards, Standard 2.13 (2011), https://www.ice.gov/detain/detention-management/2011 (``Oral interpretation 
or assistance shall be provided to any detainee who speaks another 
language in which written material has not been translated or who is 
illiterate.'').
---------------------------------------------------------------------------

    The ``Information About Credible Fear Interview Sheet'' further 
explains that the noncitizen may have a consultant of the noncitizen's 
choice participate in the interview with USCIS by telephone, and an 
EOIR-maintained list of pro bono legal service providers who may be 
able to speak with the noncitizen is also provided. The information 
sheet instructs noncitizens to ask a DHS officer for assistance if they 
want to call someone. Individuals who manifest fear in CBP custody and 
go through the credible fear process in CBP custody are provided access 
to a phone in order to telephonically consult with any individual of 
their choosing, including legal counsel, and do not need to ask CBP 
employees to do so. After manifesting a fear, when a phone becomes 
available, such noncitizens are brought to the phone and given at least 
4 hours in which to use it. If a noncitizen requests use of a phone 
after the end of the noncitizen's consultation period, but before the 
noncitizen's interview occurs, the noncitizen is afforded the 
opportunity to access a phone unless it is not operationally feasible 
to provide such access (such as because of a lack of available 
personnel to escort the noncitizen to the consultation area). The phone 
booths in which such consultations occur are private, closed, 
confidential booths and include an EOIR-maintained list of pro bono 
legal service providers.\155\
---------------------------------------------------------------------------

    \155\ See USBP, 6.4.24 USBP Field Guidance, at 4.
---------------------------------------------------------------------------

    Those detained noncitizens who go through the credible fear process 
in ICE custody generally have direct access to phones (without having 
to interact with facility staff to request access, for instance) and 
have access to a free call platform that includes telephone numbers of 
legal service providers who are listed on the EOIR-maintained list of 
pro bono legal service providers, in accordance with ICE detention 
standards.\156\ Beyond telephone access, visits between a legal 
representative and a detained noncitizen are confidential and not 
subject to auditory supervision.\157\ Private consultation rooms may be 
available for these meetings.\158\ To facilitate improved access to 
legal resources and representation, ICE has also expanded its Virtual 
Attorney Visitation program, which facilitates confidential attorney-
client conversations through virtual technology.\159\
---------------------------------------------------------------------------

    \156\ ICE, Attorney Information and Resources: Communicating 
with Your Client or Prospective Client (last updated Aug. 9, 2024), 
https://www.ice.gov/detain/attorney-information-resources. Telephone 
access and use may be limited in the event of emergencies (for 
instance, escapes, escape attempts, disturbances, fires, power 
outages) or other events that disrupt orderly facility operations. 
If such disturbances occur, officers are responsible for ensuring 
that the minimum 4-hour consultation period is afforded.
    \157\ Id.
    \158\ Id.
    \159\ ICE, Virtual Attorney Visitation Program (last updated 
Aug. 16, 2024), https://www.ice.gov/detain/detention-facilities/vav.
---------------------------------------------------------------------------

    Commenters' arguments concerning the minimum 4-hour consultation 
period, first, miss that Congress did not provide an unqualified right 
to consultation or representation during the credible fear process. 
Rather, noncitizens may consult ``according to regulations prescribed 
by'' the Secretary, and ``[s]uch consultation . . . shall not 
unreasonably delay the process.'' See INA 235(b)(1)(B)(iv), 8 U.S.C. 
1225(b)(1)(B)(iv). And those regulations specify that ``consultation 
shall be made available in accordance with the policies and procedures 
of the detention facility where the alien is detained.'' 8 CFR 
235.3(b)(4)(ii). ``Read together, the text of these provisions provides 
noncitizens with a right to consultation while they are detained 
pending expedited removal, but also plainly establish that the 
consultation right is subordinate to the expedition that this removal 
process is designed to facilitate, and that the scope of the right to 
consult is determined by the facility in which these noncitizens are 
detained.'' Las Americas Immigr. Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 
1, 25 (D.D.C. 2020); cf. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III) (providing that IJ review of an AO's negative 
credible fear determination ``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'').
    DHS, moreover, moved to the 4-hour minimum consultation period for 
credible fear referrals for noncitizens

[[Page 81197]]

covered by the IFR to address the emergency border circumstances 
described in the President's June 3 Proclamation based on a 
determination that operational imperatives necessitated this change in 
order to avoid unreasonable delays to the process in the context of 
these emergency border circumstances--exactly the type of determination 
that Congress authorized DHS to make. Under DHS's guidance that applies 
outside of the context of emergency border circumstances, noncitizens 
are not interviewed until at least 24 hours after the noncitizen's 
acknowledgement of receipt of the Form M-444,\160\ unless the 
noncitizen, at the noncitizen's request, voluntarily waives the 
consultation period. Even if a noncitizen consults at the start of that 
24-hour period, the noncitizen's credible fear interview is not 
conducted until after that period ends.
---------------------------------------------------------------------------

    \160\ See Memorandum for Andrew Davidson, Acting Deputy Dir., 
USCIS, from John L. Lafferty, Chief, Asylum Div., USCIS, Re: 
Scheduling of Credible Fear Interviews (May 10, 2023).
---------------------------------------------------------------------------

    The 4-hour approach allows a swifter cadence of scheduling 
noncitizens for credible fear interviews. This minimum 4-hour 
consultation period thus enables credible fear screenings to take place 
in a more efficient manner and reduces the time noncitizens remain in 
custody; in turn, those improvements mitigate overcapacity issues in 
DHS facilities, free up detention space to allow for greater expedited-
removal processing capacity over time, and help to avoid situations in 
which DHS must issue NTAs to individuals otherwise eligible for 
expedited removal and release them pending section 240 removal 
proceedings--in turn delaying the imposition of consequences for those 
without a legal basis to remain in the United States and creating 
incentives for additional arrivals at the border. Conversely, a longer 
minimum consultation period would delay credible fear screenings, 
increase the amount of time noncitizens remain in immigration 
detention, and contribute to a situation where DHS's capacity could 
quickly become overwhelmed, including potentially requiring the release 
of individuals into section 240 removal proceedings instead of 
processing such individuals under expedited removal due to resource 
constraints--thus delaying the imposition of consequences for those 
without a legal basis to remain and creating incentives for more 
irregular migration.
    The Departments disagree with the conclusion drawn by certain 
commenters that a shortened minimum consultation period effectively 
eliminates access to counsel or that the hours during which the 
consultation period runs make it practically impossible for noncitizens 
to reach attorneys or consultants. To the contrary, the minimum 4-hour 
period that DHS has adopted allows sufficient time for individuals to 
make multiple phone calls and have in-depth conversations prior to the 
credible fear interview. Cf. Las Americas Immigr. Advoc. Ctr., 507 F. 
Supp. 3d at 12-14, 30.
    The difference between DHS's 24-hour approach and its approach 
during these emergency border circumstances is also less significant in 
practice than certain commenters suggested. For example, the 
consultation period during emergency border circumstances begins to run 
only when the individual is provided access to a phone and confers 
access during at least that 4-hour period; the 24-hour period, by 
contrast, begins when a noncitizen acknowledges receipt of the Form M-
444, and the noncitizen does not necessarily have access to a phone 
immediately at that point. For those who express a fear in CBP custody, 
under either approach, CBP generally takes a noncitizen to a phone 
booth once during the noncitizen's time in custody for consultation, 
and CBP generally will accommodate requests for additional phone access 
when operationally feasible. In addition, a significant share of the 
24-hour period occurs overnight, when fewer people are likely be 
available to take calls. Under the 4-hour approach, by contrast, the 
clock runs only during daytime hours.
    The 4-hour period is also a minimum, and noncitizens may receive 
greater time. For example, for noncitizens in CBP custody, if a 
noncitizen requests access to a phone booth after the consultation, but 
the interview has not yet occurred, the agent or officer would in the 
normal course facilitate another call, to the extent operationally 
feasible. For noncitizens in ICE custody, noncitizens are generally 
housed in areas with phones that they may use at any time. Hence, 
noncitizens have phone access even during times when the 4-hour 
consultation period is tolled, as well as in circumstances in which the 
noncitizen's credible-fear interview is delayed for a longer time than 
the 4-hour minimum. The result is that noncitizens in ICE custody will 
often have more than 4 hours of phone access. Requests to reschedule 
the credible fear interview may be accommodated for reasons that 
constitute extraordinary circumstances, such as serious illness of the 
noncitizen's consultant or serious facility issues that prevented the 
noncitizen from contacting a consultant.
    The Departments acknowledge that the period includes Saturdays, 
Sundays, holidays, and periods outside of traditional business hours (7 
a.m. to 9 a.m. and 5 p.m. to 7 p.m.). And while the Departments 
recognize that it may be more difficult for detained noncitizens to 
connect with the person or persons with whom they wish to consult 
during these times, this concern again does not undermine the 
Departments' decision to adopt the changes in the IFR and this rule. 
DHS's 24-hour approach also includes Saturdays, Sundays, and 
holidays.\161\ Although DHS's 4-hour approach uses a shorter window 
during those periods than its 24-hour approach, the Departments have 
already explained why that change makes less of a practical difference 
than some commenters suggest. Moreover, although DHS's approach during 
emergency border circumstances may sometimes result in some or all of 
the 4-hour period falling outside of traditional business hours, 
noncitizens may reach out to individuals in different time zones during 
these periods. For those who manifest fear in CBP custody, CBP provides 
noncitizens with a list of legal service providers operating in 
multiple time zones.\162\ For those who manifest fear in ICE custody, 
ICE provides noncitizens with a list of legal service providers who 
service the area in which the noncitizen is detained and ICE will, upon 
request, provide the noncitizen a list of providers in additional 
States identified by the noncitizen. In addition, DHS's 24-hour 
approach also does not guarantee that noncitizens would have access to 
phones during traditional business hours (for example, when the period 
falls over a weekend or holiday).\163\ Excluding weekends, holidays, 
and periods outside of traditional business hours would thus mark a 
significant

[[Page 81198]]

change in DHS's practice that could lead to unreasonable delays. And 
because CBP continues to encounter individuals and to take them into 
custody 24 hours a day and 7 days a week, that change would be 
inconsistent with the imperative to facilitate the prompt operation of 
the expedited removal process, especially during the emergency border 
circumstances when this rule applies.
---------------------------------------------------------------------------

    \161\ See DHS, M-444 Information About Credible Fear Interview 
(May 10, 2023) (noting that the interview will occur no earlier than 
24 hours after receipt of the form without mention of any tolling or 
stoppage).
    \162\ See, e.g., EOIR, List of Pro Bono Legal Service Providers 
(Noncitizens in U.S. Customs and Border Protection Custody) (July 
2024), https://www.justice.gov/eoir/page/file/1582586/dl.
    \163\ The consultation period also was not tolled for weekends, 
holidays, or periods outside of normal business hours under the 48-
hour approach that predated the 24-hour approach. See Memorandum for 
Andrew Davidson, Acting Deputy Dir., USCIS, from John L. Lafferty, 
Chief, Asylum Div., USCIS, Re: Scheduling of Credible Fear 
Interviews (May 10, 2023) (``Under the current policy, credible fear 
interviews have generally taken place at least 48 hours after the 
time of the noncitizen's arrival at the detention facility, unless 
the noncitizen specifically requests to be interviewed more 
quickly.'').
---------------------------------------------------------------------------

    In addition, when a noncitizen receives a negative credible fear 
determination, the noncitizen also has an additional opportunity to 
consult before review of that determination by an IJ (if requested). 
INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv). Noncitizens can 
obtain counsel or consult with other individuals of their choosing and 
seek to introduce new evidence before IJs, allowing for additional 
consultation beyond the initial 4 hours. INA 235(b)(1)(B)(iv), 8 U.S.C. 
1225(b)(1)(B)(iv); 8 CFR 1003.42(c). That additional consultation 
opportunity further reinforces the Departments' view that the minimum 
4-hour consultation period prior to the credible fear interview does 
not undermine their decision to adopt the changes made by the IFR and 
this rule.
    In response to comments alleging that legal representatives have 
been excluded from credible fear interviews, the Departments again note 
that neither this rule nor the consultation period policy changes the 
procedures and regulations governing attorney participation during 
credible fear interviews. Under existing regulations, all noncitizens 
are afforded the opportunity to have a person or persons of their 
choosing present, including by phone, during their credible fear 
interview. 8 CFR 208.30(d)(4). In any case where USCIS has received a 
properly executed G-28, Notice of Entry of Appearance as Attorney or 
Accredited Representative, prior to the credible fear interview, asylum 
office staff notify the attorney or accredited representative of the 
scheduled interview date and time, and the AO must call the attorney or 
representative before beginning the interview so the attorney or 
representative may be present. If the AO is unable to reach the 
attorney or accredited representative, the AO documents this in the 
interview notes and asks the noncitizen if the noncitizen would like to 
proceed without the attorney or accredited representative present. 
Guidance instructs that, where a properly executed Form G-28 is on 
file, asylum office staff will attempt to ensure that the attorney or 
accredited representative is present at the interview if the noncitizen 
desires such a person's presence. Further, as long as it does not 
unreasonably delay the process, the asylum office has discretion to 
reschedule interviews on a case-by-case basis to ensure that an 
attorney or accredited representative may attend. At the beginning of 
the credible fear interview, if it has not already been established 
through a Form G-28, the AO asks the noncitizen if the noncitizen has 
an attorney or consultant and verifies whether the noncitizen received 
a list of free or low-cost legal service providers. If the noncitizen 
does not have an attorney or consultant present, the AO reminds the 
noncitizen that the noncitizen may have an attorney or consultant 
present during the interview and asks the noncitizen if the noncitizen 
wants to continue with the interview without an attorney or consultant 
present. In addition, as noted above, if a noncitizen requests to 
reschedule the interview for reasons that constitute extraordinary 
circumstances, such as illness of the noncitizen's consultant or 
technical issues that prevented the noncitizen from contacting a 
consultant, such requests may be accommodated. If there are individual 
instances where commenters believe legal representatives have been 
excluded from a credible fear interview contrary to the wishes of a 
noncitizen, commenters should lodge those complaints through the proper 
channels,\164\ but the Departments emphasize that the present rule does 
not change the regulatory provisions that govern who may be present 
during the credible fear interview or impact how asylum office staff 
ensure those provisions are enforced.
---------------------------------------------------------------------------

    \164\ See USCIS, Report USCIS Employee Misconduct (last 
reviewed/updated Mar. 15, 2024), https://www.uscis.gov/scams-fraud-and-misconduct/report-uscis-employee-misconduct; see also DHS, Make 
a Civil Rights Complaint (last updated Aug. 20, 2024), https://www.dhs.gov/file-civil-rights-complaint.
---------------------------------------------------------------------------

    As for the credible fear interview itself, as discussed more fully 
below in Section III.C.3 of this preamble, even with the heightened 
screening standard for those found not to have a significant 
possibility of demonstrating eligibility for asylum under this rule's 
limitation on asylum eligibility, the type of information sought to be 
elicited during a credible fear interview is well within a noncitizen's 
knowledge, such that having an attorney is not necessary to secure a 
positive outcome. 89 FR at 48747-48. Indeed, even after implementation 
of the IFR, the experience of DHS has been that noncitizens who do not 
have an attorney or consultant present during the credible fear 
interview are often able to successfully satisfy the ``reasonable 
probability'' screening standard.\165\ Additionally, under the IFR and 
this rule, a noncitizen may request IJ review of an AO's negative 
credible fear determination, which provides an additional layer of 
protection, including for those noncitizens who are unable to consult 
with an attorney.
---------------------------------------------------------------------------

    \165\ See OHSS analysis of data pulled from CBP UIP on September 
3, 2024, and data pulled from Global on September 11, 2024 (Fear by 
Atty or Cons Present tab).
---------------------------------------------------------------------------

    With respect to commenters' reliance on data that purport to show 
that few noncitizens are able to secure the assistance of counsel 
during the credible fear process and that those who do receive better 
outcomes, the Departments note that such data fail to take into account 
any screening that may occur by legal service providers to determine 
the perceived validity of the claim before agreeing to provide 
representation to a noncitizen. Even assuming some instances of 
improved results for those with counsel, due process ``does not mandate 
that all governmental decisionmaking comply with standards that assure 
perfect, error-free determinations.'' Mackey v. Montrym, 443 U.S. 1, 13 
(1979). Moreover, as discussed in Section II.A.2 of this preamble, 51 
percent of SWB encounters between POEs referred to the credible fear 
process under the rule--including many who did not have an attorney or 
consultant present during the credible fear interview--have received a 
positive result.\166\
---------------------------------------------------------------------------

    \166\ See OHSS analysis of data pulled from CBP UIP on September 
3, 2024, and data pulled from Global on September 11, 2024 (Fear by 
Atty or Cons Present tab).
---------------------------------------------------------------------------

    With regard to commenter concerns about lack of privacy during 
credible fear interviews, DHS notes that these interviews are conducted 
``separate and apart from the general public.'' 8 CFR 208.30(d). The 
Departments are mindful of their duties under 8 CFR 208.6 and 1208.6 to 
prevent unauthorized disclosure of records pertaining to any credible 
fear determination, and AOs are required to explain these 
confidentiality requirements to noncitizens prior to credible fear 
interviews.\167\ For those going through the consultation and credible 
fear process in CBP custody, noncitizens consulting with an attorney or 
other individual before a credible fear interview do so in a private 
phone booth. USCIS contract interpreters

[[Page 81199]]

conducting telephonic interpretation are bound by the confidentiality 
requirements protecting all credible fear determinations pursuant to 8 
CFR 208.6 \168\ and must pass all required DHS background checks 
applicable to contractors.\169\ All AOs receive training on working 
with interpreters, which includes explaining confidentiality, assessing 
competency, and recognizing other factors that may affect the accuracy 
of interpretation.\170\ AOs are trained to elicit all relevant 
testimony during credible fear interviews \171\ and will not 
preemptively issue negative credible fear determinations due to phone 
connectivity issues. And all AOs receive training on interviewing 
survivors of torture and other severe trauma.\172\
---------------------------------------------------------------------------

    \167\ See USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview 19-20 
(Apr. 24, 2024); USCIS, RAIO Directorate--Officer Training: 
Interviewing--Working With An Interpreter 14, 30 (Apr. 24, 2024).
    \168\ See USCIS, RAIO Directorate--Officer Training: 
Interviewing--Working With An Interpreter 14, 30 (Apr. 24, 2024); 
see also USCIS, Credible Fear Procedures Manual sec. III.E.3.d (May 
10, 2023), https://www.uscis.gov/sites/default/files/document/guides/CredibleFearProceduresManual.pdf.
    \169\ See DHS, Fact Sheet: Contractor Fitness at DHS, https://www.dhs.gov/sites/default/files/publications/personnel_security_contractor_fitness_fact_sheet_new.pdf (last 
visited Sept. 20, 2024).
    \170\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Working with an Interpreter 14, 17-22, 24, 30, 43-44 (Apr. 24, 
2024).
    \171\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony 11 (Apr. 24, 2024) (``In cases requiring an 
interview, although the burden is on the applicant to establish 
eligibility, equally important is your obligation to elicit all 
pertinent information.''); id. at 12 (``It is your duty to fully and 
fairly develop the record by eliciting information from the 
interviewee, probing for additional information, and following up on 
the interviewee's statements.'').
    \172\ USCIS, RAIO Directorate--Officer Training: Interviewing 
Survivors of Torture and Other Severe Trauma (Apr. 24, 2024).
---------------------------------------------------------------------------

    The Departments therefore decline to amend in this rule existing 
practices with respect to credible fear proceedings based on 
commenters' concerns about noncitizens' ability to obtain and consult 
with counsel. Nothing in the rule alters noncitizens' existing ability 
to consult with persons of their choosing prior to the credible fear 
interview, see INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv), or 
prior to IJ review of a negative credible fear determination, see 8 CFR 
1003.42(c). The Departments believe that any minimal adverse impact on 
the ability to retain counsel resulting from the rule and changes in 
DHS's practices are outweighed by the significant benefits to 
efficiency that the rule and DHS's changed practices promote. In 
addition, the Departments do not believe that the limitation on asylum 
eligibility or the heightened ``reasonable probability'' standard 
applied to those who do not establish a credible fear of persecution 
for asylum purposes due to the limitation require significant 
development prior to the credible fear interview. At the screening 
stage, the information pertinent to the limitation--including the 
existence of exceptionally compelling circumstances--and the reasons 
for the noncitizen's fear of persecution or torture are reasonably 
expected to be within the noncitizen's personal knowledge at the time 
of the credible fear interview. See 89 FR at 48747-48. And as explained 
in the IFR, AOs and IJs are trained on and have extensive experience 
eliciting such information from noncitizens. Id. at 48747-48 & nn.241-
44. The Departments do not seek to diminish the importance of being 
able to consult with a person or persons of the noncitizen's choosing 
during the screening process as provided by statute, see INA 
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv), but the Departments also 
do not believe that the information required for the screening process 
under the IFR and this rule is such that the screening interviews must 
be significantly delayed to allow for greater consultation time. Doing 
so in the context of emergency border circumstances would 
``unreasonably delay the process.'' INA 235(b)(1)(B)(iv), 8 U.S.C. 
1225(b)(1)(B)(iv).
    As to commenters' arguments that ensuring legal representation 
increases efficiency, discourages frivolous claims, shortens the time 
required to determine a claim, and reduces the number of appeals and 
repeat claims, the Departments note that even assuming those claims are 
true, ensuring legal representation for all noncitizens would impose 
extraordinary burdens on DHS and would undermine the speed that 
Congress sought to achieve in the expedited removal system. Moreover, 
because Congress refrained from creating an unqualified right to legal 
representation, the approach adopted in this rule accords with the 
statute and is a reasonable exercise of the Departments' discretion. 
See INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv) (providing the 
noncitizen only an opportunity to ``consult'' with a person prior to a 
credible fear interview).
(3) Noncitizens' Ability To Have Their Claims Heard
    Comment: Commenters stated that a quota system would deny 
vulnerable individuals and families the opportunity to have their 
claims fairly considered, in contravention of U.S. and international 
law. Similarly, a commenter stated that, by imposing a cap on daily 
asylum claims and automatically denying asylum to those who exceed the 
limit, the IFR ``nullifies fundamental rights that the United States is 
obligated to uphold.'' The commenter wrote that this ``blanket denial'' 
would deviate from due process principles under U.S. and international 
law that mandate non-refoulement and the individualized assessment of 
asylum claims. Commenters also stated that the IFR strips away the 
humane aspects of the asylum system.
    Response: The Departments do not believe that the rule affords 
noncitizens an insufficient opportunity to have their asylum or 
protection claims heard, and the rule's limitation on eligibility 
includes no automatic ``blanket denials'' based on quotas or caps. 
Instead, during the emergency border circumstances described in the 
Proclamation, in the IFR, and in this rule--which relate to encounter 
levels as described in Section III.D.1 of this preamble--the rule's 
provisions (which are consistent with U.S. domestic and international 
law, as discussed in Section III.A.1 of this preamble) impose a 
limitation on asylum eligibility (with an appropriate exception) and 
changes to the expedited removal and credible fear process aimed at 
providing the Departments a greater ability to deliver timely decisions 
and consequences to noncitizens encountered along the southern border. 
The rule does so while ensuring that those in expedited removal 
proceedings who fear removal continue to have their fear claims heard.
    First, all noncitizens processed for expedited removal who manifest 
a fear of return, express an intention to apply for asylum or 
protection, or express a fear of persecution or torture or a fear of 
return to their country or the country of removal are referred for a 
credible fear interview, as appropriate. See INA 235(b)(1)(A)(ii), 8 
U.S.C. 1225(b)(1)(A)(ii); 8 CFR 235.15(b)(4). Such referrals occur 
irrespective of how many noncitizens have presented at the border or 
sought protection on a given day.
    Second, this rule does not change the longstanding procedural 
protections that are provided to noncitizens during these credible fear 
interviews. Credible fear interviews are conducted in a non-adversarial 
manner,\173\ and all AOs are

[[Page 81200]]

trained in non-adversarial interview techniques to facilitate their 
duty to elicit relevant and useful information--in effect, to help the 
noncitizen meet their burden through testimony alone.\174\ 8 CFR 
208.1(b). AOs are also trained to consult country conditions 
information, which often provides context to a noncitizen's claim. Id. 
In evaluating whether a noncitizen has shown a credible fear, AOs are 
instructed by statute to take into account the credibility of the 
statements made by the noncitizen and such other facts as are known to 
the AO. INA 235(b)(1)(B)(ii)-(iii), 8 U.S.C. 1158(b)(1)(B)(ii)-(iii). 
Just as a noncitizen's testimony alone without corroboration may be 
sufficient to establish the noncitizen meets the definition of a 
refugee where it is credible, persuasive, and refers to specific facts, 
INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii), a noncitizen's 
testimony alone, in the credible fear context, may meet the burden to 
demonstrate a credible fear of persecution or torture.\175\ 
Accordingly, insofar as it is part of a credible fear determination, 
credible testimony and evidence available to the AO alone may be 
sufficient to demonstrate a significant possibility that the noncitizen 
could show that the noncitizen is eligible for the ``exceptionally 
compelling circumstances'' exception to this rule's limitation on 
asylum eligibility. The procedures outlined above do not depend on how 
many noncitizens have presented at the border or have sought protection 
on a given day.
---------------------------------------------------------------------------

    \173\ USCIS, RAIO Directorate--Officer Training: Interviewing--
Introduction to the Non-Adversarial Interview 13-15 (Apr. 24, 2024). 
As described in a previous rule, AOs have experience in ``country 
conditions and legal issues, as well as nonadversarial interviewing 
techniques,'' and they have ``ready access to country conditions 
experts.'' Procedures for Credible Fear Screening and Consideration 
of Asylum, Withholding of Removal, and CAT Protection Claims by 
Asylum Officers, 86 FR 46906, 46918 (Aug. 20, 2021).
    \174\ See, e.g., USCIS, RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony 11-12 (Apr. 24, 2024).
    \175\ See USCIS, RAIO Directorate--Officer Training: Credible 
Fear of Persecution and Torture Determinations 19 (May 9, 2024); see 
also Kiakombua v. Wolf, 498 F. Supp. 3d 1, 46-47 (D.D.C. 2020) 
(asylum officer (``AO'') cannot require an applicant to provide 
corroborating evidence at the credible fear stage where the 
applicant's testimony is otherwise found credible).
---------------------------------------------------------------------------

    Third, all negative credible fear determinations are reviewed by a 
supervisory AO prior to becoming final, see 8 CFR 208.30(e)(8), and, 
consistent with the sole statutorily provided mechanism for review of 
negative credible fear determinations, see INA 235(b)(1)(B)(iii)(III), 
8 U.S.C. 1225(b)(1)(B)(iii)(III), noncitizens may request review of a 
negative credible fear determination before an IJ, see 8 CFR 
208.35(b)(2)(iii)-(v) (explaining the process for requesting IJ review 
for those described in the Proclamation and unable to show that the 
rule's exception to the limitation on asylum eligibility applies).
    Unlike the process that applies to negative credible fear 
determinations under 8 CFR 208.30(g)(1)(i), during which a noncitizen's 
refusal or failure to request or decline IJ review is treated as a 
request for IJ review, noncitizens under the present rule must indicate 
whether they desire IJ review when asked, see 8 CFR 208.35(b)(2)(iv). 
When serving the negative credible fear determination, USCIS staff read 
the contents of the Form I-869SBIFR, Record of Negative Credible Fear 
and Reasonable Probability Finding and Request for Review by 
Immigration Judge for Noncitizens Subject to the Limitation on Asylum 
Eligibility Pursuant to 8 CFR 208.35(a), to the noncitizen in a 
language the noncitizen understands, using an interpreter if 
needed.\176\ The Form I-869SBIFR includes a statement that the 
noncitizen may request that an IJ review the negative determination and 
that, if the noncitizen does not request IJ review, the noncitizen will 
not receive review by an IJ and may be removed from the United States 
immediately. The noncitizen then must check one of two boxes on the I-
869SBIFR indicating either that the noncitizen requests IJ review or 
does not request IJ review. The noncitizen will be referred to an IJ 
for review of a negative determination only where the noncitizen 
requests such review. 8 CFR 208.35(b)(2)(iv)-(v). Under the IFR and 
this rule, IJ review remains available in all cases with a negative 
credible fear determination, and such review includes an opportunity 
for the noncitizen to be heard and questioned by the IJ. INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 
208.35(b)(2), 1208.35(b)(1) and (2). Additionally, while it is not 
equivalent to another level of review, USCIS retains the sole 
discretion to reconsider its own negative credible fear determination 
following IJ concurrence. 8 CFR 208.35(b)(2)(v)(B). Thus, the rule 
maintains review of any negative credible fear determination by a 
supervisory AO prior to service and, following service of a negative 
credible fear determination, the opportunity to have an IJ review the 
finding de novo. See 8 CFR 1208.35(b)(1).
---------------------------------------------------------------------------

    \176\ Following issuance of this rule, the form will be 
designated I-869SB instead of I-869SBIFR.
---------------------------------------------------------------------------

    As discussed above in this section of the preamble, the Departments 
believe these processes are adequate in light of the high levels of 
training received by adjudicators and the high volume of cases before 
the Departments.
(4) Issues With Asylum Officers, Detention Conditions, and Quality of 
Credible Fear Determinations
    Comment: Several commenters expressed concern with the conduct of 
AOs during credible fear interviews and suggested that AOs are ill-
equipped to conduct the analysis the rule requires, including applying 
the ``exceptionally compelling circumstances'' exception to the 
limitation and screening fear claims at a higher evidentiary standard. 
Some commenters stated that they are aware of instances where AOs have 
failed to comply with established guidelines during credible fear 
interviews and that translation issues, such as Indigenous language 
speakers being interviewed in Spanish, exist in some cases. One 
commenter recounted examples of noncitizens who, the commenter 
believes, were wrongly issued negative credible fear determinations; 
the commenter said that noncitizens' statements were incorrectly 
translated by interpreters and that noncitizens were not adequately 
asked about their experiences or were interrupted by AOs during 
screenings. Other commenters discussed alleged violations of the 
credible fear interview procedures experienced by noncitizens, such as 
alleged failures to address language barriers, that prevent noncitizens 
from adequately telling their stories, resulting in refoulement.
    An organizational commenter discussed its experience with clients 
who it contends were wrongfully deported and returned to violence, 
stating that the rule will only increase the frequency with which USCIS 
errs in conducting credible fear screenings and IJs err in reviewing 
credible fear determinations. Commenters emphasized that hearings take 
place shortly after noncitizens have endured lengthy and traumatic 
journeys to reach the United States and asserted that they take place 
while noncitizens are in detention facilities with deplorable 
conditions. Commenters stated that the harm caused by the IFR will be 
exacerbated by expedited removal policies such as conducting credible 
fear interviews while noncitizens are in CBP custody. A commenter 
stated that courts have questioned the reliability of credible fear 
interviews because of the expedited and stressful nature of the 
process.
    Response: The Departments take any allegations of misconduct by AOs 
or other government officials seriously, and there are existing 
channels available to report any such alleged

[[Page 81201]]

misconduct.\177\ To the extent that commenters suggested that examples 
where they believe AOs failed to follow existing guidance related to 
credible fear screenings or failed to conduct a fair credible fear 
interview are representative of AOs generally and are grounds for 
reasoning that AOs are ill-equipped to perform credible fear screenings 
under the current rule, the Departments disagree with these assertions 
and find them unpersuasive. Instances where commenters believe AOs 
failed to conduct credible fear interviews fairly should be reported 
through the proper channels and will be addressed on a case-by-case 
basis, but these anecdotal complaints do not dissuade the Departments 
from concluding that AOs are capable of performing their duties under 
this rule. These complaints about AO conduct in specific credible fear 
interviews do not undermine the statutorily prescribed role of AOs to 
conduct credible fear interviews and make credible fear determinations, 
and the Departments are confident, for the reasons explained above, 
that AOs have the necessary training and expertise to fulfill that 
role.
---------------------------------------------------------------------------

    \177\ See USCIS, Report USCIS Employee Misconduct (last 
reviewed/updated Mar. 15, 2024), https://www.uscis.gov/scams-fraud-and-misconduct/report-uscis-employee-misconduct; see also DHS, Make 
a Civil Rights Complaint (last updated Aug. 20, 2024), https://www.dhs.gov/file-civil-rights-complaint.
---------------------------------------------------------------------------

    As discussed in Section III.A.1.c of this preamble, the rule 
operates within the expedited removal and credible fear screening 
process established by section 235 of the INA, 8 U.S.C. 1225, and 
comports with all statutory requirements. Under the credible fear 
statutory framework, AOs conduct credible fear screening interviews. 
INA 235(b)(1)(B)(i), 8 U.S.C. 1225(b)(1)(B)(i). By definition, AOs are 
individuals who have had professional training in country conditions, 
asylum law, and interview techniques comparable to that provided to 
full-time adjudicators of asylum applications under section 208 of the 
INA, 8 U.S.C. 1158. INA 235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E). They are 
supervised by officers who meet the same training requirements and have 
had substantial experience adjudicating asylum applications. INA 
235(b)(1)(E), 8 U.S.C. 1225(b)(1)(E). AOs conducting credible fear 
interviews do so in a non-adversarial manner, beginning with ensuring 
the noncitizen understands the purpose of the interview, that the 
noncitizen has a right to have a legal representative or other person 
of the noncitizen's choosing present during the interview, and that the 
noncitizen understands the interpreter, where applicable. 8 CFR 
208.30(d). USCIS has language access policies in place to ensure that 
noncitizens have an interpreter for a language they understand during 
credible fear interviews and procedures in place that all AOs must 
follow to address instances where rare language interpreters may not be 
available, including issuing a discretionary NTA in certain 
circumstances. After the noncitizen has received an NTA, the 
noncitizen's language barrier can be addressed in proceedings before an 
IJ. At the beginning of a credible fear interview, AOs explain to 
noncitizens the confidentiality provisions governing credible fear 
interviews pursuant to 8 CFR 208.6, including that the AO and 
interpreter will keep the noncitizen's information and testimony 
confidential. The AO verifies that the noncitizen is comfortable 
proceeding with the interpreter and the AO of the given gender. AOs 
also ask noncitizens if there are any issues that could affect their 
ability to testify, such as a language barrier or health issue, and 
deal with any such issue according to established procedures. All 
credible fear determinations, including those in which the IFR 
limitation on asylum eligibility applies, are reviewed by supervisory 
AOs before becoming final and being served on the noncitizen, and this 
will remain true under the final rule. 8 CFR 208.30(e)(8). Supervisory 
review includes ensuring that AOs follow all applicable procedures and 
guidelines related to language access and other issues that could 
impede the noncitizen's ability to effectively communicate during a 
credible fear interview.
    As already explained, AOs are specifically trained on eliciting 
testimony, working with interpreters, engaging in cross-cultural 
communication, detecting possible victims of trafficking, and 
interviewing vulnerable populations, including survivors of torture and 
other severe trauma. In addition to receiving specialized training on 
interviewing and eliciting testimony, AOs are trained on and well-
versed in applying substantive asylum law in both full asylum 
adjudications and in screening determinations. As explained in the IFR, 
AOs and supervisory AOs have the training and experience necessary to 
identify in a screening whether the information the noncitizen has 
provided is sufficiently specific to lead them to believe that the 
noncitizen may be able to establish eligibility at the merits stage. 89 
FR at 48748. AOs frequently assess physical and psychological harm when 
adjudicating asylum applications and are trained to do so in a 
sensitive manner.\178\ AOs may also evaluate harm resulting from the 
unavailability of necessary medical care or specific medications when 
assessing ``other serious harm'' under 8 CFR 208.13(b)(1)(iii)(B) in 
full asylum adjudications.\179\ When conducting a credible fear 
interview where the IFR's limitation on asylum eligibility applies, 
AOs' questioning will necessarily include information related to 
whether there is a significant possibility that the noncitizen would 
ultimately be able to demonstrate by a preponderance of the evidence 
that the limitation on asylum eligibility does not apply or that the 
noncitizen satisfies the rule's exception, regardless of whether the 
noncitizen affirmatively raises the issue. Since May 11, 2023, when the 
Circumvention of Lawful Pathways rule went into effect, AOs and 
supervisory AOs have evaluated the exceptionally compelling 
circumstances grounds for rebutting the presumption of asylum 
ineligibility under that rule, including the enumerated examples of an 
acute medical emergency, imminent and extreme threat to life or safety, 
and satisfying the definition of a victim of a severe form of 
trafficking in persons. 8 CFR 208.33(a)(3). The enumerated examples 
mirror the enumerated examples of exceptionally compelling 
circumstances that except noncitizens from the limitation on asylum 
eligibility under the IFR and this rule, see 8 CFR 208.35(a)(2), so not 
only have AOs and supervisory AOs been implementing this approach since 
the IFR was implemented, but they also already had considerable 
experience in eliciting testimony related to the ``exceptionally 
compelling circumstances'' exception and determining whether that 
exception applied in the context of the Circumvention of Lawful 
Pathways rule. Likewise, IJs have extensive experience and training in 
applying such concepts to individual cases under the Circumvention of 
Lawful Pathways rule and the IFR.\180\ Accordingly, the

[[Page 81202]]

Departments believe that IJs and AOs will continue to fairly and 
competently examine the facts and circumstances of each individual's 
case to determine whether the individual has established a significant 
possibility that the individual would ultimately be able to demonstrate 
by a preponderance of the evidence that the limitation on asylum 
eligibility does not apply or that the individual satisfies the rule's 
exception.
---------------------------------------------------------------------------

    \178\ For example, AOs adjudicate cases involving forms of 
persecution like female genital mutilation, forced abortion, and 
forced sterilization. See Matter of Kasinga, 21 I&N Dec. 357 (BIA 
1996); INA 101(a)(42)(B), 8 U.S.C. 1101(a)(42)(B); see also USCIS, 
RAIO Directorate--Officer Training: Gender-Related Claims 23-27 
(Apr. 24, 2024).
    \179\ See USCIS, RAIO Directorate--Officer Training: Definition 
of Persecution and Eligibility Based on Past Persecution 56-57 (Apr. 
24, 2024).
    \180\ See 8 CFR 1003.0(b)(1)(vii) (EOIR Director's authority to 
``[p]rovide for comprehensive, continuing training and support'' for 
IJs); 8 CFR 1003.9(b)(1)-(2) (Chief IJ's authority to issue 
``procedural instructions regarding the implementation of new 
statutory or regulatory authorities'' and ``[p]rovide for 
appropriate training of the [IJs] . . . on the conduct of their 
powers and duties''); EOIR, Legal Education and Research Services 
Division (last updated Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division (``The Legal 
Education and Research Services Division (LERS) develops and 
coordinates headquarters and nationwide substantive legal training 
and professional development for new and experienced judges, 
attorneys, and others within EOIR who are directly involved in 
EOIR's adjudicative functions. LERS regularly distributes new 
information within EOIR that includes relevant legal developments 
and policy changes from U.S. government entities and international 
organizations.'').
---------------------------------------------------------------------------

    The Departments consider the commenters' concerns about the quality 
of determinations unfounded. USCIS AOs and supervisory AOs have 
received the same thorough training and materials related to applying 
the IFR across offices and jurisdictions. Asylum staff nationwide use 
the Global case management system,\181\ which includes updated 
interview guides, forms, and instructions for processing cases under 
the IFR to ensure consistency in procedures and substantive guidelines. 
All credible fear determinations, as noted above, are subject to review 
by a supervisory AO, 8 CFR 208.30(e)(8), and IJ (if requested), INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III), and 
determinations made in section 240 removal proceedings are subject to 
administrative appeal and judicial review.
---------------------------------------------------------------------------

    \181\ USCIS, Privacy Impact Assessment Update for the USCIS 
Asylum Division, at 4 (2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-uscis-asylum-september2018.pdf.
---------------------------------------------------------------------------

    Regarding concerns about noncitizens going through the credible 
fear process while in CBP custody, the Departments disagree with the 
contention that such a process causes or exacerbates harm. Noncitizens 
who are going through the credible fear process in CBP custody are 
given at least 4 hours between 7 a.m. and 7 p.m. to telephonically 
consult with an individual of their choosing, including legal counsel, 
before their credible fear interview. Additionally, the noncitizens are 
afforded privacy for these consultations, which occur in a private 
phone booth. These phones and phone booths are also used to conduct the 
credible fear interview.
    Additionally, to the extent that commenters have generalized 
concerns about conditions in CBP custody, such comments are outside the 
scope of this rule. DHS notes, however, that it is committed to 
providing safe, sanitary, and humane conditions to all individuals in 
custody, and that it is committed to transferring individuals out of 
CBP custody in an expeditious manner. The Departments further note that 
one anticipated effect of this rule is to reduce the risk of 
overcrowding in DHS detention facilities. See 89 FR at 48742 (noting 
that ``[h]igh [encounter] numbers, such as those giving rise to the 
Proclamation and this rule, increase the likelihood that USBP 
facilities will become quickly overcrowded . . . [which] creates health 
and safety concerns for noncitizens and Government personnel'').
(5) Fairness or Risks Associated With Process
    Comment: Commenters stated that the rule would undermine the 
commitment of the United States to providing refuge for those fleeing 
persecution and violence and exacerbate the humanitarian crisis at the 
southern border. Other commenters stated that the rule would increase 
refoulement and that the Departments did not adequately consider this 
consequence. Commenters asserted that the rule could cause arbitrary 
denials of asylum, thus placing noncitizens back into harm's way and 
resulting in life-threatening outcomes. A commenter asserted that the 
IFR ignores the realities of initial fear screenings (including that 
individuals have often experienced a long and difficult journey, 
undergo screenings within days of arrival, and may face barriers to 
accessing counsel and language services) and establishes an even higher 
screening standard that may prevent noncitizens from factually 
presenting claims before an AO. A commenter stated that a decline in 
positive credible fear determinations under the Circumvention of Lawful 
Pathways rule is a result of an orchestrated effort to reduce the 
screen-in rate by erecting barriers to eligibility and attorney 
consultation and eroding due process protections, not the result of the 
appropriate screening out of claims that would in fact be non-
meritorious, as suggested by the Departments in the IFR.
    Some commenters discussed the existing difficulties that 
noncitizens in CBP custody have in obtaining what they need, such as a 
pen and paper to write down essential information, access to counsel, 
and access to private phone services. Some commenters stated that they 
have witnessed failures by USCIS and EOIR to notify attorneys of their 
clients' interviews and immigration court reviews.
    Response: The present rule complies with all statutory and 
regulatory requirements related to access to counsel, including the 
right of a noncitizen to access counsel at no cost to the Government, 
the right to consult with a person of the noncitizen's choosing prior 
to the credible fear interview, and the right to have a person of the 
noncitizen's choosing (including a legal representative) present during 
the interview, provided it will not cause unreasonable delay. INA 
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); 8 CFR 208.30(d)(4). 
Moreover, in addition to protecting the procedural safeguards 
guaranteed by statute, the rule also ensures the United States honors 
its non-refoulement obligations under international law by screening 
for statutory withholding and protection under regulations implementing 
the CAT, even where a noncitizen is subject to the rule's limitation on 
asylum eligibility and cannot establish that the rule's exception 
applies under the significant possibility standard. 8 CFR 208.35(b)(2). 
Contrary to commenters' assertions that noncitizens may be prevented 
from presenting factual claims to an AO where they are subject to the 
IFR's limitation on asylum eligibility, AOs elicit testimony, and 
noncitizens have the opportunity to present testimony and other 
evidence relevant to a potential persecution or torture claim, even 
where the limitation applies and no exception is established during the 
credible fear interview; this allows the AO to effectively screen the 
noncitizen for a reasonable probability of persecution or torture. 8 
CFR 208.35(b)(2)(i). Indeed, the experience of USCIS with the IFR since 
its implementation illustrates that noncitizens are still able to meet 
the higher reasonable probability standard in approximately 48 percent 
of cases where the IFR's limitation on asylum eligibility applies and 
no exception is established during the credible fear interview.\182\
---------------------------------------------------------------------------

    \182\ OHSS analysis of data pulled from CBP UIP on September 3, 
2024 (Fear Screening--STB tab).
---------------------------------------------------------------------------

    Further, while a commenter suggested that the drop in the overall 
screen-in rate under the Circumvention of Lawful Pathways rule resulted 
from barriers to eligibility or to counsel and the erosion of due 
process rights, as opposed to screening out more potentially non-
meritorious cases under the higher ``reasonable possibility'' standard 
in the

[[Page 81203]]

IFR, see 89 FR at 48746, a more granular examination of the various 
screen-in rates undermines the commenter's assertion. In fact, SWB 
encounter credible fear screen-in rates for screenings conducted by 
USCIS under the significant possibility standard remain consistent or 
increase when comparing (1) interviews that took place in the pre-
pandemic period (76 percent positive); (2) interviews that took place 
under the Circumvention of Lawful Pathways rule where the presumption 
of asylum ineligibility applied but an exception was established (79 
percent positive) or the presumption was rebutted (86 percent 
positive); and (3) interviews that took place under the IFR where the 
IFR's limitation on asylum eligibility applied but the IFR's exception 
was applicable (81 percent positive).\183\ If anything, then, the 
screen-in rate at the significant possibility standard is higher under 
the Circumvention of Lawful Pathways rule and under the IFR, 
notwithstanding commenters' claims that factors such as difficulty in 
accessing counsel necessarily reduce screen-in rates. Rather, USCIS 
screen-in rates for USBP encounters effectively drop only when AOs 
apply the higher substantive standards, dropping (1) to approximately 
51 percent for cases screened at the reasonable possibility standard 
where the Circumvention of Lawful Pathways presumption of asylum 
eligibility applies and no exception or rebuttal is established; and 
(2) to approximately 48 percent for cases screened at the reasonable 
probability standard where the IFR's limitation on asylum eligibility 
applies and no exception is established.\184\ Accordingly, the analysis 
provided by the Departments in the IFR concluding that the drop in 
screen-in rates under the higher ``reasonable possibility'' standard 
relates to the merits of the potential claim, see 89 FR at 48746, 
remains supported and is only further bolstered by the experience of 
the Departments in implementing the IFR.
---------------------------------------------------------------------------

    \183\ OHSS analysis of June 2024 Enforcement Lifecycle data, 
July 2024 Persist Dataset, and data downloaded from UIP on September 
3, 2024 (Summary Statistics tab; Fear Screening--CLP tab; Fear 
Screening--STB tab).
    \184\ OHSS analysis of June 2024 Enforcement Lifecycle data, 
July 2024 Persist Dataset, and data downloaded from UIP on September 
3, 2024 (Fear Screening--CLP tab and Fear Screening--STB tab).
---------------------------------------------------------------------------

    The IFR acknowledges that the rule's manifestation of fear and 
reasonable probability standards may increase the risk that some 
noncitizens with meritorious claims may not be referred for credible 
fear interviews or may not receive a positive credible fear 
determination. 89 FR at 48767. It also explains that there may be costs 
to noncitizens that result from their removal--indeed, such costs are 
likely. Id. Thus, the Departments did consider these risks, and they 
have continued to consider these risks in finalizing this rule.
    The Departments weighed the fact that, despite the protections 
preserved by the rule, the available exception, and the training and 
expertise of DHS personnel, the changes to the credible fear process 
adopted may result in the denial of asylum when such an asylum claim 
otherwise may have been granted. Id. at 48750 n.250. As with all 
screening mechanisms, there is some risk that a case that might 
otherwise lead to a grant of asylum might not proceed to a merits 
adjudication, id., but as discussed in Sections III.C.2.c and 
III.B.2.a.ii of this preamble, DHS personnel have significant 
experience and training in recognizing and interviewing noncitizens 
with protection claims, which the Departments believe will minimize the 
frequency of such cases. Regardless, in light of the emergency border 
circumstances facing the Departments and addressed in the Proclamation 
and this rule, the Departments believe these measures are appropriate, 
necessary, and legally permissible. Id. And given the emergency border 
circumstances facing the Departments and the gap between high rates of 
referrals and screen-ins during the immediate post-pandemic period and 
historic ultimate grant rates, as described in Section II.A.2 of this 
preamble, the Departments believe the rule's provisions are appropriate 
and justified even if certain close cases result in imperfect outcomes. 
Id. As with other conditions and limitations imposed under section 
208(b)(2) of the INA, 8 U.S.C. 1158(b)(2), this rule is grounded in 
important policy objectives, including providing those with valid 
asylum claims an opportunity to have their claims heard in a timely 
fashion, preventing an increased flow of migrants arriving at the 
southern border that would overwhelm DHS's ability to provide safe and 
orderly processing, and reducing the role of exploitative TCOs and 
smugglers. The Departments have determined that these important 
policies outweigh whatever marginal impact on meritorious claims the 
rule might have.
    DHS serves noncitizens with all the necessary documents related to 
their credible fear determination, 8 CFR 208.30(f)-(g), which for 
noncitizens in detention may be served through a telephone call by 
USCIS, during which information on the noncitizen's determination is 
relayed in a language that the noncitizen understands, while CBP or ICE 
personnel physically provide the documents to a noncitizen. While any 
person may consult with a noncitizen in the credible fear process, DHS 
provides copies of documents only to legal representatives who have 
completed a fully executed Form G-28.\185\ Although commenters 
expressed concern about the burden of obtaining consent and a signature 
from a detained noncitizen, the Departments must balance the sensitive 
nature of credible fear interviews and the importance of 
confidentiality pursuant to the nondisclosure provisions in 8 CFR 
208.6.
---------------------------------------------------------------------------

    \185\ DHS, Instructions for Notice of Entry of Appearance as 
Attorney or Accredited Representative 1, 4 (Sep. 17, 2018), https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf.
---------------------------------------------------------------------------

    With regard to the comment about noncitizens in CBP custody having 
difficulties obtaining items such as pen and paper, or having access to 
counsel or to private phone booths, the Departments disagree with the 
commenters' characterizations. Noncitizens who are going through the 
credible fear process in CBP custody are provided with pen and paper, 
and they are afforded a period of time to consult with an individual of 
their choosing, which occurs in a private phone booth, as discussed in 
this section.\186\ These phones and phone booths are also used to 
conduct the credible fear interview.
---------------------------------------------------------------------------

    \186\ To the extent that commenters have concerns regarding 
compliance with this policy, DHS notes that such complaints about 
noncompliance can be addressed under the process described in 
Section III.C.2.c of this preamble.
---------------------------------------------------------------------------

iii. Impacts on Specific Vulnerable Populations, Discrimination 
Concerns
    Comment: Many commenters expressed concern that the rule would 
disproportionately harm vulnerable groups, including Black individuals, 
Indigenous individuals, and People of Color (``BIPOC''), those who are 
HIV positive, and people with disabilities. For example, a commenter 
remarked that the Departments did not analyze the effect the rule has 
on particularly vulnerable populations such as Black migrants. A 
commenter voiced concern about the impact the rule could have on 
predominantly BIPOC communities, remarking that the rule perpetuates 
harmful political rhetoric about these communities and the border that 
can lead to long-term detrimental effects and violence. While sharing 
specific examples of the way the IFR has impacted members of BIPOC 
communities, another commenter raised

[[Page 81204]]

concern for the discrimination these populations may face under the 
rule while seeking asylum and waiting for an appointment. A commenter 
stated that the rule would prevent fair and equal access to lifesaving 
protections and lead to the unnecessary deaths of individuals who are 
denied entry and returned to dangerous and unsafe countries. Therefore, 
the commenter urged, the rule should be rescinded in its entirety.
    Response: The Departments are committed to the equal treatment of 
all persons, and this rule does not distinguish between individuals 
based on race, nationality, ethnicity, or any other protected 
characteristic. The Departments also acknowledge that certain 
populations, including members of BIPOC communities, may have unique 
vulnerabilities or face unique issues in their country of origin or 
countries of transit, and agree that the United States has certain 
legal obligations to protect noncitizens present in the United States 
who fear harm in their home countries. But as explained more fully in 
Section III.A.1 of this preamble, the rule ensures that noncitizens may 
continue to seek asylum or other protection in the United States. The 
Departments note that the rule and its exception apply equally to 
noncitizens who enter during the times when emergency border 
circumstances are present, regardless of nationality, race, ethnicity, 
or other demographics of concern identified by the commenters. Further, 
as explained in this section, adjudicators receive training to help 
them identify members of vulnerable communities and account for the 
harms such individuals may face. And, to the extent that members of 
certain communities may face greater risks because of their membership 
in those communities, the Departments believe that the ``exceptionally 
compelling circumstances'' exception will afford a means to seek asylum 
or protection when those risks manifest as specific threats to the 
individuals in question.
    Comment: Several commenters expressed concern regarding the 
separation of families and the treatment of trafficking victims. A 
commenter generally supported allowing united families to escape 
persecution and cross the border together. Other commenters raised 
concern that the IFR and associated policy changes routinely separate 
families and often complicate or prevent family reunification. Another 
commenter wrote that the rule is likely to impose negative impacts on 
family wellbeing and result in family separations, as the commenter 
reasoned the changes in policy would incentivize an increase in the 
arrival of UCs because families are unable to seek or receive 
protection by crossing the border together. One commenter also 
expressed concern that the rule puts children at risk to migrate alone. 
Another commenter elaborated that family unity and reunification is 
fundamental to our Nation's immigration policies and the foundational 
principles of a Catholic social teaching. The commenter voiced concern 
that the effects of this rule would be similar to the effects of the 
Migrant Protection Protocols (``MPP'') and the Title 42 public health 
Order, which, the commenter stated, ``led families to `self-separate' 
at the border'' because either the adults decided the conditions in 
Mexico were too dangerous for the children to continue to wait with 
them or the adults were injured or had disappeared. The commenter urged 
the Departments to rescind the rule entirely, arguing that the policy 
changes undermine families' ability to seek humanitarian protection.
    Additionally, a commenter stated that the rule's exemption for 
survivors of trafficking is inadequate. The commenter wrote that 
survivors could be returned to trafficking situations when the new 
heightened credible fear standard fails to trigger safeguards codified 
in the TVPA.
    Response: The Departments have designed the rule with a goal of 
keeping families together. As described in Section III.C.1.e of this 
preamble, the Departments have adopted family unity provisions that 
apply during both AMIs and section 240 removal proceedings. See 8 CFR 
208.35(c), 1208.35(c). Additionally, if one member of a family unit 
traveling together is excepted from the limitation on asylum 
eligibility based on exceptionally compelling circumstances, then the 
entire family unit is excepted. See 8 CFR 208.35(a)(2)(i), 
1208.35(a)(2)(i). Accordingly, commenters are incorrect that the rule 
disallows families from obtaining relief or protection together.
    Additionally, the Departments believe that the safeguards in place 
for victims of human trafficking are sufficient. A noncitizen who is a 
victim of a severe form of trafficking in persons as defined in 8 CFR 
214.201 is excepted from the suspension and limitation on entry under 
section 3(b) of the Proclamation and is also separately excepted from 
the provisions of this rule. See 8 CFR 208.35(a)(1), 1208.35(a)(1) 
(excepting from the limitation on asylum eligibility noncitizens 
described in section 3(b) of the Proclamation); 8 CFR 235.15(a) 
(excepting from the manifestation provision noncitizens described in 
section 3(b) of the Proclamation). Noncitizens who meet that definition 
are also excepted from the limitation on asylum eligibility as having 
established exceptionally compelling circumstances. See 8 CFR 
208.35(a)(2)(i)(C), 1208.35(a)(2)(i)(C). In practice, these two 
provisions provide two significant safeguards and work alongside 
section 3(b) of the Proclamation and 8 CFR 235.15(a) to ensure that 
noncitizens are not subject to the suspension and limitation on entry 
or any of the rule's provisions if they meet the definition of a victim 
of a severe form of trafficking.
    Comment: A commenter raised concern for non-Mexicans under the rule 
being removed and left stranded in Mexico without migration documents 
or resources. The commenter explained that undocumented individuals 
removed to Mexico are vulnerable to arrest, detention, and potential 
deportation by Mexican immigration authorities. The commenter stated 
that this process has been a dangerous and unsafe practice that results 
in human rights violations and that government officials in Mexico have 
confirmed this practice will continue and potentially expand under the 
rule.
    Response: This rule does not change the statutory and regulatory 
process for designating the country to which a noncitizen may be 
removed. To the extent that a greater number of noncitizens may be 
removed through the operation of this rule--some of whom may be removed 
to Mexico rather than their home countries, consistent with country of 
removal designation authorities--the Departments note that noncitizens 
may assert claims of fear of harm in Mexico and that the rule 
explicitly provides that noncitizens are screened for fear of harm in 
their ``designated country or countries of removal.'' 8 CFR 
208.35(b)(2)(ii); see also 8 CFR 208.35(b)(2)(iii).
    The Departments acknowledge that noncitizens other than Mexicans 
who are removed to Mexico may be subject to Mexican immigration law. 
However, the Departments disagree that being returned to Mexico is 
necessarily unsafe, whether because of actions by the Government of 
Mexico or otherwise. Over the last several years, the Government of 
Mexico has made exceptional strides to improve conditions for asylum 
seekers, migrants, and refugees within its borders. For instance, 
Mexico's Federal Public Defender's office provides legal counseling and 
support to asylum seekers and migrants who file claims with Mexico's 
Commission for Refugee Assistance, and the office has expanded its 
specialized staff and increased its visits to migration stations. 88 FR 
at

[[Page 81205]]

31411. Further, not only is Mexico a party to the 1951 Convention \187\ 
relating to the Status of Refugees and its 1967 Refugee Protocol,\188\ 
but also Mexico's Constitution includes a right to seek and receive 
asylum from political persecution. See Mex. Const. art. 11. In fact, 
the available grounds to qualify for asylum are broader in Mexico than 
in the United States. See 88 FR at 31411 (explaining that Mexico has 
joined the Cartagena Declaration on Refugees, which expands the 
definition of ``refugee,'' ``thus providing some who may apply for 
protection, such as asylum, with more grounds on which to make their 
claim than they would have in the United States''). And applicants who 
do not qualify for asylum in Mexico are automatically considered for 
complementary protection if they possess a fear of harm in their 
country of origin, or if there is reason to believe that they will be 
subjected to torture or to cruel, inhuman, or degrading treatment, but 
do not meet the ``refugee'' definition; those granted complimentary 
protection are able to regularize their status.\189\
---------------------------------------------------------------------------

    \187\ See United Nations Treaty Collection, Chapter V: Refugees 
and Stateless Persons: Convention Relating to the Status of 
Refugees, https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-2.en.pdf (last visited Sept. 24, 2024).
    \188\ See United Nations Treaty Collection, Chapter V: Refugees 
and Stateless Persons: Protocol Relating to the Status of Refugees, 
https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-5.en.pdf (last visited Sept. 24, 2024).
    \189\ 88 FR at 11721 & n.144 (citing Government of Mexico, Ley 
sobre Refugiados, Protecci[oacute]n Complementaria y Asilo 
Pol[iacute]tico (Jan. 27, 2011), https://www.gob.mx/cms/uploads/attachment/file/211049/08_Ley_sobre_Refugiados__Protecci_n_Complementaria_y_Asilo_Pol_tico.pdf).
---------------------------------------------------------------------------

    Comment: Multiple commenters expressed concerns for the health and 
safety of women and noncitizens from Lesbian, Gay, Bisexual, 
Transgender, Queer/Questioning, and Intersex (``LGBTQI+'') communities. 
For example, one commenter voiced concern for the asserted lack of 
equal opportunity and the Departments' asserted lack of analysis of the 
effect of the rule on particularly vulnerable populations, such as 
LGBTQI+ migrants. Another commenter wrote that the rule erroneously 
separates the imminent threat the noncitizen suffer at the border from 
their future threat of persecution upon return, especially for those 
noncitizens fleeing from Mexico who identify as LGBTQI+. The commenter 
wrote that violence towards members of the LGBTQI+ community can happen 
randomly and unexpectedly, and hence that noncitizens would be unable 
to predict or articulate the violent risks they may face when seeking 
refuge in the United States. In addition, the commenter voiced concern 
for the disproportionate impacts of the rule on LGBTQI+ community 
members from Mexico and the ``Northen Triangle'' countries of 
Guatemala, Honduras, and El Salvador because, the commenter asserted, 
these countries have long and documented histories of severe violence 
against the LGBTQI+ population. Citing research, the commenter wrote 
that 4,385 claims of fear were related to LGBTQI+ status and 98.4 
percent of the interviews resulted in positive determinations for fear 
of persecution. In conclusion, the commenter urged that it is 
imperative for the United States to remain a haven for all people 
fleeing danger and violence, especially LGBTQI+ migrants and therefore 
requested that the IFR be immediately rescinded. This commenter further 
expressed concern that the IFR was contrary to President Biden's 
February 2021 memorandum on advancing the human rights of LBGTQI+ 
persons around the world, which included an explicit instruction to the 
Departments of State and Homeland Security to ``enhance their ongoing 
efforts to ensure that LGBTQI+ refugees and asylum seekers have equal 
access to protection and assistance, particularly in countries of first 
asylum.''
    Citing experts on gender-based violence in Mexico, a commenter 
stated that violence against asylum seekers who are women or members of 
LGBTQI+ communities is endemic in many parts of the country. While 
sharing specific examples involving both LGBTQI+ community members and 
women, a commenter raised concern about the violence these populations 
may face under the rule while seeking asylum. For example, the 
commenter shared that migrant girls, adolescents, and women have either 
witnessed or been victims of exploitation, sexual violence, kidnapping, 
and human trafficking both in transit and while waiting in Mexico. The 
commenter also remarked that the rule adds new barriers that further 
endanger LGBTQI+ individuals, such as lack of access to safe housing, 
employment, and medical care.
    Another commenter asserted that the rule arbitrarily and unlawfully 
prevents women, children, families, and LGBTQI+ community members from 
seeking safety in the form of asylum based on border encounter numbers 
that are unrelated to the individuals' need for protection. The 
commenter wrote that the result would be to severely harm the health 
and safety of those who would otherwise merit protection.
    Response: The Departments agree that the United States has certain 
legal obligations to protect those who fear harm in their home 
countries and recognize the importance of offering noncitizens the 
opportunity to seek protection from removal from the United States 
based on a likelihood of future persecution or torture. 89 FR at 48759. 
But as explained more fully in Section III.A.1 of this preamble and in 
the IFR, this rule complies with all such obligations and does not deny 
anyone the ability to apply for asylum or other protection in the 
United States. See id. at 48716-17, 48735-36.
    The rule does not prevent noncitizens with valid claims from 
seeking asylum or other protection. To the extent that, as commenters 
asserted, women and members of the LGBTQI+ community do in fact face a 
greater risk of violence, those individuals would necessarily have a 
greater ability to establish that exceptionally compelling 
circumstances exist that would except them from the rule's limitation 
on asylum eligibility. To be clear, generalized risks of violence would 
not be sufficient to establish such circumstances, but insofar as such 
generalized risks manifest as specific threats to women and members of 
the LGBTQI+ community, the rule affords an avenue for those individuals 
to remain eligible for asylum. 8 CFR 208.35(a)(2), 1208.35(a)(2). And 
the rule does not change the ultimate eligibility requirements for 
statutory withholding of removal or CAT protection. A noncitizen who 
seeks to apply for asylum can also schedule arrival at a POE under a 
process approved by the Secretary, including by using the CBP One app, 
and avoid application of the rule. 8 CFR 208.35(a)(1), 1208.35(a)(1); 
Proclamation sec. 3(b)(v); 89 FR at 48737.
    This rule does not preclude noncitizens who cross the southern 
border from seeking asylum or protection. Indeed, all noncitizens 
processed for expedited removal who manifest a fear of return, express 
an intention to apply for asylum or protection, or express a fear of 
persecution or torture or a fear of return to their country or the 
country of removal are referred for a credible fear interview, as 
appropriate. See INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii); 8 
CFR 235.15(b)(4). AOs receive mandatory, specific training on screening 
and adjudicating gender-related claims.\190\ This training includes 
information about violence against women (including domestic

[[Page 81206]]

violence), and guidance on interview considerations specific to gender-
based claims.\191\ AOs also receive training on screening and 
adjudicating claims relating to LGBTQI+ noncitizens.\192\ This training 
includes information about types of harm that may be directed at 
LGBTQI+ individuals, as well as guidance on interview considerations 
specific to LGBTQI+ claims.\193\ AOs are trained to recognize the 
sensitive nature of these claims and to pursue appropriate lines of 
inquiry.\194\ AOs also receive training on country of origin 
information specific to LGBTQI+ issues, while recognizing that LGBTQI+ 
country-of-origin information may sometimes be difficult to find.\195\
---------------------------------------------------------------------------

    \190\ USCIS, RAIO Directorate--Officer Training: Gender-Related 
Claims (Apr. 24, 2024).
    \191\ E.g., id. at 15-20, 42.
    \192\ USCIS, RAIO Directorate--Officer Training: Guidance for 
Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex 
(LGBTI) Refugee and Asylum Claims (Apr. 24, 2024).
    \193\ E.g., id. at 18-19, 27-34.
    \194\ Id. at 28-30, 37-38, 49.
    \195\ Id. at 43-44, 50.
---------------------------------------------------------------------------

    Additionally, the Departments recognize the sensitive nature of 
credible fear interviews, especially for vulnerable populations, 
including LGBTQI+ noncitizens. For example, for those going through the 
credible fear process in CBP custody, CBP has taken steps to protect 
the privacy of noncitizens during their interviews. These interviews 
occur in confidential and private phone booths intended for use both 
for consultation and for the credible fear interview. Additionally, ICE 
provides similar reasonable access to legal counsel for those who are 
detained in ICE custody during the credible fear process.\196\
---------------------------------------------------------------------------

    \196\ ICE, Access to Due Process: Fiscal Year 2023 Report to 
Congress 2-3 (Feb. 20.2024), https://www.dhs.gov/sites/default/files/2024-04/2024_0220_ice_access_to_due_process.pdf.
---------------------------------------------------------------------------

    Comment: Commenters stated that many immigrants today are Punjabi-
speaking Sikhs seeking protection due to the worsening human rights 
conditions under India's current administration. The commenters stated 
that these immigrants may face hardships such as language barriers and 
difficulty accessing employment opportunities and resources upon 
arrival. Commenters stated that the rule would exacerbate language-
barrier issues. Specifically, a commenter stated that the requirement 
to express a fear of persecution explicitly and proactively in order to 
be referred for a credible fear screening, and the limited time to seek 
legal advice from a language-accessible attorney, would prevent many 
Sikh noncitizens from understanding their legal rights or the need to 
express their credible fear. The commenters wrote that it is critical 
for the Sikh community and many other populations fleeing persecution 
to have the opportunity to seek asylum and requested clarification on 
how the Government intends to address the concerns of religious 
minorities who would be impacted by the rule.
    Response: The Departments disagree that the rule will exacerbate 
language-barrier issues. For those who are going through the credible 
fear process in CBP custody, CBP provides language assistance services 
for those who do not speak English, consistent with CBP's Language 
Access Plan.\197\ CBP immigration officers have extensive experience 
and training in identifying whether an individual requires a translator 
or interpreter or is unable to understand a particular language. See 89 
FR at 48741. In addition, CBP facilities have ``I Speak'' signs, which 
are signs that assist literate individuals to identify a preferred 
language from one of over 60 possible languages, including 
Punjabi.\198\ With respect to the signs and videos in CBP facilities 
that provide general information about the ability to express a fear, 
individuals who are unable to read those signs or communicate 
effectively in one of the languages in which the sign and video are 
presented are read the contents of the sign and video in a language 
they understand. See 89 FR at 48741.
---------------------------------------------------------------------------

    \197\ See CBP, Language Access Plan (Nov. 18, 2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; CBP, Supplementary Language Access Plan (Feb. 7, 
2020), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
    \198\ See CBP, Language Access Plan 7 (Nov. 18, 2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; DHS, I Speak . . . Language Identification Guide, 
https://www.dhs.gov/sites/default/files/publications/crcl-i-speak-poster-2021.pdf (last visited Sept. 24, 2024); DHS, I Speak . . . 
Indigenous Language Identification Poster, https://www.dhs.gov/sites/default/files/publications/Habla%20Poster_12-9-16.pdf (last 
visited Sept. 24, 2024); see also DHS, DHS Language Access Resources 
(last updated July 17, 2023), https://www.dhs.gov/publication/dhs-language-access-materials.
---------------------------------------------------------------------------

    The Departments agree that the United States has certain legal 
obligations to protect those who fear harm in their home countries, 
including those who are fleeing for religious reasons, and recognize 
the importance of offering noncitizens the opportunity to seek 
protection from removal. But as explained more fully in Section III.A.1 
of the preamble, this rule does not deny anyone the ability to seek 
asylum or other protection in the United States and meets all such 
legal obligations. See also id. at 48716-17, 48735-36. Further, 
although commenters asserted generally that religious minorities would 
be harmed by the IFR and DHS's policy changes, the commenters provided 
no specific reason to believe that the IFR and policy changes would 
disproportionately impact any particular religious groups other than 
the Punjabi-speaking Sikhs discussed above.
    Comment: Commenters discussed the rule's impact on noncitizens with 
fewer financial resources and means. For example, a commenter wrote 
that the rule would further disadvantage those noncitizens with fewer 
financial resources because these noncitizens are less likely to pursue 
alternative routes to safety. A few commenters expressed concern for 
noncitizens with physical and mental health disabilities. And a 
commenter remarked that individuals with cognitive issues, 
disabilities, and language barriers are less likely to effectively 
articulate fears to border officials.
    Response: The Departments agree that the United States has certain 
legal obligations to protect from removal those who fear specific types 
of harm upon removal and recognize the importance of offering 
noncitizens the opportunity to seek protection from removal, including 
noncitizens with fewer financial resources, noncitizens with physical 
and mental health disabilities, and noncitizens with cognitive issues, 
disabilities, and language barriers. But as explained more fully in 
Section III.A.1 of this preamble, this rule does not deny anyone the 
ability to seek asylum or other protection in the United States. See 
also id. at 48716-17, 48735-36. Further, there is no fee to download or 
use the CBP One app to schedule an appointment and thereby avoid the 
IFR's limitation on asylum eligibility,\199\ and DHS has designed the 
CBP One app to be accessible to people with disabilities. Additionally, 
the Departments note that, depending on individual circumstances, AOs 
and IJs may find that certain especially vulnerable individuals meet 
the ``exceptionally compelling circumstances'' standard, or, as 
discussed previously, AOs may exercise their discretion to issue an NTA 
to place such noncitizens into section 240 removal proceedings as 
appropriate, where additional procedural safeguards are available to 
noncitizens. For

[[Page 81207]]

example, during section 240 removal proceedings, IJs may more fully 
consider whether a noncitizen demonstrates indicia of mental 
incompetency and, if so, what procedural safeguards are appropriate. 
See Matter of M-A-M-, 25 I&N Dec. at 481-83. Additionally, CBP officers 
may determine that such noncitizens are excepted from the suspension 
and limitation on entry (and thus that the provisions of this rule do 
not apply) under Section 3(b)(vi) or (vii) of the Proclamation.
---------------------------------------------------------------------------

    \199\ See CBP, CBP One<SUP>TM</SUP> Mobile Application (last 
modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone (explaining in response to frequently asked 
questions that ``the CBP One<SUP>TM</SUP> mobile application is FREE 
and available to everyone who has access to a mobile device'').
---------------------------------------------------------------------------

iv. Impacts on Criminal Enforcement
    Comment: Commenters stated that they are concerned that noncitizens 
would face criminal charges if they attempted to return to the United 
States following removal under the rule. One commenter stated that an 
increased number of expedited removal orders would inevitably lead more 
noncitizens to attempt to reenter the United States after their 
removal, potentially subjecting them to felony charges and two years of 
imprisonment, and that noncitizens should not be deemed criminals and 
incarcerated for seeking asylum in the United States. Another commenter 
stated that charging noncitizens criminally would decrease their access 
to humanitarian relief and increase the risk that criminal 
organizations would target those noncitizens.
    Response: The Departments are committed to the fair, evenhanded 
enforcement of the law as Congress has enacted it. The Departments 
agree that, in appropriate cases, noncitizens who have been removed 
pursuant to an expedited removal order may be subject to criminal 
charges if they attempt to unlawfully reenter the United States. See 
INA 276(a), 8 U.S.C. 1326(a). Because the rule will allow the 
Departments to predictably and swiftly impose consequences on 
noncitizens who enter the United States without a legal basis to 
remain, the Departments believe noncitizens will be disincentivized 
from attempting to enter without a legal basis to remain or to reenter 
after being removed. Nevertheless, for the relatively few who choose 
nevertheless to reenter unlawfully, congressionally enacted criminal 
penalties remain an important tool to enforce the law.\200\
---------------------------------------------------------------------------

    \200\ Even so, although convictions for certain ``particularly 
serious crimes'' may render noncitizens ineligible for asylum or 
withholding of removal, unlawful reentry alone is not necessarily a 
particularly serious crime. See INA 208(b)(2)(A)(ii), 8 U.S.C. 
1158(b)(2)(A)(ii); INA 241(b)(3)(B)(ii), 8 U.S.C. 1231(b)(3)(B)(ii); 
Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007) (``Where, as in 
the instant case, a conviction is not for an aggravated felony for 
which the alien has been sentenced to an aggregate term of 
imprisonment of at least 5 years, we examine the nature of the 
conviction, the type of sentence imposed, and the circumstances and 
underlying facts of the conviction.'').
---------------------------------------------------------------------------

v. Negative Impacts on Other Affected Entities
    Comment: Commenters stated that the rule would impose more burdens 
on nonprofit organizations, legal-service providers, and communities 
near the border. One commenter believed that the increase in negative 
fear determinations would cause legal-service providers to dedicate 
significant resources to preparing clients for and representing them in 
hearings before IJs and potential requests for reconsideration to 
USCIS. The commenter also alleged that the Departments have failed to 
consider reliance interests such as those of legal-service providers 
that prepare informational material, employ internal protocols, and 
deliver client services predicated on access to asylum and on access to 
clients in custody; the commenter stated that their organization would 
need to understand the changes effected by the rule, train staff and 
pro bono volunteers on those changes, and rewrite published legal 
information in multiple languages. Another commenter stated that its 
presentations would become longer and more complex to explain the 
effect of the rule's limitation on asylum eligibility, the 
exceptionally compelling circumstances needed to overcome it, and the 
new, heightened ``reasonable probability'' standard in credible fear 
interviews. The commenter asserted that the rule would also affect its 
staff's ability to provide services to callers of its hotline and its 
clients' ability to understand the legal issues involved.
    Response: The Departments decline to modify the rule in response to 
the commenters' concerns. The concerns raised are not unique to 
immigration. Any change to any law or policy regulating the public 
requires providers who practice in the relevant area to adapt--they 
must learn the new law and advise clients accordingly. To facilitate 
the transition to the new provisions, since the Proclamation and IFR 
came into force, DHS personnel have regularly made themselves available 
to answer questions about these policies and the Departments' 
implementation activities, made information about these policies public 
on the Departments' websites,\201\ and proactively engaged a variety of 
stakeholder groups to promote understanding of the rule. The 
Departments believe that any purported costs that nonprofit 
organizations and legal-service providers assert they will bear in 
adapting to the changes effected by the rule are outweighed by the 
interest in reducing the current levels of encounters and allowing the 
Departments to invest more of their limited resources into predictably 
and swiftly delivering consequences to noncitizens who cross the border 
without a lawful basis to remain in the United States. See 89 FR at 
48714. Although returning to the status quo before the IFR may 
eliminate some of the asserted burdens to which the commenters object, 
that status quo would perpetuate the vicious cycle in which the border 
security and immigration systems cannot deliver timely decisions and 
consequences to those encountered at the southern border who lack a 
lawful basis to remain in the United States, ultimately incentivizing 
more noncitizens to attempt to cross the border. See id. Conversely, a 
decrease in encounters at the southern border could be expected to 
allow organizations like the commenters to allocate more resources to 
each of their individual clients, allowing them to serve their clients 
more effectively.
---------------------------------------------------------------------------

    \201\ See, e.g., CBP, CBP One<SUP>TM</SUP> Mobile Application 
(last modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
---------------------------------------------------------------------------

    The Departments also disagree that the rule will burden communities 
near the border. To the contrary, the rule will free resources to allow 
DHS to more effectively patrol the border and interdict smugglers and 
TCOs.\202\ Moreover, the rule enables the delivery of predictable, 
swift consequences to noncitizens who cross the border without a legal 
basis to remain in the United States. That will disincentivize such 
noncitizens from attempting to cross the border, depriving smugglers 
and TCOs of opportunities to perpetuate their illegal operations. See 
89 FR at 48730. In these ways, this rule is expected to reduce smuggler 
and TCO activity in border communities, ultimately reducing the harms 
that those activities bring to those communities. Additionally, the 
same incentives are expected to ultimately lower the number of 
noncitizens present in border communities, further reducing the burdens 
on those communities.
---------------------------------------------------------------------------

    \202\ See 89 FR at 48729-30.

---------------------------------------------------------------------------

[[Page 81208]]

b. Negative or Minimal Impacts on Immigration System and Government 
Operations
i. Undermines the Administration's Promises and Goals
    Comment: Some commenters urged the Administration to keep its 
promises, stating that ``[w]e are all immigrant[s].'' Specifically, one 
commenter stated that the Administration ``has not upheld its promise 
to safeguard the legal right to asylum and protect individuals from 
persecution, violations of due process, and family separation.'' Other 
commenters asserted that the Administration issued the Proclamation for 
political reasons, including using it as a political tool and for 
reelection purposes, while another commenter stated that the rule will 
not be effective in achieving the Administration's perceived political 
messaging or in ``sway[ing]'' right-wing individuals. And a third 
commenter argued that the Democratic Party supported discriminatory 
ideas like those found in the rule despite claiming to disagree with 
such policies.
    Along the same lines, commenters stated that the rule is 
inconsistent with the Administration's goal of creating a just 
immigration system and goes against the Administration's promise to not 
deny asylum for noncitizens fleeing persecution and violence. One 
commenter claimed that the Administration had ``previously pledged to 
restore the United States' `moral standing in the world and our 
historic role as a haven for refugees and asylum seekers, and those 
fleeing violence and persecution,' '' but that the rule ``is misaligned 
with the values promised by this administration, including promises to 
end Trump-era restrictions on asylum seekers.'' Other commenters 
asserted that the Departments sought to curtail the rights of 
noncitizens arriving at the border by shutting them out of the asylum 
process based ``solely'' on how they arrived in the United States, even 
though the Administration had previously called on agencies to review 
expedited removal procedures to make them fairer. Another commenter 
expressed concern regarding what they alleged was a shift in the 
Administration's ``rhetoric'' and support for ``fear-based 
restrictions'' on asylum, instead of proposing measures to overhaul and 
ameliorate the asylum process, which they said was ``sadly a very 
different stance'' from the Administration's position a few years ago. 
A few commenters urged the Administration to expand the asylum system 
and to not close the southern border.
    Response: The Departments agree that the United States has a long 
tradition of accepting and welcoming refugees and note that in the past 
few years, the United States Government has taken steps to 
significantly expand refugee admissions worldwide,\203\ including for 
refugees from Latin America and the Caribbean. See 89 FR at 48712; 88 
FR at 31333, 31341. However, without a policy in place to ensure 
lawful, safe, and orderly processing of noncitizens entering the United 
States during emergency border circumstances, the number of noncitizens 
in such circumstances would exceed DHS's already limited resources and 
facilities. See 89 FR at 48711-15. As explained in the IFR and under 
this rule, noncitizens seeking protection in the United States will 
still be able to do so, either before USCIS or in removal proceedings 
before EOIR, subject to the rule's provisions.
---------------------------------------------------------------------------

    \203\ U.S. Dep't of State, Report to Congress on Proposed 
Refugee Admissions for Fiscal Year 2024, at 6 (2023), https://www.state.gov/wp-content/uploads/2023/11/FY-2024-USRAP-Report-to-Congress_FINAL-Accessible-11.02.2023.pdf.
---------------------------------------------------------------------------

    The Departments have determined that the changes effected by the 
IFR and the rule during emergency border circumstances will allow for 
better management of the limited resources Congress has provided to the 
Departments. Specifically, noncitizens intending to seek asylum are 
encouraged to do so using lawful pathways and processes, which 
facilitate the orderly processing of claims. In addition, the changes 
in the IFR and this rule permit the Departments to swiftly screen 
noncitizens not likely to establish eligibility for relief or 
protection, as well as to efficiently identify and process valid 
claims. The combined effect of the changes has reduced the percentage 
of noncitizens placed in section 240 removal proceedings,\204\ where 
cases may take years to resolve.\205\ In addition to reducing the 
impact on EOIR operations, reducing the number of noncitizens in 
removal proceedings reduces ancillary benefit requests to USCIS, see 8 
CFR 208.7 (employment authorization for pending asylum applicants), and 
alleviates the burden on ICE of removing non-detained noncitizens who 
receive final orders of removal at the conclusion of section 240 
removal proceedings but who do not comply with their orders, see, e.g., 
8 CFR 241.4(f)(7) (in considering whether to recommend further 
detention or release of a noncitizen, an adjudicator must consider 
``[t]he likelihood that the alien is a significant flight risk or may 
abscond to avoid removal'').
---------------------------------------------------------------------------

    \204\ OHSS analysis of June 2024 Enforcement Lifecycle data and 
data downloaded from UIP on September 3, 2024 (Summary Statistics 
tab).
    \205\ See OHSS analysis of EOIR data as of July 2024 (Mean EOIR 
Filed Dates tab).
---------------------------------------------------------------------------

    The Departments reiterate that a noncitizen may avoid application 
of the limitation on asylum eligibility if the noncitizen establishes 
by a preponderance of the evidence that exceptionally compelling 
circumstances exist. See 8 CFR 208.35(a)(2), 1208.35(a)(2). The 
Departments recognize that some noncitizens who would otherwise be 
granted asylum may not be eligible due to this rule. However, because 
such noncitizens remain able to seek statutory withholding of removal 
and CAT protection, the Departments believe that this rule strikes the 
appropriate balance between the need to protect those who wish to seek 
protection in the United States and the need to use resources 
effectively during emergency border circumstances.
    Moreover, the Departments have determined that responding to 
emergency border circumstances is necessary to ensure the Departments' 
continued ability to safely, humanely, and effectively enforce and 
administer U.S. immigration laws, as well as to reduce the role of 
exploitative and dangerous smuggling and human trafficking networks. 
See 89 FR at 48714, 48723, 48726, 48767. One cause of recent surges in 
irregular migration is smugglers' and noncitizens' growing 
understanding that DHS's capacity to impose consequences at the border 
is limited by the lack of resources and tools that Congress has made 
available. Indeed, this rule follows congressional inaction limiting 
DHS's capacity to impose such consequences despite the Departments' 
repeated attempts to obtain the legislative framework and resources 
required to address unprecedented levels of irregular migration. In 
early February 2024, a bipartisan group of Senators proposed reforms of 
the country's asylum laws that would have provided new authorities to 
significantly streamline and speed up immigration enforcement 
proceedings and immigration adjudications for individuals encountered 
at the border, including those who are seeking protection, while 
preserving principles of fairness and humane treatment.\206\ 89 FR at 
48729.

[[Page 81209]]

Critically, the proposal included more than $20 billion in additional 
resources for DHS, DOJ, and other departments to implement those new 
authorities.\207\ Id. However, Congress failed to move forward with 
this bipartisan legislative proposal.\208\ Id. It also failed to pass 
the emergency supplemental funding requests that the Administration 
submitted. Id. Although Congress did ultimately enact an FY 2024 
appropriations bill for DHS, the funding falls significantly short of 
what DHS requires to deliver timely consequences and avoid large-scale 
releases pending section 240 removal proceedings. Id.
---------------------------------------------------------------------------

    \206\ The White House, Fact Sheet: Biden-Harris Administration 
Calls on Congress to Immediately Pass the Bipartisan National 
Security Agreement (Feb. 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/04/fact-sheet-biden-harris-administration-calls-on-congress-to-immediately-pass-the-bipartisan-national-security-agreement/.
    \207\ Deirdre Walsh & Claudia Grisales, Negotiators Release $118 
Billion Border Bill as GOP Leaders Call It Dead in the House, NPR 
(Feb. 4, 2024), https://www.npr.org/2024/02/04/1226427234/senate-border-deal-reached.
    \208\ Stephen Groves, Rebecca Santana & Mary Clane Jalonick, 
Border Bill Fails Senate Test Vote as Democrats Seek to Underscore 
Republican Resistance, AP News (May 23, 2024), https://apnews.com/article/border-immigration-senate-vote-924f48912eecf1dc544dc648d757c3fe.
---------------------------------------------------------------------------

    In light of congressional inaction, this rule is designed to 
address historic levels of migration and efficiently process migrants 
arriving at the southern border during emergency border circumstances 
with the resources and tools Congress did make available. As discussed 
in Section II.A.2 of this preamble, the Departments assess that this 
rule significantly increases their ability to deliver timely decisions 
and consequences. Accordingly, the Departments reject commenters' claim 
that the Departments' basis for promulgating the rule is political. 
Rather, the Departments believe that the rule will continue to reduce 
irregular migration by allowing the Departments to better manage their 
limited resources while delivering consequences more swiftly through 
expedited removal for those without a legal basis to remain in the 
United States.
ii. Similarity to Actions of Past Administration
    Comment: Some commenters stated that the rule was akin to the 
asylum-related rulemaking and policies of the prior Administration, 
which, the commenters said, denied noncitizens their ``legal right to 
request asylum in the United States'' and were ``struck down'' by 
Federal courts. Specifically, one commenter stated that the prior 
Administration ``provided [a] similar rationale'' for its policies: 
``to alleviate the mass illegal immigration crises along the Southern 
border by discouraging the submission of fraudulent or otherwise 
meritless asylum claims.'' And another commenter asserted that the rule 
was similar to the prior Administration's interim final rule entitled 
Aliens Subject to a Bar on Entry Under Certain Presidential 
Proclamations; Procedures for Protection Claims, 83 FR 55934 (Nov. 9, 
2018) (``Proclamation Bar IFR''), in that it is ``again barring people 
crossing between ports from accessing asylum protections for no 
legitimate reason beyond false optics of border `control' that 
unlawfully penalize and seek to deter those who need access to 
protection.'' A number of commenters criticized the rule as an 
insufficient break from prior immigration policies that the commenters 
described as ``inhumane,'' ``cruel[],'' and ``punishing.'' Some 
commenters claimed that the Administration was ``walking back promises 
to protect fair asylum processes'' since revoking Title 42. And another 
commenter stated that the Administration's echoing of ``reactionary 
measures'' of the prior Administration ``during a looming election 
season'' was a ``cynical approach'' that would foster ``division and 
xenophobia,'' fail to address the root causes of immigration issues, 
and ``alienat[e] an electorate that values fairness and justice for 
immigrants.''
    Response: The Departments disagree that the rule is 
indistinguishable from or too similar to the asylum-related rulemakings 
and policies commenters cited. The Proclamation Bar IFR, for instance, 
imposed a categorical eligibility bar for noncitizens crossing the 
southern border outside a POE. See 83 FR at 55935; cf. East Bay III, 
993 F.3d at 669-70. By contrast, this rule does not operate as a 
categorical bar on asylum eligibility based on manner of entry. 
Instead, the rule provides a limitation on asylum eligibility for 
certain noncitizens who (1) enter the United States across the southern 
border during emergency border circumstances; (2) are not described in 
section 3(b) of the Proclamation; and (3) do not establish 
exceptionally compelling circumstances. See 8 CFR 208.13(g), 208.35(a), 
1208.13(g), 1208.35(a). Importantly, then, noncitizens may avoid 
application of the limitation on asylum eligibility if they establish 
by a preponderance of the evidence that exceptionally compelling 
circumstances exist. See 8 CFR 208.35(a)(2), 1208.35(a)(2). Such 
circumstances necessarily exist where the noncitizen demonstrates that, 
at the time of entry, the noncitizen or a member of the noncitizen's 
family as described in 8 CFR 208.30(c) with whom the noncitizen was 
traveling faced an acute medical emergency; faced an imminent and 
extreme threat to their life or safety; or was a ``victim of a severe 
form of trafficking in persons'' as defined in 8 CFR 214.201. 8 CFR 
208.35(a)(2)(i), 1208.35(a)(2)(i). Noncitizens may also be excepted 
from the limitation if, during section 240 removal proceedings or the 
asylum merits process, they meet the family unity exception. See 8 CFR 
208.35(c), 1208.35(c). As discussed in further detail in Section 
III.C.1.e of this preamble, under the family unity provision, the 
following noncitizens may be treated as having established 
exceptionally compelling circumstances sufficient to avoid application 
of the limitation on asylum eligibility: those who (1) are found 
eligible for statutory withholding of removal or CAT withholding; (2) 
would be eligible for asylum but for the limitation on asylum 
eligibility set forth in the rule, the condition set forth in the 
Circumvention of Lawful Pathways rule, or both; and (3) have a 
qualifying spouse or child. See id. The Departments believe that the 
distinctions between this rule and the Proclamation Bar IFR are of 
legal significance, and those distinctions are discussed at length in 
the IFR. See 89 FR at 48735-36.
    In addition, the rule is designed to implement policies distinct 
from those motivating the Proclamation Bar IFR. This rule seeks to 
enhance the Departments' ability to address historic levels of 
migration and efficiently process migrants arriving at the southern 
border during emergency border circumstances. 89 FR at 48718, 48726-31. 
The rule is intended to better manage already strained resources, 
thereby protecting against overcrowding in border facilities and 
helping to ensure that the processing of migrants seeking protection in 
the United States is done in an effective, humane, and efficient 
manner. See 89 FR at 48767. In that vein, the Proclamation Bar IFR 
differed in important respects from this rule. See 89 FR at 48734-36, 
48738 (explaining that this rule does not treat the manner of entry as 
dispositive in determining asylum eligibility, contains an exception 
that accounts for varied circumstances, and is narrowly tailored to 
address the emergency border circumstances described in the 
Proclamation and this rule and thus does not allow for implementation 
of future proclamations or orders).
    Moreover, this rule is a response to emergency border circumstances 
that did not exist when the Proclamation Bar IFR was promulgated. 89 FR 
at 48726-28. Current trends and historical data indicate that migration 
and displacement in the Western Hemisphere will continue to increase as 
a result of violence, persecution,

[[Page 81210]]

poverty, human rights abuses, the impacts of climate change, and other 
factors. Id. at 48726. The United States Government is working to 
address these root causes of migration and to abate adverse effects 
from unprecedented levels of irregular migration,\209\ including by 
working closely with partner countries across the Western 
Hemisphere.\210\ Id. at 48727. But these efforts will take time to have 
significant impacts and will not alleviate the stress that the border 
security and immigration systems are currently experiencing, as 
described in the Proclamation, the IFR, and this rule. Id.
---------------------------------------------------------------------------

    \209\ See, e.g., The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023), 
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (describing the commitment of the United States and 
Mexico to addressing root causes of migration).
    \210\ See The White House, Fact Sheet: Third Ministerial Meeting 
on the Los Angeles Declaration on Migration and Protection in 
Guatemala (May 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala.
---------------------------------------------------------------------------

iii. Would Be Ineffective or Not Achieve Its Intended Outcomes
    Comment: Commenters expressed opposition to the rule, claiming that 
the rule would decrease, not increase, the efficiency of USCIS 
management of asylum cases and could lead to further backlogs and 
inefficiencies for AOs and immigration courts, complicating the asylum 
process. One commenter believed that the rule would ``exacerbate 
efficiency issues by requiring operational changes to compensate for 
elimination of the preliminary screening to notify noncitizens of the 
expedited removal process and the need to affirmatively express their 
fear of persecution or torture.'' Some commenters asserted that the 
Departments have created an ``unworkable, convoluted, and unfair'' 
system at the border, which CBP officers and AOs will not be prepared 
to adapt to. Commenters claimed that the rule would create additional 
administrative burdens by requiring officers, applicants, stakeholders, 
and judges to apply multiple tests in one proceeding. Further, 
commenters stated that having to track, identify, and apply different 
standards would be more complex for all those involved.
    Other commenters stated that the rule would exacerbate conditions 
at the southern border and would increase the number of migrants who 
enter between POEs, further straining resources and escalating the 
current humanitarian crisis. A commenter stated that the rule may cause 
migrants to be turned away if they walked up to a POE, and thus, it 
would ``inadvertently encourage desperate individuals to resort to 
dangerous methods to reach safety.'' One commenter voiced concern that 
the rule would have an adverse effect on the asylum process because the 
rule would cause a foundational shift in the U.S. asylum system, 
causing access to asylum to be the exception rather than the norm. 
Another commenter claimed that decades of deterrence policies have 
``proven that punitive policies do not reduce irregular migration--they 
only increase chaos, confusion, and human suffering.'' (Emphasis 
omitted.)
    Other commenters claimed that the rule would be ineffective at 
achieving its intended goals for managing the border. One commenter 
stated that people were coming to the United States because they had no 
choice, so securing the border would not solve the problem. Similarly, 
a commenter stated that the rule would be like playing ``whack-a-mole, 
except with real live people, most of whom would not undertake such a 
dangerous, difficult journey to the border if they felt they could stay 
where they were.'' Furthermore, a commenter stated that, without 
additional resources, the Government will have no way of fully 
implementing its own policy. Commenters cited an article stating that 
``it is hard to say with confidence whether this regulation will work 
as the administration intends.'' \211\ One commenter stated that the 
Proclamation did not address the actual needs of asylum seekers, nor 
did it address the problem that has led the U.S. immigration system to 
be ``broken.'' This commenter described a ``broken legal system that 
takes years to process cases, leading individuals to live in limbo and 
without important legal rights.'' Along the same lines, another 
commenter stated that turning away noncitizens is evidence of a faulty 
immigration system and, thus, there are better solutions than turning 
away those asking for help.
---------------------------------------------------------------------------

    \211\ Am. Immigr. Council, Analysis of the President's 212(f) 
Proclamation & Interim Final Rule Restricting Asylum 2 (2024), 
https://www.americanimmigrationcouncil.org/research/american-immigration-council-analysis-presidents-212f-proclamation-and-interim-final-rule.
---------------------------------------------------------------------------

    Other commenters asserted that the rule had not substantiated its 
aim of incentivizing a sustained drop in the number of encounters at 
the southern border. While citing a study, one commenter stated that 
any change in border policy triggers a short-term drop in encounters, 
regardless of the intent of the policy change. The commenter also 
stated that the rule has not provided an adequate explanation for the 
assumption that it would achieve its objective of reducing the number 
of encounters at the border. And while referencing another study, 
another commenter elaborated that policies that limit access to POEs 
increase irregular crossings by noncitizens who cannot wait in Mexico, 
which they stated was also confirmed by DHS's Office of Inspector 
General. Conversely, another commenter remarked that, while there has 
been a temporary drop in encounters immediately after the issuance of 
the IFR, the IFR would be ineffective in deterring migrants in the long 
term because of the rule's exceptions and loopholes. Lastly, another 
commenter expressed concern that ``[a]s written, the [IFR] simply 
continues the status quo by encouraging mass illegal immigration and 
abuse of our asylum system.''
    Response: The Departments disagree that the rule decreases the 
efficiency of management of asylum claims. The Departments recognize 
that the rule may require additional time for AOs and IJs during 
credible fear screenings and reviews, respectively, to inquire into the 
applicability of the rule and noncitizens' fear claims. Similarly, 
where its provisions apply to a given case, applying the rule will 
require additional time during asylum adjudications before USCIS and 
before IJs during section 240 removal proceedings. On the other hand, 
in the absence of this rule's provisions, AOs and IJs would have to 
make other inquiries into potential fear claims under steady-state 
regulations and into asylum eligibility under the Circumvention of 
Lawful Pathways rule. In addition, as discussed throughout this 
preamble, the IFR has resulted in significantly reduced irregular 
migration and has allowed the Departments to filter out a greater 
portion of cases that are unlikely to ultimately be successful on the 
merits. See Section II.A.2 of this preamble. Accordingly, the 
Departments expect the additional time spent by AOs and IJs on 
implementation of the rule to be accompanied by a comparatively smaller 
number of credible fear cases and full adjudications on the merits than 
AOs and IJs would otherwise have been required to handle in the absence 
of the rule. And as discussed in Section III.C.3 of this preamble, AOs 
and IJs are specifically trained to apply multiple tests in the same 
proceedings; any claim that these trained and skilled professionals 
would be burdened by multiple tests is unfounded. Moreover, any burdens 
imposed by the rule on

[[Page 81211]]

CBP officers and agents have been accompanied by a substantial 
reduction in other resource burdens due to a substantial reduction in 
encounters at the southern border caused by this rule.
    The Departments agree with commenters that the immigration system 
is badly in need of additional resources and efficiencies. This rule is 
not a substitute for congressional action, which remains the only long-
term solution to the challenges the Departments have confronted on the 
border for more than a decade. However, the Departments disagree that 
these fundamental challenges mean this rule will be ineffective in 
achieving its aims. Given the absence of reforms by Congress, the 
Departments are working within the legal framework and with the 
resources provided by Congress to ensure the functioning of the border 
security and immigration systems during emergency border circumstances. 
After the implementation of the Proclamation and IFR, the Departments 
saw a significant decrease in encounters along the southern border, 
which has allowed the Departments to more efficiently process 
noncitizens through expedited removal, delivering timely decisions and 
consequences and discouraging irregular migration. In other words, 
commenters are incorrect that the rule would lead to an increase in 
encounters between POEs and decreased efficiencies in the process.
    Notably, in addition to the decrease in encounters, operations at 
POEs have remained largely steady over this time. For example, vehicle 
wait times at POEs on the SWB have not shown changes from typical 
monthly fluctuations. The numbers of vehicle occupants and pedestrians 
entering the United States with lawful status have remained aligned 
with normal entry data. In particular, between August 2023 and May 
2024--the last month before implementation of the IFR--the average wait 
time across all SWB POEs (passenger vehicle, pedestrian, and truck 
cargo) was 32 minutes for vehicles, 15 minutes for cargo trucks, and 9 
minutes for pedestrians. From June 2024 through July 2024, the average 
wait times were 34 minutes for vehicle traffic, 9 minutes for truck 
cargo, and 7 minutes for pedestrians.
    With respect to the suggestion that the rule would inadvertently 
encourage desperate individuals to resort to dangerous methods to reach 
safety (such as crossing between POEs), the Departments note that the 
rule creates no such incentive; experience shows that the IFR has 
improved DHS's capacity to swiftly deliver consequences to those who 
cross between POEs and do not have a lawful basis to remain, including 
through the use of expedited removal. See Section II.A.2 of this 
preamble. Notably, the comparatively abbreviated timeline of the 
expedited removal process serves as a powerful disincentive against 
irregular migration of noncitizens who cross between POEs without 
viable claims for asylum. In addition, the rule, by adopting the 
exceptions contained in section 3(b) of the Proclamation, complements 
and incentivizes the use of lawful, safe, and orderly pathways and 
processes for individuals to come to the United States.
    With respect to the claim that this rule will yield at most a 
short-term reduction in encounters as noncitizens decide that they 
cannot wait in Mexico, the Departments note that thus far, encounters 
have not increased to the levels that were seen in the years leading up 
to the IFR. See Section II.A.2 of this preamble. Moreover, in the 
Departments' experience, migrants are sensitive to the incentives 
created by national policy,\212\ and the Departments see an imperative 
to act in the face of the challenging problem of very high levels of 
irregular migration. Even if the rule's effects did not last 
indefinitely, moreover, that would not be a reason to depart from the 
rule's approach now--when its approach is having its intended effect.
---------------------------------------------------------------------------

    \212\ See, e.g., Miriam Jordan, One Big Reason Migrants Are 
Coming in Droves: They Believe They Can Stay, N.Y. Times (Jan. 31, 
2024), https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html.
---------------------------------------------------------------------------

    The Departments do assess that ensuring that the reduction in 
border encounters is sustained will require not just the rule itself 
but work on the confluence of factors that also contribute to high 
levels of irregular migration. And in parallel with this rule, the 
Administration is working to address those factors.\213\ For instance, 
the United States Government is working to address the root causes of 
migration and to abate adverse effects from unprecedented levels of 
irregular migration,\214\ including through working closely with 
partner countries across the Western Hemisphere.\215\ 89 FR at 48727; 
see Section II.A.2 of this preamble. Additionally, increased access to 
lawful, safe, and orderly pathways will continue to complement one of 
the rule's goals of discouraging irregular migration where 
appropriate.\216\ While these and other parallel measures are necessary 
complements to the rule, they cannot substitute for the rule: These 
efforts will take time to have significant impacts and will not 
alleviate the stress that the border security and immigration systems 
are currently experiencing, as described in the Proclamation, the IFR, 
and this rule. 89 FR at 48727.
---------------------------------------------------------------------------

    \213\ See DHS, Fact Sheet: DHS Continues to Strengthen Border 
Security, Reduce Irregular Migration, and Mobilize International 
Partnerships (June 4, 2024), https://www.dhs.gov/news/2024/06/04/fact-sheet-dhs-continues-strengthen-border-security-reduce-irregular-migration-and; U.S. Agency for Int'l Dev., U.S. Strategy 
to Address the Roots Causes of Migration in Central America--FY 2022 
USAID Results, https://www.usaid.gov/central-america-and-mexico-regional-program/fy-2022-root-causes-strategy-results (last visited 
Sept. 15, 2024).
    \214\ See, e.g., The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023), 
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/ (describing the commitment of the United States and 
Mexico to addressing root causes of migration).
    \215\ See The White House, Fact Sheet: Third Ministerial Meeting 
on the Los Angeles Declaration on Migration and Protection in 
Guatemala (May 7, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala.
    \216\ See, e.g., Ezra Klein, The Real `Border Czar' Defends the 
Biden-Harris Record, N.Y. Times (Sept. 13, 2024), https://www.nytimes.com/2024/09/13/opinion/ezra-klein-podcast-alejandro-mayorkas.html (interview response of Secretary of Homeland Security 
Alejandro Mayorkas explaining that one ``leg[] of the stool'' for 
decreasing encounters is presenting migrants with ``alternative 
means of accessing humanitarian relief in the United States,'' 
including ``the lawful pathways that we have built'').
---------------------------------------------------------------------------

c. Negative Impacts on the U.S. Economy, Workforce, Citizenry, Public 
Health, and Safety
    Comment: Commenters expressed general concern that the IFR would 
negatively impact the U.S. workforce and economy, stating that the 
United States needs immigrants to bolster the workforce and address 
labor shortages, that the United States was built on the labor of 
immigrants, and that reliance on immigrant labor continues today. They 
argued that restricting immigration into the United States exacerbates 
population shortages, and that closing borders to immigrants negatively 
impacts the food supply chain because a significant portion of 
agricultural workers and food processing employees are immigrants. One 
commenter specified that migrants are currently needed because ``the 
reproductive birthrate here has declined'' and ``replacement'' of 
economic contributors is ``essential to avoid complete replacement by 
`artificial intelligence.' ''
    Response: The Departments do not dispute the importance and 
contributions of immigrants to the economy. As noted in Section V.B. of 
this preamble (in which the Departments describe the estimated

[[Page 81212]]

effects of the rule pursuant to Executive Order 12866), the expected 
effect of this rule is primarily to reduce incentives for irregular 
migration and illegal smuggling activity. This rule does not inhibit or 
prevent regular migration into the United States. In particular, the 
Departments have been clear that the IFR does not apply to any 
noncitizen who has a valid visa or other lawful permission to seek 
entry or admission into the United States or presents at a POE pursuant 
to a pre-scheduled time and place. 89 FR at 48715; see also 8 CFR 
208.35(a), 1208.35(a) (excepting from the limitation on asylum 
eligibility noncitizens who are excepted from the Proclamation's 
suspension and limitation on entry under section 3(b) of the 
Proclamation). Additionally, this rule does not change or place any 
restrictions on those who may be eligible for employment authorization 
within the United States. The Departments recognize that there may be 
an impact on some people who attempt to enter the United States 
irregularly and who are removed after their entry, but the Departments 
find that the limitation on asylum eligibility is, on balance, an 
appropriate response to surges in irregular migration during emergency 
border circumstances. For those whom this rule renders ineligible for 
asylum but who ultimately receive statutory withholding of removal or 
CAT protection, another effect would be the increased frequency with 
which those subject to this rule who are present in the United States 
are required to renew their employment authorization and a reduced 
ability for their family to immigrate to the United States.
    Additionally, as noted in the IFR, 89 FR at 48712 & nn.10-13, over 
the past several years the United States Government has implemented a 
historic expansion of lawful pathways and processes to come to the 
United States, including:
    <bullet> The CHNV parole processes, which allow individuals with 
U.S.-based supporters to seek parole on a case-by-case basis for urgent 
humanitarian reasons or significant public benefit;
    <bullet> The Safe Mobility Offices in Colombia, Costa Rica, 
Ecuador, and Guatemala, which provide, among other things, information 
and referrals to humanitarian or family reunification parole processes, 
labor pathways, and expedited refugee processing for eligible 
individuals; \217\
---------------------------------------------------------------------------

    \217\ U.S. Dep't of State, Safe Mobility Initiative: Helping 
Those in Need and Reducing Irregular Migration in the Americas, 
https://www.state.gov/safe-mobility-initiative/ (last visited Sep. 
20, 2024); The White House, Fact Sheet: Biden-Harris Administration 
on World Refugee Day Celebrates a Rebuilt U.S. Refugee Admissions 
Program (June 20, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/20/fact-sheet-biden-harris-administration-on-world-refugee-day-celebrates-a-rebuilt-u-s-refugee-admissions-program/.
---------------------------------------------------------------------------

    <bullet> The expansion of country-specific family reunification 
parole processes for individuals in the region who have U.S. citizen 
relatives in the United States;
    <bullet> Increasing proposed refugee admissions from the Western 
Hemisphere from 5,000 in FY 2021 to up to 50,000 in FY 2024; and
    <bullet> Expanding access to labor pathways.
    More specifically, recognizing the significant contributions 
noncitizens make to the U.S. economy, the United States Government 
significantly expanded access to labor pathways to maintain strong 
economic growth and meet labor demand in the United States. Our efforts 
to expand access to labor pathways have yielded results. In FY 2023, 
the United States issued 442,000 H-2A and H-2B nonimmigrant worker 
visas globally.\218\ Similarly, in FY 2023, the United States issued 
265,777 H-1B specialty occupation visas,\219\ the highest number of 
visas issued or otherwise utilized in decades.\220\ Furthermore, the 
United States also issued more than 192,000 employment-based immigrant 
visas in 2023--far above the pre-pandemic number--and ensured that no 
employment-based visas went unused for the second year running.\221\
---------------------------------------------------------------------------

    \218\ U.S. Dep't of State, Worldwide Visa Operations: Update, 
https://travel.state.gov/content/travel/en/News/visas-news/worldwide-visa-operations-update.html (last updated Jan. 2, 2024).
    \219\ U.S. Dep't of State, Nonimmigrant Visa Statistics, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited Aug. 27, 2024) (see 
the ``FY2019-2023 Detail Table (PDF)'' under ``Nonimmigrant Visas by 
Individual Class of Admission (e.g. A1, A2, etc.)'').
    \220\ Id. (see the ``FY1997-2023 NIV Detail Table (Excel 
spreadsheet)'' under ``Nonimmigrant Visa Issuances by Visa Class and 
by Nationality'' showing issuance totals of H-1B specialty 
occupation visas).
    \221\ USCIS, Completing an Unprecedented 10 Million Immigration 
Cases in Fiscal Year 2023, USCIS Reduced Its Backlog for the First 
Time in Over a Decade (Feb. 9, 2024), https://www.uscis.gov/EOY2023.
---------------------------------------------------------------------------

    The Departments believe that these new or expanded lawful pathways, 
and particularly employment-based pathways, are effective ways to 
address labor shortages and encourage lawful migration. The Departments 
also believe that, by reducing migrants' incentives to use human 
smugglers and traffickers to enter the United States, this rule will 
reduce the likelihood that newly arrived migrants will be subjected to 
labor trafficking. The Departments further reiterate that noncitizens 
who avail themselves of any of the lawful, safe, and orderly pathways 
recognized in this rule will not be subject to the limitation on asylum 
eligibility or the other provisions of the rule.
    Comment: Other commenters provided additional remarks on the 
contributions of immigrants to the United States, stating that 
noncitizens provide value to U.S. communities and that immigrants have 
enriched the United States. While citing a 2024 article, a commenter 
stated that the IFR would subject noncitizens who cross the border 
irregularly to expedited removal and further criminalization through 
criminal prosecution, costing taxpayers over $7 billion to incarcerate 
migrants charged or convicted with unauthorized entry or reentry 
crimes.
    Response: The Departments emphasize that neither the IFR nor this 
rule requires DHS to refer noncitizens it encounters at the border for 
prosecution for unauthorized entry or other immigration-related 
offenses. It is incorrect to cite expedited removal as the vehicle 
leading to mass incarceration and criminal prosecution of migrants. To 
the contrary, expedited removal is a process that allows DHS officials 
to quickly remove certain noncitizens encountered at the border. While 
it is true that noncitizens will spend some time in custody pending 
completion of the expedited removal process (and for a credible fear 
determination where referred), such custody is not for purposes of 
criminal prosecution. Although the Departments recognize commenters' 
concerns regarding the amount of taxpayer funds used to incarcerate 
migrants who are charged and convicted with unauthorized entry or 
reentry crimes, that is not at issue here. And in any event, as 
discussed in Section V.B of this preamble, the Departments expect that 
the rule will result in significantly reduced irregular migration. 
Accordingly, the Departments expect AOs and IJs to conduct a smaller 
number of credible fear cases than AOs and IJs would otherwise be 
required to handle in the absence of this rule, with the possibility of 
attendant savings of Government resources.
d. Other General Opposition
    Comment: Several comments urged the Departments not to close the 
SWB.
    Response: The rule does not close the SWB. It adds a limitation on 
asylum eligibility and alters the process for those individuals 
described in section 3(a) of the Proclamation who are not described in 
section 3(b) of the

[[Page 81213]]

Proclamation, but it does not ``close'' the border.
    Additionally, the rule does not impose any changes to asylum 
eligibility or processing of noncitizens who use lawful, safe, and 
orderly pathways to seek entry to the United States. Noncitizens who 
use the CBP One app to pre-schedule an appointment at a SWB POE to 
present themselves at the border in a safe, orderly, and lawful manner 
are excepted from the suspension and limitation on entry under section 
3(b) of the Proclamation and so are excepted from the limitation on 
asylum eligibility and changes to expedited removal processing. This 
exception is significant. From June 5, 2024, through August 31, 2024, 
123,600 noncitizens with CBP One appointments presented at POEs and 
were accordingly processed outside of the IFR's provisions and will be 
excepted from the limitation on asylum eligibility if they choose to 
apply for asylum.\222\ See 8 CFR 208.35(a)(1), 1208.35(a)(1); June 3 
Proclamation sec. 3(b)(v)(D). During the pre-pandemic period, 
approximately 330 encounters were processed at SWB POEs per day.\223\ 
Since January 2023 through August 2024, approximately 1,500 encounters 
have been processed at SWB POEs per day.\224\ And since the start of FY 
2024 through August 2024, that average has increased to approximately 
1,700 per day.\225\
---------------------------------------------------------------------------

    \222\ OHSS analysis data downloaded from UIP on September 3, 
2024 (IFR Details tab).
    \223\ OHSS analysis of July 2024 Persist Dataset (OFO Encounters 
tab).
    \224\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (OFO Encounters tab).
    \225\ Id.
---------------------------------------------------------------------------

C. Provisions of the Rule

1. Limitation on Asylum Eligibility
a. Proclamation Exceptions--Section 3(b) of Proclamation
    Comment: Commenters raised a number of concerns regarding the 
exceptions to the Proclamation's suspension and limitation on entry, 
including the exceptions for UCs; those permitted to enter based on the 
totality of the circumstances; and those permitted to enter based on 
operational considerations.
    As an initial matter, a majority of commenters supported the 
Proclamation's exclusion of UCs from the suspension and limitation on 
entry or from provisions of the rule. However, some commenters stated 
that excepting UCs from the Proclamation's suspension and limitation on 
entry, without also providing an exception for family units, would lead 
families traveling together to choose to ``self-separate'' at the 
border and send the children across unaccompanied because conditions in 
Mexico are too dangerous for children to wait with their parents until 
the family can cross together. Similarly, commenters stated that 
excepting UCs from the Proclamation's suspension and limitation on 
entry would encourage the trafficking and exploitation of children. 
Commenters stated that the rule, without an additional family-unit 
exception, would therefore result in the separation of families.
    Another commenter opposed the Proclamation's exception for UCs. 
This commenter stated that noncitizens, including those who pose 
security risks, would attempt to pose as UCs to evade the 
Proclamation's suspension and limitation on entry.
    Additionally, some commenters opposed the exceptions in sections 
3(b)(vi) and 3(b)(vii) of the June 3 Proclamation, which provide that 
the suspension and limitation on entry will not apply to a noncitizen 
if a CBP immigration officer determines that the noncitizen is 
permitted to enter either based on the totality of the circumstances or 
based on operational considerations. Commenters expressed concern that 
these exceptions are vague and subjective and should not be left to the 
discretion of CBP immigration officers.
    Specifically, commenters asserted that the Proclamation does not 
provide any standards or make clear how CBP officers will determine 
when someone is excepted based on the totality of the circumstances or 
operational considerations. Commenters also stated that CBP immigration 
officers may not be properly equipped to apply the Proclamation's 
exceptions, which would result in arbitrary decision-making and 
removals in violation of non-refoulement principles.
    Other commenters stated that the Proclamation's exceptions were 
overly broad and would authorize CBP immigration officers to use them 
as a ``loophole'' to permit large populations of noncitizens to enter 
the country based on the ``totality of the circumstances'' or due to 
``operational considerations.'' These commenters stated that, as a 
result, overbroad use of these exceptions will result in fewer 
noncitizens being removed and will not change the status quo of large 
numbers of noncitizens crossing the border.
    Lastly, commenters expressed concern that noncitizens excepted 
under section 3(b)(vi) or 3(b)(vii) of the June 3 Proclamation based on 
the totality of the circumstances or for operational considerations and 
who are subsequently placed into immigration court proceedings will be 
unable to demonstrate that they are not subject to the rule's 
provisions in immigration court.
    Response: Any comments opposing provisions of the Proclamation, as 
opposed to the parallel provisions of the rule, are outside of the 
scope of this rule. President Biden issued the Proclamation by the 
authority vested in the President by the INA. See INA 212(f), 8 U.S.C. 
1182(f); INA 215(a), 8 U.S.C. 1185(a); 89 FR 48487. Under section 3(d) 
of the Proclamation, the President directed the Secretary and Attorney 
General to promptly consider issuing any instructions, orders, or 
regulations as may be necessary to address the circumstances at the 
southern border, including any additional limitations and conditions on 
asylum eligibility that they determine are warranted, subject to any 
exceptions to such asylum eligibility limitations and conditions that 
they determine are warranted. The Departments lack authority to amend 
the exceptions to the Proclamation's suspension and limitation on 
entry, as set forth in section 3(b) of the Proclamation, and any 
proposal to do so would be outside the scope of this rule. At the same 
time, the Departments may depart from the Proclamation's section 3(b) 
exceptions in determining which exceptions to this rule's limitation on 
asylum eligibility are warranted to the extent they are adopted in this 
rule, and the Departments have responded to comments suggesting such 
exceptions below.
    To the extent that commenters suggest excepting family units from 
the rule's limitation on asylum eligibility, the Departments reiterate 
that excepting all family units could incentivize families to bring 
their children on the often-perilous journey to the United States. See 
89 FR at 48757. Such a broad exception would also be at odds with the 
Proclamation and rule's goals in addressing emergency border 
circumstances. See id. at 48726-31 (``Need for These Measures'').
    Further, the Departments do not believe that the rule will 
meaningfully incentivize the ``self-separation'' of families. Because 
UCs are already excluded from expedited removal by statute, see 8 
U.S.C. 1232(a)(5)(D), the Departments do not expect based on their 
experience implementing border enforcement and asylum that excepting 
UCs, but not family units, from the limitation on asylum eligibility 
would lead to increased incentives to ``self-separate.'' Rather, in the 
time since the

[[Page 81214]]

IFR took effect, average daily encounters of UCs at the SWB have 
actually decreased by 37 percent.\226\
---------------------------------------------------------------------------

    \226\ See OHSS analysis of July 2024 OHSS Persist Dataset and 
data downloaded from UIP on September 3, 2024 (Summary Statistics 
tab). Consistent with the discussion in Section II.C.1 of this 
preamble, encounters of individuals in family units and single 
adults have fallen more sharply than encounters of UCs, which has 
caused UCs' share of total encounters to increase, notwithstanding 
the overall drop in UC encounters in absolute numbers. The relative 
stability of UC flows compared to family unit flows is consistent 
with the fact that most policy changes in recent years (including 
the current rule) have not had a direct impact on UCs.
---------------------------------------------------------------------------

    Moreover, on balance, the Departments believe that the important 
interests of protecting the statutorily recognized vulnerabilities of 
UCs, while maintaining the fundamental goals of the rule in addressing 
emergency border circumstances, outweigh any consequences of claimed 
incentives for noncitizens to ``self-separate'' at the border. Notably, 
the Departments emphasized the importance of maintaining family unity 
in the IFR and crafted a number of exceptions to the limitation to 
preserve family unity and avoid family self-separations. See 8 CFR 
208.35(a)(2), 208.35(c), 1208.35(a)(2), 1208.35(c); see also 89 FR at 
48733 (explaining that the rule contains exceptions that ``avoid[] the 
separation of families''). For instance, if any member of a 
noncitizen's family--as described in 8 CFR 208.30(c)--with whom the 
noncitizen is traveling demonstrates exceptionally compelling 
circumstances for entering the United States during emergency border 
circumstances, then all of the members of that family unit traveling 
together will be excepted from the rule's limitation on asylum 
eligibility. 8 CFR 208.35(a)(2), 1208.35(a)(2); see also 89 FR at 
48754. The rule also contains an explicit family unity provision in the 
AMI process before USCIS and in removal proceedings before EOIR; this 
provision allows a principal asylum applicant to be excepted from the 
rule's limitation on asylum eligibility if the applicant can establish 
that the applicant meets the statutory requirements for statutory 
withholding of removal or CAT protection, among other requirements. See 
8 CFR 208.35(c), 1208.35(c); see also 89 FR at 48733 (explaining family 
unity provision requirements).
    The Departments recognize commenters' concerns about the 
vulnerability of UCs. The Departments encourage all those who seek to 
travel to the United States, including UCs, to take advantage of 
available lawful, safe, and orderly pathways and processes rather than 
rely on smugglers or criminal organizations to facilitate a potentially 
dangerous journey. 89 FR at 48723; 88 FR at 31346. However, the 
Departments note that UCs are particularly vulnerable and entitled to 
special protections under the law. See 88 FR at 31346 (citing INA 
208(a)(2), 8 U.S.C. 1158(a)(2) (providing that safe-third-country bar 
does not apply to UCs); INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) 
(stating that an AO has initial jurisdiction over the asylum claims of 
UCs)); see generally 8 U.S.C. 1232. Given that UCs have long had 
special rules and protections applicable to them in immigration 
proceedings, the Departments disagree with commenters that this rule's 
adoption of the exception for UCs at section 3(b)(iii) of the 
Proclamation would create any meaningful new incentive for noncitizens 
who may be a security risk to attempt to pose as UCs in order to 
circumvent the rule's provisions. Further, immigration officers have 
training, knowledge, skills, and experience in identifying fraudulent 
behavior. See 89 FR at 48744 (explaining that CBP immigration officials 
``have skills and expertise in interacting with individuals and 
observing human behavior and in determining appropriate follow up steps 
with regards to any behaviors or indicators of concern'').
    Furthermore, with respect to commenters' concerns regarding the 
discretionary nature of the exceptions at sections 3(b)(vi) and 
3(b)(vii) of the Proclamation based on the totality of the 
circumstances and operational considerations, the Departments reiterate 
that comments on the Proclamation itself are outside the scope of this 
rulemaking. And insofar as these comments relate to this rule, the 
Departments disagree that these exceptions will essentially swallow the 
rule, as commenters suggest, or that CBP immigration officers will be 
unable to apply these exceptions fairly or consistently. Section 
3(b)(vi) of the Proclamation permits entry based on the totality of the 
circumstances, and then delineates examples such as ``consideration of 
significant law enforcement, officer and public safety, urgent 
humanitarian, and public health interests at the time of the entry or 
encounter that warranted permitting the noncitizen to enter.'' Thus, 
this ``totality of the circumstances'' exception provides numerous 
examples that would allow the CBP immigration officer to determine 
whether such circumstances were present such that a noncitizen would 
not be subject to the Proclamation's suspension and limitation on 
entry. The discretionary nature of the ``operational considerations'' 
exception provides flexibility for CBP immigration officers to better 
manage migratory flows during emergency border circumstances, which is 
a driving purpose of this rule. 89 FR at 48723, 48726-31 (explaining, 
in detail, the need for the rule). Moreover, CBP officers have 
experience considering various factors and factual scenarios when 
exercising their discretion as immigration officers, including 
determining appropriate processing pathways, and such experience is 
also relied upon in making these decisions.
    Finally, as to commenters' concerns about whether noncitizens who 
were excepted from the Proclamation's suspension and limitation on 
entry under subsections 3(b)(vi) and (vii) of the Proclamation will 
nonetheless be subject to the rule's limitation on asylum eligibility 
in immigration court, those concerns are misplaced. By their terms, 
subsections 3(b)(vi) and (vii) apply to ``any noncitizen who is 
permitted to enter by the Secretary of Homeland Security, acting 
through a CBP immigration officer,'' based on certain considerations. 
Whether a noncitizen was excepted from the Proclamation and permitted 
to enter the United States is a question of historical fact, documented 
by CBP in the appropriate electronic processing system(s),\227\ and 
does not require a separate assessment by an AO or IJ. See 89 FR at 
48732 n.169. Thus, any noncitizen who is described in subsections 
3(b)(vi) and (vii) of the Proclamation will not be subject to the 
limitation on asylum eligibility contained in the rule. Id.
---------------------------------------------------------------------------

    \227\ Memorandum for Exec. Dirs., Headquarters & Dirs., Field 
Operations, OFO, from Ray Provencio, Acting Exec. Dir., 
Admissibility and Passenger Programs, OFO, Re: Implementation of 
Presidential Proclamation and Interim Final Rule, Securing the 
Border attach. 5 (June 4, 2024) (Muster).
---------------------------------------------------------------------------

i. Legal Concerns Related to CBP One and the Lack of Exceptions
    Comment: Commenters raised a number of concerns regarding the 
rule's exception to the limitation on asylum eligibility for 
noncitizens who use the CBP One app to present at a POE pursuant to a 
pre-scheduled time and place. See 8 CFR 208.35(a)(1), 1208.35(a)(1); 
June 3 Proclamation sec. 3(b)(v)(D).
    Commenters expressed concern that use of CBP One is unlawful. Some 
commenters voiced concern that ``barring'' those who enter the United 
States along the SWB without a pre-

[[Page 81215]]

scheduled CBP One appointment would violate U.S. and international law 
and ``effectively eliminate[] asylum'' for every noncitizen who crosses 
into the United States at the southern border without an appointment. 
Commenters further stated that, while the Departments seek to 
distinguish the IFR from the vacated Proclamation Bar IFR by explaining 
that it is being implemented during an emergency and some lawful 
pathways remain available to migrants, most who cannot wait for a CBP 
One app appointment would be barred from asylum under the IFR. 
Similarly, commenters stated that the INA requires DHS to provide every 
noncitizen who arrives in the United States with the opportunity to 
establish a credible fear of persecution--not just those with the 
resources to own a smartphone and the ability to schedule an 
appointment. Other commenters stated that the CBP One app codifies a 
form of electronic metering and essentially replaces a program that 
relied on metering to limit the number of noncitizens who could 
approach POEs, a practice that, the commenters argued, was held 
unlawful by the Federal courts.
    One commenter expressed concern with the use of the CBP One app, 
stating that the app has been used to release record numbers of 
undocumented noncitizens into the United States. The commenter warned 
that the Biden Administration could continue to utilize and expand upon 
the CBP One app without any limits under the IFR. The commenter also 
raised concerns that the number of appointments available through the 
CBP One app can be expanded without limit, such that a large population 
of noncitizens could be excepted from the Proclamation's suspension and 
limitation on entry.
    Several commenters expressed concern that the IFR, unlike the 
Circumvention of Lawful Pathways rule, does not provide an exception 
for those who are unable to access or use the CBP One application. 
Other commenters asserted that the IFR does not provide a justification 
for deviating from the Circumvention of Lawful Pathways rule's 
scheduling issues exception and expressed concern that while the 
Circumvention of Lawful Pathways rule's exception has not been properly 
applied, the lack of such an exception in the IFR would expose migrants 
who are unable to access or use the CBP One app to the risk of 
refoulement.
    Response: The Departments believe the exception for noncitizens who 
present at a POE pursuant to a pre-scheduled time and place, such as 
through the CBP One app, is consistent with the INA and the purpose of 
the Proclamation and this rule.
    As an initial matter, the Departments note that migrants do not 
apply for asylum with CBP at a POE. At POEs, CBP is responsible for the 
inspection and processing of all applicants for admission, including 
individuals who may intend to seek asylum in the United States. 8 CFR 
235.1(a) (concerning all applicants for admission at POEs); id. 
235.3(b)(4) (concerning individuals processed for expedited removal and 
claiming fear of persecution or torture). While the CBP One app is one 
key way that CBP is streamlining and increasing its capacity to process 
undocumented noncitizens, the app is not a method of seeking asylum in 
the United States, and CBP officers do not determine the validity of 
any claims for protection.
    The Departments disagree that the use of the CBP One app to manage 
the flow of migration and intake into POEs and to encourage the use of 
safe, orderly, and lawful pathways constitutes a form of ``digital 
metering,'' unlawfully withholds or bars access to the asylum process, 
or conflicts with the agency's duties under 8 U.S.C. 1225(a)(3). Any 
noncitizen who is processed for expedited removal upon arrival at a POE 
and who indicates an intention to apply for asylum or a fear of return, 
whether or not the noncitizen uses the CBP One app, will be referred 
for a credible fear interview. Further, as noted in Sections II.B and 
III.A of this preamble, the United States implements its non-
refoulement obligations under the 1967 Refugee Protocol through the 
provisions governing withholding of removal under section 241(b)(3) of 
the INA, 8 U.S.C. 1231(b)(3), rather than through section 208 of the 
INA, 8 U.S.C. 1158, which governs asylum. Noncitizens who are 
ineligible for asylum under the rule, such as those who enter the 
United States without pre-scheduling an appointment through the CBP One 
app, and are unable to establish that exceptionally compelling 
circumstances exist remain eligible to seek statutory withholding of 
removal and CAT protection consistent with these obligations.
    The Departments also disagree with commenter concerns regarding 
unlimited expansion of CBP One or the use of CBP One to release 
individuals. The CBP One app is intended to allow for the orderly 
processing of noncitizens and, under the Proclamation and this rule, 
use of the app is especially critical during emergency border 
circumstances because it allows DHS to maximize the use of its limited 
resources. 89 FR at 48737; see also 88 FR at 31317-18 (explaining that 
the CBP One app ``enables the POEs to manage the flows in a safe and 
efficient manner, consistent with [each POE's] footprint and 
operational capacity, which vary substantially across the SWB''). Thus, 
because the CBP One app allows each POE to manage the daily number of 
appointments that the POE has the capacity to handle, commenter 
concerns that the use of CBP One appointments will be vastly expanded 
beyond CBP's capacity to process them are unfounded, especially during 
the emergency border circumstances that the Proclamation and this rule 
are designed to address. In addition, with regard to concerns regarding 
the number of noncitizens released following the use of the CBP One app 
to schedule an appointment, use of the CBP One app does not guarantee a 
particular processing disposition, and all such determinations are made 
on a case-by-case basis.\228\
---------------------------------------------------------------------------

    \228\ See Memorandum for Exec. Dirs., Headquarters & Dirs., 
Field Operations, OFO, from Ray Provencio, Acting Exec. Dir., 
Admissibility and Passenger Programs, OFO, Re: Implementation of 
Presidential Proclamation and Interim Final Rule, Securing the 
Border attach. 5-6 (June 4, 2024) (Muster); CBP, CBP 
One<SUP>TM</SUP> Mobile Application (last modified Sept. 23, 2024), 
https://www.cbp.gov/about/mobile-apps-directory/cbpone (``Upon 
arriving at a POE, CBP officers inspect and evaluate all individuals 
to determine the appropriate processing disposition.'').
---------------------------------------------------------------------------

    Regarding commenters' concerns that the IFR does not provide an 
exception for those who present at a POE but are unable to access or 
use the CBP One app, here, and as noted in the IFR, the Departments 
choose not to include an exception to the rule's limitation on asylum 
eligibility for those who present at a POE but have an inability to 
access the CBP One app due to significant technical failure or other 
ongoing and serious obstacle. 89 FR at 48732 n.171. The IFR explained 
that the Departments made this decision in part because of the 
different purposes of this rule and the Circumvention of Lawful 
Pathways rule. This rule, unlike the Circumvention of Lawful Pathways 
rule, applies only during emergency border circumstances as described 
in the Proclamation and the rule, when encounters strain the border 
security and immigration systems' capacity. In contrast, the primary 
aim of the Circumvention of Lawful Pathways rule was to encourage the 
use of lawful, safe, and orderly pathways. Therefore, the Departments 
determined that the heightened need to address these emergency border 
circumstances necessitated limiting the scheduling issues exception in 
this rule.
    Moreover, experience applying the Circumvention of Lawful Pathways 
rule in credible fear screenings indicates that

[[Page 81216]]

the exception for presenting at a POE and being unable to access or use 
the CBP One app rarely applied.\229\ The Circumvention of Lawful 
Pathways rule excepted, in addition to UCs, three categories of 
noncitizens: (1) individuals provided authorization to travel to the 
United States to seek parole, pursuant to a DHS-approved parole 
process; (2) individuals who presented at a POE with a CBP One 
appointment or who presented at a POE and demonstrated ``it was not 
possible to access or use the DHS scheduling system due to language 
barrier, illiteracy, significant technical failure, or other ongoing 
and serious obstacle''; and (3) individuals who sought asylum or other 
protection in a country through which the alien traveled and received a 
final decision denying that application. 8 CFR 208.33(a)(2)(ii), 
1208.33(a)(2)(ii). Leaving aside UCs, as UCs are not subject to 
expedited removal, 8 U.S.C. 1232(a)(5)(D), noncitizens could establish 
at least one of these exceptions in only approximately 4.7 percent of 
total credible fear screenings conducted by USCIS under the 
Circumvention of Lawful Pathways rule (i.e., including referrals from 
USBP and OFO).\230\ While DHS data do not differentiate among the types 
of exceptions, available data show that the exception for presenting at 
a POE and being unable to utilize the CBP One app applied in less than 
5 percent of all credible fear determinations made by USCIS when 
considering whether the presumption of asylum ineligibility 
applied.\231\
---------------------------------------------------------------------------

    \229\ OHSS analysis of June 2024 Enforcement Lifecycle data 
(Fear Screening--CLP tab).
    \230\ Id.
    \231\ Id.
---------------------------------------------------------------------------

    The data showing the limited application of the exception for 
presenting at a POE and being unable to use CBP One reinforce the 
Departments' judgment not to adopt a similar exception in the emergency 
border circumstances in which this rule applies. Consistent with AOs' 
obligation under 8 CFR 208.30(d) to elicit testimony on all potentially 
relevant information, USCIS guidance instructs AOs to elicit testimony 
related to all exceptions to the presumption of asylum ineligibility 
where they may apply and evaluate their applicability, which for the 
exception under the Circumvention of Lawful Pathways rule (8 CFR 
208.33(a)(2)(ii)(B)) would be any case where the presumption of asylum 
ineligibility applied and the noncitizen presented at a POE. At a time 
where emergency border circumstances are present that trigger a 
suspension and limitation on entry and necessitate the limitation on 
asylum eligibility in the current rule, the Departments do not believe 
it would be appropriate to expend the resources it would take to elicit 
testimony about possible ways a noncitizen was unable to access the CBP 
One app and analyze that information in every credible fear interview 
where the noncitizen presented at a POE without an appointment in order 
to apply an exception to the limitation on asylum eligibility similar 
to the one present at 8 CFR 208.33(a)(2)(ii)(B), particularly where 
recent experience shows that such an exception is rarely applicable in 
credible fear determinations.
    In addition to these exceptions, the Circumvention of Lawful 
Pathways Rule also contains a ``[r]ebuttal'' ground for ``exceptionally 
compelling circumstances.'' 8 CFR 208.33(a)(3), 1208.33(a)(3). The 
Departments determined that this rule should also contain an exception 
for exceptionally compelling circumstances to ensure that noncitizens 
with a time-sensitive imperative for entering the United States without 
authorization may avoid application of this rule's limitation on asylum 
eligibility. Notably, under the Circumvention of Lawful Pathways rule, 
across the set of all expedited removal cases that resulted in credible 
fear interviews (i.e., from encounters at and between POEs), USCIS 
found that an ``exceptionally compelling circumstances'' rebuttal 
ground applied in over 10 percent of those cases where the rule's 
presumption of asylum ineligibility was analyzed as part of the 
credible fear determination.\232\ Under the present rule, the 
``exceptionally compelling circumstances'' exception to the rule's 
limitation on asylum eligibility was found to apply in approximately 11 
percent of all encounters with credible fear determinations issued by 
USCIS where the limitation on asylum eligibility was considered.\233\ 
Under this rule, noncitizens may also be permitted to enter under one 
of the exceptions in section 3(b) of the Proclamation. For those who 
are unable to meet such an exception, the Departments believe that, in 
the emergency border circumstances in which this rule applies, such 
noncitizens should wait for a CBP One appointment. See 89 FR at 48732 
n.171.
---------------------------------------------------------------------------

    \232\ See id.
    \233\ See OHSS analysis of June 2024 Enforcement Lifecycle data 
(Fear Screening--STB tab).
---------------------------------------------------------------------------

    For those individuals seeking a CBP One appointment, CBP continues 
to take steps to make the process of seeking appointments more 
equitable and accessible. For instance, individuals have the chance to 
request an appointment within a 12-hour period each day, with 
appointments allocated to the requesting group the following day.\234\ 
In addition, noncitizens are not required to use the same mobile phone 
or device to request an appointment each day, as appointment requests 
are allocated based on the requesting registration. In other words, if 
a noncitizen has a registration, they can request an appointment each 
day from any mobile device. Individuals are not required to utilize a 
single device for each step of the process, and they may use a shared 
or borrowed device to request and schedule an appointment.
---------------------------------------------------------------------------

    \234\ See CBP, CBP One<SUP>TM</SUP> Mobile Application (last 
modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
---------------------------------------------------------------------------

    If a noncitizen receives an appointment, they are notified by an 
email notification, a push notification to the device that made the 
appointment, an in-app message, and a change to their registration 
status in the app.\235\ The push notification that is sent to the 
device provides a notification to check the app, alerting a user to log 
into the app to review and confirm their appointment. This ensures that 
the notification is provided in multiple ways, such that those without 
continuous access to the same mobile device can still learn of their 
appointment status by logging into the app. If selected for an 
appointment, the individual then has 23 hours to complete the 
geolocation and liveness check and schedule the appointment.\236\ 
Individuals may also request an automatic 24-hour extension to complete 
the process, if needed. Again, this can be done via any mobile device.
---------------------------------------------------------------------------

    \235\ See DHS, DHS/CBP/PIA-076(a), Privacy Impact Assessment 
Update for the Collection of Advance Information from Certain 
Undocumented Individuals on the Land Border: Post Title 42, at 4 
(2023), https://www.dhs.gov/sites/default/files/2023-12/23_1019_priv_pia-cbp-076%28a%29-advance-collection-appendix-update.pdf.
    \236\ See DHS, DHS/CBP/PIA-076(a), Privacy Impact Assessment 
Update for the Collection of Advance Information from Certain 
Undocumented Individuals on the Land Border: Post Title 42, at 4 
(2023), https://www.dhs.gov/sites/default/files/2023-12/23_1019_priv_pia-cbp-076%28a%29-advance-collection-appendix-update.pdf.
---------------------------------------------------------------------------

    Individuals who do not have a smartphone or have other phone-
related problems can seek assistance from trusted partners, if needed. 
Individuals are also permitted to seek assistance from others to 
complete the registration, request, and appointment confirmation 
process.
ii. Wait Times for CBP One Appointments
    Comment: Commenters expressed concerns with long wait times for 
those using the CBP One app to schedule an

[[Page 81217]]

appointment, with one organizational commenter stating that waiting 
times routinely reach half a year due to the ``enforced scarcity of 
appointments.'' Several commenters expressed concern that capping CBP 
One appointments at 1,450 per day is insufficient to address the number 
of arrivals at the border. For example, a commenter stated that, while 
1,450 CBP One appointments are assigned each day, the ``average number 
of appointment requests made per month between January 2023 and 
February 2024 was just under 5 million.'' A commenter stated that 
appointments are limited to less than 20 percent of the POEs at the 
SWB, while others noted that CBP One appointments are offered at only 
eight POEs along the almost 2,000 miles of the SWB.
    Commenters further stated that the IFR would likely increase wait 
times by incentivizing more people to use the CBP One app--including 
Mexican nationals subject to the IFR--thereby exacerbating the 
significant backlog for securing an appointment.
    Several commenters expressed additional concern that long wait 
times heighten the risk of danger for migrants in Mexico who intend to 
seek asylum in the United States. Specifically, multiple commenters 
warned that long wait times place migrants at severe risk of rape, 
assault, torture, kidnapping, and death, while leaving Mexican 
nationals to wait in the same country from which they are fleeing, and 
that those waiting for a CBP One appointment are vulnerable to being 
targeted by ``criminal actors and detained or mistreated by Mexican 
government officials.'' Other commenters expressed concern about the 
hot weather, insufficient housing, and lack of access to essential 
resources. Additionally, commenters remarked that violence, coercion, 
and apprehensions by Mexican authorities prevent migrants waiting in 
Mexico from attending their pre-scheduled appointments. Commenters 
further expressed that particularly vulnerable populations who are 
waiting in Mexico, including Black migrants and women, are particularly 
susceptible to discrimination, violence, and heightened barriers to 
report crimes and access support services.
    A few commenters further addressed health concerns for noncitizens 
required to wait in Mexico for their CBP One appointment. A commenter 
observed that the wait times for an appointment are ``neither 
predictable nor reliable,'' which compounds stress and difficulties for 
noncitizens. The commenter further stated that health problems among 
certain noncitizens make it more untenable for them to wait in Mexico. 
The commenter wrote that living conditions in Mexico exacerbate 
preexisting conditions such as asthma, cancer, and mental health 
concerns related to trauma, and that migrants have limited access to 
adequate medical care and life-saving medicine in Mexico. Likewise, 
another commenter observed that noncitizens living with HIV--both 
Mexican and non-Mexican--experience barriers to accessing treatment and 
medication while waiting in Mexico. Another commenter expressed concern 
over documented outbreaks of chicken pox in informal migrant 
encampments in Mexico City due to the high number of asylum seekers 
waiting for an appointment.
    A commenter remarked that noncitizens may be granted appointments 
at a POE far from where they are physically located, despite the app's 
purported use of geolocational technology, forcing individuals to risk 
travel within Mexico. The commenter stated that Mexican authorities do 
not issue and renew temporary humanitarian visas to a majority of 
migrants, despite the fact that these visas are required to access bus 
and airline travel. The commenter additionally wrote that Mexican 
authorities have set up checkpoints targeted at preventing individuals 
from accessing public transportation required to make it to their 
scheduled CBP One appointments.
    Response: Regarding concerns about long wait times to schedule a 
CBP One appointment, and the uncertainty this may cause, in large part 
due to high levels of migration in the region, the Departments note 
that CBP One is a tool that facilitates safe and orderly processing of 
noncitizens at POEs, and has aided CBP's efforts to increase processing 
at POEs.\237\ CBP currently allocates a certain number of appointments 
per day to those registrations that have been pending for the longest 
period of time, based on the date on which a registration was created. 
CBP also regularly monitors wait times to be able to address any 
issues. While average wait times have generally increased since June 
2023 due to demand for appointments, as of August 25, 2024, CBP has not 
seen evidence that average wait times have increased at a greater rate 
following the implementation of the Proclamation and IFR. Indeed, CBP 
One represents a significant expansion of CBP's capacity to process 
noncitizens at SWB POEs: During the pre-pandemic period, CBP's OFO 
processed around 330 people per day.\238\ From January 2023 (when CBP 
opened CBP One for direct scheduling) through August 31, 2024, OFO has 
processed four-and-a-half times that number daily.\239\ Although demand 
for appointments currently outpaces supply, there are now more CBP One 
appointments available daily (1,450) than average daily encounters at 
and between POEs between FYs 2011 and 2018 (1,300).\240\
---------------------------------------------------------------------------

    \237\ See, e.g., Memorandum for William A. Ferrara, Exec. Ass't 
Comm'r, OFO, from Troy A. Miller, Acting Comm'r, CBP, Re: Guidance 
for Management and Processing of Undocumented Noncitizens at 
Southwest Border Land Ports of Entry (Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf; 89 
FR at 48737.
    \238\ See OHSS analysis of July 2024 Persist Dataset (OFO 
Encounters tab).
    \239\ See id.
    \240\ See OHSS analysis of July 2024 Persist Dataset (Encounters 
FY 2000-2024 tab).
---------------------------------------------------------------------------

    With regard to concerns about the number of available CBP One 
appointments, DHS acknowledges that there are more noncitizens seeking 
appointments than there are available appointments. For example, in 
July 2024, CBP received an average of 282,824 CBP One appointment 
requests per day. The total appointment requests over multiple day 
periods include a significant number of repeat requests because 
individuals are encouraged to submit an appointment request each day 
until gaining an appointment, and thus monthly totals do not reflect an 
accurate count of unique individuals seeking appointments. However, 
this high level of demand reflects the high levels of migration 
throughout the region, which CBP has responded to by increasing 
capacity to process noncitizens at POEs. CBP has increased the number 
of available appointments since January 2023 but notes that POEs can 
safely and securely process only a finite number of migrants,\241\ and 
that the current number of appointments reflects that capacity. The 
Departments disagree that there is ``enforced scarcity'' of 
appointments or that the number of appointments is set in an arbitrary 
manner. The number of appointments is determined by a port's capability 
and capacity to process noncitizens. CBP's ability to process 
undocumented noncitizens in a timely manner at land border POEs is 
dependent on CBP

[[Page 81218]]

resources, including infrastructure and personnel.\242\
---------------------------------------------------------------------------

    \241\ See, e.g., Memorandum for William A. Ferrara, Exec. Ass't 
Comm'r, OFO, from Troy A. Miller, Acting Comm'r, CBP, Re: Guidance 
for Management and Processing of Undocumented Noncitizens at 
Southwest Border Land Ports of Entry 1-2 (Nov. 1, 2021), https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
    \242\ See, e.g., id.
---------------------------------------------------------------------------

    With regard to the number of POEs at which appointments are 
available and the locations of such ports, OFO must evaluate each POE's 
unique capabilities, both with respect to processing and staffing. 
There are also important variances between POEs due to geography, 
infrastructure, and workload. These considerations are evaluated 
continuously as OFO determines the number of appointments to schedule 
and at which ports to schedule them. OFO has limited use of CBP One to 
certain POEs that have the space and infrastructure to process elevated 
numbers of inadmissible noncitizens and has assigned staff to those 
POEs to conduct this processing. Adding additional POEs would require 
reallocation of that staffing, exchanging capacity in one location for 
another. Additionally, OFO has sought to utilize POEs that are located 
in or near urban areas with sufficient resources for migrants who may 
be released from OFO custody.
    The Departments acknowledge that there may be humanitarian and 
health concerns for noncitizens in Mexico, including but not limited to 
individuals seeking a CBP One appointment, particularly for those with 
preexisting or underlying health conditions. The Departments also 
acknowledge that the congregation of groups of individuals can lead to 
increased transmission of communicable diseases. Similarly, the 
Departments acknowledge that some noncitizens seeking an appointment--
including Mexican nationals--may be required to travel through Mexico 
to reach their appointment, and to wait in Mexico for their 
appointment, which may present safety concerns. The Departments also 
recognize that such concerns may be exacerbated by uncertainty about 
how long a migrant may have to wait to be processed at a POE, which may 
make it harder to schedule medical care or travel within Mexico.
    Such circumstances, however, have been a reality that existed for 
migrants seeking to present at POEs prior to the introduction of CBP 
One. Indeed, before CBP One's introduction, migrants faced greater 
unpredictability given the high levels of migration in the region, 
which predate the introduction of CBP One,\243\ and the fact that 
before CBP One's introduction, migrants did not have the ability to 
wait anywhere in the expanded geographic boundaries now available to 
migrants using CBP One. In another respect, too, migrants would face 
worse conditions without this rule: As explained elsewhere in this 
preamble, the Departments assess that, when levels of encounters by 
USBP are elevated, such that DHS does not have the capacity to process 
most noncitizens through expedited removal and therefore must release a 
significant number of noncitizens pending section 240 removal 
proceedings, this dynamic serves to incentivize more migrants to travel 
through Mexico. This dynamic both exacerbates dangerous conditions 
along that route and exposes more migrants to dangerous conditions 
along the way. While CBP has continued to take steps to increase 
processing at POEs in an effort to provide a safe and orderly mechanism 
to enter the United States, it continues to be operationally impossible 
for CBP to immediately process all noncitizens seeking to enter the 
United States.
---------------------------------------------------------------------------

    \243\ See, e.g., Perla Trevizo, Dozens of Families, Many from 
Guatemala, Arrive in Nogales Seeking US Asylum, Ariz. Daily Star 
(Aug. 2, 2018), https://tucson.com/news/local/dozens-of-families-many-from-guatemala-arrive-in-nogales-seeking/article_4dd45e2f-0b19-5b7b-880e-74a82e3515ea.html; Ariel G. Ruiz Soto, Record-Breaking 
Migrant Encounters at the U.S.-Mexico Border Overlook the Bigger 
Story, Migration Pol'y Inst. (Oct. 2022), https://www.migrationpolicy.org/news/2022-record-migrant-encounters-us-mexico-border.
---------------------------------------------------------------------------

    With regard to the location of scheduled appointments, the CBP One 
app does not arbitrarily designate the location for appointments. The 
location is selected by the user, and the location can be changed by 
the user every time the user requests an appointment. The Departments 
continue to believe that the use of CBP One to schedule appointments 
facilitates the safe and orderly entry of noncitizens at POEs, 
including migrants who are already waiting in Mexico to enter the 
United States. In particular, the use of the app enables migrants to 
schedule their arrival at a pre-determined date and time, providing 
migrants with certainty about the date of their entry. Migrants may 
then wait in whatever location they deem best before approaching the 
border for their appointment. To this end, as of August 23, 2024, the 
CBP One app allows non-Mexican nationals to request and schedule an 
appointment from the southern Mexican states of Tabasco and Chiapas in 
addition to their existing ability to request and schedule appointments 
from Northern and Central Mexico.\244\ Mexican nationals may request 
and schedule an appointment from anywhere in Mexico.\245\ CBP continues 
to encourage migrants to make appointments at POEs close to where they 
may be geographically located in Mexico or seek to enter the United 
States.
---------------------------------------------------------------------------

    \244\ See CBP, CBP One<SUP>TM</SUP> Mobile Application (last 
modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
    \245\ See id.
---------------------------------------------------------------------------

    With regard to claims regarding the actions of government 
authorities in Mexico, the Departments note that they do not control 
the actions or decisions of the Mexican government or Mexico's 
implementation of its own laws.
iii. Availability of and Access to CBP One Appointments and Concerns 
About Discrimination
    Comment: Several commenters raised concerns about unequal access to 
POEs and asylum resulting from barriers to using the CBP One app, such 
as language, disability, resource, and other access issues that 
disparately impact and discriminate against migrants. A commenter 
acknowledged that CBP One may allow for certain positive gains in 
receiving and processing migrants, and also expressed concern that the 
application is wielded to penalize those with possible protection needs 
who cannot access it or obtain an appointment. One commenter called the 
CBP One app ``inherently discriminatory,'' and another commenter 
articulated that the CBP One app has ``pervasive'' accessibility 
issues. A commenter cited a 2024 Amnesty International report,\246\ 
where that organization called on the United States to ``stop the 
mandatory use of the CBP One application'' due to concerns over 
language access, technological barriers, and privacy and surveillance.
---------------------------------------------------------------------------

    \246\ Amnesty Int'l, CBP One Mobile Application Violates the 
Rights of People Seeking Asylum in the United States (May 9, 2024), 
https://www.amnesty.org/en/latest/news/2024/05/cbp-one-mobile-application-violates-the-rights-of-people-seeking-asylum-in-the-united-states/.
---------------------------------------------------------------------------

    In the same vein, numerous commenters raised concerns related to 
the accessibility of the app for those lacking the required technology. 
Specifically, commenters expressed concern that scheduling an 
appointment via CBP One is not a viable option for those who lack 
access to reliable internet, electricity, or a smartphone. Some 
commenters provided examples that migrants have reported that their 
phones have been stolen by Mexican authorities or cartels, or lost or 
damaged during their travels. A commenter stated that in encampments 
with limited access to electricity, migrants are charged high prices 
for access to an outlet to charge their phones. Another commenter 
expressed that the IFR places people who do not have access to 
technology in the prejudicial position of having to meet a higher 
standard of proof to receive a positive credible fear

[[Page 81219]]

determination, in violation of U.S. asylum law. A commenter remarked 
that in perpetuating the ``division'' between ``classes of people 
seeking asylum''--``those who have a smartphone and access to the 
internet and are technologically literate'' and ``those who do not have 
these required items, skills or abilities''--the IFR fails to apply 
protections equally under U.S. and international law.
    Many commenters also discussed limited language accessibility for 
the CBP One app, stating that the app is only available in Spanish, 
English, and Haitian Creole, and expressed that conditioning access to 
asylum on the use of a smartphone app that is only available in three 
languages denies equal access to asylum to those in need of protection 
who are unable to use the app. Commenters expressed concerns about the 
fact that different stages for securing a CBP One appointment are 
available in different sets of languages (e.g., Login.gov, the initial 
app registration page, and app form responses), as this results in 
noncitizens, even those who are literate in Spanish and Haitian Creole, 
requiring assistance with completing the CBP One app form. The 
commenter further remarked that the system is particularly difficult 
for vulnerable populations to navigate as a result of challenges with 
finding adequate translation services, reasoning, for example, that it 
can take up to a week to find interpretation for Indigenous languages.
    Several commenters additionally raised concerns about access to the 
app among those who are illiterate, have disabilities, or have limited 
language and digital literacy. In particular, commenters expressed that 
the IFR assumes technological literacy in the use of smartphone apps, 
such as the ability to access an email account, check the account on an 
ongoing basis, upload a video, and enable Global Positioning System/
geolocators with many people requiring assistance to undertake these 
steps. A commenter provided an account of their experiences with 
individuals in Ciudad Juarez who struggle to navigate the app despite 
knowing how to read in Spanish and Haitian Creole, and the inability of 
legal service providers to provide logistical support to all the 
individuals with potential asylum claims who lack the digital literacy 
to navigate the mobile app.
    Commenters further remarked on technological issues surrounding the 
app. Commenters expressed concerns that CBP One remains inaccessible to 
many due to facial recognition technology errors, which commenters 
stated are frequent for migrants with darker skin tones. Commenters 
stated that the app cannot read the faces of Black, Brown, Asian, and 
Indigenous people seeking asylum, and Haitians and Africans are 
particularly likely to experience ``algorithm bias'' while using the 
CBP One app which would prevent large classes of individuals from using 
the app to secure an appointment, and, therefore, from seeking asylum, 
perpetuating racism in the U.S. immigration system.
    Commenters also noted additional technology concerns, such as 
issues with error messages, account access, and deactivated accounts. 
One commenter listed various reported issues with the CBP One app, such 
as difficulty uploading files, error messages only provided in English, 
saturated bandwidth resulting in delays, appointments being rejected if 
GPS is not activated, and phones unable to take video or photos of 
sufficient quality to be recognized by the app. Another commenter 
provided various anecdotal examples of individuals who were unable to 
access the CBP One app under the Circumvention of Lawful Pathways rule, 
and who the commenter said would similarly be harmed under the IFR, 
while another commenter added that complications with the app forced 
nongovernmental organizations to spend resources helping people use the 
app rather than assisting noncitizens with credible fear interviews, 
reviews of negative determinations, and representation in immigration 
court. A commenter also stated that ``[t]here is a thriving black 
market for appointments available only to the wealthiest refugees.''
    Separately, while some commenters expressed support for the 
``expansion of mechanisms for [CBP One] appointments,'' commenters also 
stated that these expansions are insufficient to counteract 
noncitizens' unawareness of the CBP One application and the inability 
to obtain appointments.
    Lastly, a commenter asserted that the use of CBP One results in 
family separation due to different appointment dates. Furthermore, a 
commenter expressed additional concern that families with a CBP One 
appointment are not always guaranteed the ability to cross the border, 
citing examples of families who were turned away despite arriving on 
time for a valid appointment.
    Response: The Departments disagree that the CBP One app is a 
barrier to asylum. Rather, it is a tool that DHS has established to 
process the flow of noncitizens seeking to enter the United States in a 
more orderly and efficient fashion. CBP One is also a free app, and 
noncitizens are not required to pay to register or schedule an 
appointment.
    The Departments acknowledge that not all migrants may have access 
to a smartphone or be able to easily use the CBP One app, and that lack 
of or limited smartphone access or ability to use a smartphone (due to 
lack of digital literacy, disability, or other reasons) may limit a 
migrant's ability to use the CBP One app to schedule an appointment. 
However, individuals who do not have a smartphone or who have other 
phone-related issues can seek assistance, including sharing phones, or 
translation or technical assistance, from trusted partners, if needed. 
In addition, as noted above, individuals may utilize shared or borrowed 
devices to register for the CBP One app and to schedule an appointment. 
CBP conducts extensive engagement with non-governmental organizations 
(``NGOs'') and stakeholders, and has received feedback and information 
about the challenges associated with the use of the CBP One app. 
Throughout these engagements, access to smartphones has been raised, 
although not as a significant concern for most individuals. CBP is 
aware that NGOs have discussed providing assistance with completing 
individuals' CBP One registrations and offering continued assistance 
with requesting appointments. CBP also notes that individuals seeking 
to create a CBP One registration can do so from anywhere. To create a 
registration, users are not required to enable location services, 
although they are required to enable location services in order to 
request and schedule an appointment.

[[Page 81220]]

    With regard to internet access, the Departments acknowledge there 
can be connectivity gaps, electrical outages, and unreliable wireless 
internet access in northern Mexico. However, CBP made significant 
updates to the appointment scheduling process in 2023, including 
transitioning CBP One scheduling to a daily appointment allocation 
process to allow noncitizens additional time to complete the process. 
Under this system, users must ``ask for an appointment'' each day, by 
selecting the relevant registration and submitting a request for that 
registration.\247\ If a noncitizen receives an appointment that day, 
they are notified in multiple ways, and have up to 23 hours to confirm 
that appointment.\248\ If a noncitizen does not receive an appointment, 
they must ``request an appointment'' the following day, again by 
selecting the relevant registration and requesting that registration. 
Individuals are not required to use the same mobile phone or device to 
request an appointment each day, and, as noted above, may use a shared 
or borrowed device to request and schedule the appointment. In 
addition, in July 2024, CBP updated the appointment allocator to 
increase the percentage of appointments allocated to users who had been 
waiting for longer periods of time, based on the date on which their 
registration was created.
---------------------------------------------------------------------------

    \247\ See CBP, CBP One<SUP>TM</SUP> Mobile Application, 
Frequently Asked Questions--English (last modified Sept. 19, 2024), 
https://www.cbp.gov/about/mobile-apps-directory/cbpone.
    \248\ See CBP, CBP One<SUP>TM</SUP> Application Update 
Announcement--English (Mar. 1, 2024), https://www.cbp.gov/document/guidance/cbp-one-application-update-announcement-english.
---------------------------------------------------------------------------

    CBP also continually takes steps to provide access to the app for 
individuals in different languages. The app was originally available in 
Spanish and English. Haitian Creole was added in February 2023 in 
response to feedback from external stakeholders. Additionally, after 
the user makes a language preference, error messages are available in 
the selected language (English, Spanish, or Haitian Creole). While the 
app remains available in Spanish, English, and Haitian Creole, quick 
reference guides are now available in many languages (including 
Russian, French, Portuguese, Arabic, Dari, Pashto, Punjabi, and 
Chinese). According to the UNHCR, of the top 5 nationalities of 
displaced individuals in Mexico, all are from Spanish-speaking 
countries and Haiti.\249\ Between May 11, 2023 (when the Title 42 
public health Order terminated) and September 11, 2024, USBP data show 
that over 88 percent of noncitizens apprehended between POEs on the SWB 
were recorded as speaking Spanish or English. The next most common 
languages were Mandarin, representing just over 2 percent of 
apprehensions, followed by Portuguese and French, which each represent 
less than 2 percent of noncitizens apprehended.\250\ Finally, a CBP 
analysis conducted in September 2024 showed that, of all of the CBP One 
appointment requests during the first week of September 2024, 
approximately 90 percent were made by individuals from Spanish-speaking 
countries, with the next highest percentage, 5 percent, made by 
Haitians, and the remainder by other nationalities. The fact that 
Haitian nationals represent a relatively large proportion of the 
displaced persons in Mexico generally, are more likely to be 
encountered at POEs, and use the CBP One app further supports the 
prioritization of Haitian Creole and Spanish translations in the app. 
In addition, based on NGO feedback, CBP will be adding a French 
translation to the app. CBP has also been made aware of concerns with 
regard to the accuracy of the app's Haitian Creole translation and is 
currently taking steps to improve its accuracy.
---------------------------------------------------------------------------

    \249\ See United Nations High Commissioner for Refugees 
(``UNHCR''), Country Operations: Mexico, Population by Origin, 
https://reporting.unhcr.org/operational/operations/mexico# (last 
visited Sept. 19, 2024). For purposes of this analysis, the 
Departments are excluding the nationalities grouped as ``various,'' 
given a lack of information on what such category includes.
    \250\ Due to the way that CBP's OFO records and documents 
language services, data for languages used by those encountered at 
POEs are not readily available. Although there is a high volume of 
displaced Haitian nationals in Mexico, CBP's experience is that, 
particularly in recent years, Haitian nationals have been much more 
likely to be encountered at POEs than between POEs. For instance, in 
FY 2023, more than 75,000 Haitian nationals were encountered at SWB 
POEs, compared with just over 1,000 between POEs. See OHSS analysis 
of July 2024 Persist Dataset (Haitian Encounters tab).
---------------------------------------------------------------------------

    CBP acknowledges that individuals who do not speak Spanish, 
English, or Haitian Creole, including those who speak Portuguese or 
Mandarin, may have more difficulty accessing the app, but has 
determined that it is appropriate to prioritize translation services in 
the app to those languages spoken by the vast majority of users of the 
app and noncitizens in the region. And CBP believes that its efforts to 
make the app accessible in other ways, such as through the quick 
reference guides, are working. CBP has seen a significant number of 
individuals who do not speak Spanish, English, or Haitian Creole 
requesting appointments, suggesting that the quick reference guides, as 
well as other information about CBP One available on CBP's 
website,\251\ are working to provide accessibility to the app even for 
those who do not speak one of those languages. With regard to concerns 
about different stages of the CBP One appointment process being in 
different languages, CBP does not exercise control over Login.gov, 
which is used to register for an appointment, as it is operated by the 
General Services Administration.\252\ Login.gov is available in several 
languages, including English, Spanish, and French. And while Login.gov 
is not available in Haitian Creole, CBP analysis showed that, as noted 
above, Haitian nationals continue to be the second-highest population 
of noncitizens requesting CBP One appointments, indicating that 
Login.gov's languages are not posing a substantial limitation for those 
users. Moreover, the CBP One quick reference guides include a 
description of the Login.gov steps in the process. The Departments also 
appreciate the concerns related to the information required to access 
or use the CBP One app. The Departments note that users of the app are 
not required to upload any documents in order to use the app. Users are 
required to submit a photograph, and may, although are not required to, 
upload document information, such as scanning their passport 
information. With regard to concerns raised by commenters relating to 
facial recognition and access to the app by individuals with darker 
skin tones, CBP and the third party responsible for liveness detection 
took steps in 2023 to improve the liveness capability of the 
application and increase bandwidth. Since that time, CBP has data 
showing that the app successfully matches liveness in 80-90 percent of 
attempts, with the difference in performance across ethnicities on the 
order of tenths of a percent. If an individual initially is not able to 
successfully match to their live photo, they are not prohibited from 
trying again, and they may seek an extension to continue to try to 
complete liveness. Individuals who continue to fail liveness are able 
to reach out to CBP either directly or, if appropriate, through an NGO 
or other external entity. CBP notes that it does not collect data on 
race or skin complexion.
---------------------------------------------------------------------------

    \251\ See CBP, CBP One<SUP>TM</SUP> Mobile Application (last 
modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
    \252\ See U.S. General Servs. Admin., Login.gov, https://login.gov/ (last visited Aug. 10, 2024).
---------------------------------------------------------------------------

    CBP engages frequently with stakeholders to determine further 
updates and changes in the app that improve the users' experience and

[[Page 81221]]

enhance access to its features. For example, because of NGO feedback, 
height and weight were made optional fields and additional response 
options were added such as ``I don't have one'' for a foreign address 
and ``Unknown'' for parental information. CBP also acknowledges that 
reading comprehension and disability may present challenges for some 
users among this user population. CBP has improved the app's text for 
users with low literacy and will continue to make improvements to the 
app for this population. The app has also undergone a compliance review 
pursuant to section 508 of the Rehabilitation Act regarding its 
accessibility to people with disabilities, with a final certification 
expected by the end of November 2024.
    Regarding concerns raised by NGOs regarding the resources expended 
to address questions from migrants about the app and its impacts, the 
Departments are not able to comment on how such entities determine the 
use of their own resources. With regard to concerns regarding a ``black 
market'' for appointments, CBP has advised noncitizens and the general 
public that appointments that purport to be ``for sale'' are 
fraudulent, and migrants should not pay for such appointments.\253\
---------------------------------------------------------------------------

    \253\ See CBP, CBP One<SUP>TM</SUP> Mobile Application, 
Frequently Asked Questions--English, CBP One<SUP>TM</SUP> Mobile 
Application, ``What if someone asks me to pay for an appointment?'' 
(last modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
---------------------------------------------------------------------------

    With regard to the commenters' concerns related to whether 
noncitizens have sufficient awareness of the availability of the CBP 
One app and this rule, the Departments believe that they have provided 
sufficient notice to the public. The Departments note the use of, and 
benefits of, the CBP One app have been broadly publicized. Indeed, the 
CBP One app is widely used, as evidenced by the number of requests CBP 
receives each day for appointments. For example, in July 2024, CBP 
received an average of 282,824 CBP One appointment requests per day. 
Demand for CBP One appointments has outpaced supply, which has resulted 
in average wait times increasing since June 2023. CBP continues to 
regularly announce updates and improvements made to the app to the 
public. In particular, CBP regularly announces changes and updates to 
the app on its public website at https://www.cbp.gov/about/mobile-apps-directory/cbpone. This website also contains a number of detailed 
questions and answers regarding the use of the app. Additionally, DHS 
has published a Privacy Impact Analysis (PIA) for CBP One, and 
subsequent updates to the original CBP One PIA to address privacy risks 
in the deployment and use of the CBP One app.\254\ Moreover, the 
Departments' publication of the Circumvention of Lawful Pathways rule, 
the IFR, and this rule have provided (and in the case of this rule, 
will provide) further notice to the public and to noncitizens of the 
pathways available to them and the potential consequences of not 
availing themselves of such pathways. The Departments believe that such 
efforts provide sufficient information for noncitizens seeking to 
travel to the United States.
---------------------------------------------------------------------------

    \254\ See DHS, DHS/CBP/PIA-068, Privacy Impact Assessment for 
CBP One \TM\ Mobile Application (2021 and subsequent updates), 
https://www.dhs.gov/sites/default/files/2023-05/privacy-pia-cbp068-cbpmobileapplication-may2023.pdf; DHS, DHS/CBP/PIA-068(a), Privacy 
Impact Assessment [Update] for CBP One \TM\ Mobile Application 
(2024), https://www.dhs.gov/sites/default/files/2024-07/24_0725_priv_pia-cbp-068%28a%29-cbpone-update.pdf; see also DHS, 
DHS/CBP/PIA-076, Privacy Impact Assessment for the Collection of 
Advance Information from Certain Undocumented Individuals on the 
Land Border (2023), https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp076-advance-collection-for-undocumented-individuals-jan2023_0.pdf; DHS, DHS/CBP/PIA-076(a), Privacy Impact Assessment 
Update for the Collection of Advance Information from Certain 
Undocumented Individuals on the Land Border: Post Title 42 (2023), 
https://www.dhs.gov/sites/default/files/2023-12/23_1019_priv_pia-cbp-076%28a%29-advance-collection-appendix-update.pdf.
---------------------------------------------------------------------------

    With respect to comments suggesting that families are processed 
separately or have been turned away, the Departments note that all 
individuals--including members of families--are processed pursuant to 
existing CBP policies and practices. Family members who register 
together on CBP One using a single registration number to schedule an 
appointment for their whole family are given the same appointment date 
and time. So long as they arrive as a family for their appointment at 
that date and time, they will be processed at that appointment time.
b. Regulatory Exception--Exceptionally Compelling Circumstances
    Comment: Commenters raised concerns regarding the preponderance of 
the evidence standard for establishing exceptionally compelling 
circumstances under the IFR. Commenters argued that applying a 
limitation on asylum eligibility during credible fear interviews, and 
then requiring noncitizens to demonstrate exceptionally compelling 
circumstances by a preponderance of the evidence in order to overcome 
the limitation on asylum eligibility, is inconsistent with the INA and 
congressional intent. Rather, commenters stated that Congress enacted a 
``significant possibility'' standard for the credible fear interview in 
order to safeguard a noncitizen's opportunity to present potentially 
viable asylum claims in full proceedings and to prevent noncitizens 
from being returned to persecution or torture.
    Relatedly, commenters stated that noncitizens should not have to 
demonstrate exceptionally compelling circumstances unrelated to their 
asylum claim by a preponderance of the evidence in order to have their 
asylum claims adjudicated. Some commenters believed that the 
preponderance of the evidence standard was too onerous for noncitizens 
to meet during the credible fear interview, even if the noncitizen had 
experienced a situation or event prior to entry that should otherwise 
qualify as an exceptionally compelling circumstance.
    Lastly, at least one commenter implied that AOs conducting credible 
fear interviews did not have adequate training and were not equipped to 
conduct the analyses required by the IFR, including applying the 
preponderance of the evidence standard to determine whether a 
noncitizen is subject to the limitation on asylum eligibility.
    Response: Many of commenters' concerns are based on an incorrect 
premise. The Departments recognize that the ``significant possibility'' 
standard is established by statute, see INA 235(b)(1)(B)(v), 8 U.S.C. 
1225(b)(1)(B)(v), and the Departments lack the authority to--and have 
not sought to--alter this statutory standard through rulemaking. By 
statute, to determine whether a noncitizen has a ``credible fear,'' an 
AO must assess whether there is a ``significant possibility . . . that 
the alien could establish eligibility for asylum.'' INA 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v). Thus, during credible fear 
proceedings, the overall standard of proof for establishing 
exceptionally compelling circumstances to overcome the limitation on 
asylum eligibility remains the ``significant possibility'' standard, 
which must be applied in conjunction with the standard of proof 
required for the ultimate determination (i.e., preponderance of the 
evidence that the exception applies). See 89 FR at 48739. Accordingly, 
at the credible fear interview, the AOs assess whether there is a 
``significant possibility'' that the noncitizen would be able to show 
at a future merits adjudication by a preponderance of the evidence that 
the limitation does not apply or that the noncitizen satisfies the 
rule's exception.

[[Page 81222]]

Likewise, during credible fear reviews, IJs will apply the 
``significant possibility'' standard to determine whether a noncitizen 
would ultimately be able to demonstrate by a preponderance of the 
evidence that the limitation on asylum eligibility does not apply or 
that the noncitizen satisfies the rule's exception.
    To the extent commenters voiced general opposition to requiring a 
noncitizen to demonstrate exceptionally compelling circumstances by a 
preponderance of the evidence so as not to be subject to the rule's 
limitation on asylum eligibility, the Departments note that this 
standard is the general standard noncitizens must meet to determine 
that a ground of ineligibility does not apply in a merits adjudication. 
See 8 CFR 1240.8(d) (``If the evidence indicates that one or more of 
the grounds for mandatory denial of the application for relief may 
apply, the alien shall have the burden of proving by a preponderance of 
the evidence that such grounds do not apply.''). Additionally, this 
burden for establishing exceptionally compelling circumstances was 
codified by the Circumvention of Lawful Pathways rule, which has been 
in effect since May 11, 2023. 88 FR at 31450-51 (codified at 8 CFR 
208.33(a)(3), 1208.33(a)(3)). The Departments believe that maintaining 
consistency in the preponderance of the evidence standard between these 
two related rules promotes consistent adjudications when adjudicators 
must determine whether a noncitizen has demonstrated exceptionally 
compelling circumstances. In fact, to promote such consistency, the 
rule provides that if a noncitizen demonstrates an exceptionally 
compelling circumstance for purposes of this rule, then the noncitizen 
has necessarily demonstrated an exceptionally compelling circumstance 
for purposes of the Circumvention of Lawful Pathways rule, and vice 
versa, further underscoring the importance of maintaining a consistent 
analytical framework between the two rules. See 89 FR at 48754-55 
(explaining that the IFR's exception to the limitation on asylum 
eligibility mirrors the Circumvention of Lawful Pathways rule's 
rebuttal grounds to simplify administration of each while both rules 
are in effect).
    Further, contrary to commenter concerns, the preponderance of the 
evidence standard is not onerous or unduly burdensome such that a 
noncitizen would be unable to demonstrate exceptionally compelling 
circumstances. To the extent that commenters expressed concern with the 
preponderance of the evidence standard during credible fear 
proceedings, the Departments again clarify that the applicable standard 
during credible fear proceedings is the ``significant possibility'' 
standard, INA 235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v), and AOs will 
assess whether there is a significant possibility that the noncitizen 
would be able to show at a future merits adjudication by a 
preponderance of the evidence that the limitation does not apply or 
that the noncitizen meets the ``exceptionally compelling 
circumstances'' exception. Similar to the Circumvention of Lawful 
Pathways rule's rebuttal grounds, see 88 FR at 31380, the Departments 
believe that there should generally be sufficient evidence available at 
the time of the credible fear interview for an AO to evaluate whether 
there is a significant possibility that the noncitizen would be able to 
establish exceptionally compelling circumstances by a preponderance of 
the evidence. Notably, the credible fear screening process involves 
eliciting testimony from noncitizens seeking protection, and the rule 
does not require noncitizens to provide any specific form of evidence, 
such as written statements or other documentation. See 89 FR at 48746 & 
n.239.
    Indeed, DHS data show that the standard is not unduly challenging 
to meet at the credible fear stage. Since the IFR went into effect 
through August 31, 2024, USCIS determined that the limitation on asylum 
eligibility did not apply in over 2,200 cases (approximately 11 percent 
of credible fear interviews completed under the IFR during that period) 
because the noncitizen was able to demonstrate exceptionally compelling 
circumstances under the credible fear screening standard.\255\ The 
Departments believe that these data show that the exception is both 
meaningful and appropriately tailored to ensure that, during emergency 
border circumstances, only those with a time-sensitive imperative are 
able to avoid the rule's limitation on asylum eligibility.
---------------------------------------------------------------------------

    \255\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (Fear Screening--STB tab).
---------------------------------------------------------------------------

    Regarding the preponderance of the evidence standard during a full 
merits adjudication, the Departments similarly do not believe that it 
imposes an onerous or unduly burdensome evidentiary standard. The INA 
explicitly provides that during full merits adjudication of an asylum 
claim ``testimony of the applicant may be sufficient to sustain the 
applicant's burden without corroboration'' in certain circumstances. 
INA 208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). Thus, as the 
Departments have explained, the preponderance of the evidence standard 
may be met through credible testimony alone. See 88 FR at 31395. For 
example, if a noncitizen or a member of the noncitizen's family as 
described in 8 CFR 208.30(c) with whom they were traveling faced an 
acute medical emergency, an imminent and extreme threat to life or 
safety, or satisfied the definition of a victim of a severe form of 
trafficking in persons, or faced other exceptionally compelling 
circumstances, then the noncitizen could present testimony of those 
facts and circumstances.
    Lastly, to the extent commenters expressed skepticism about an AO 
or IJ's ability to properly apply the screening standard during a 
credible fear interview, the Departments note that both AOs and IJs 
receive extensive training in substantive law and procedure, see 88 FR 
at 31395 & nn.211-213, and the Departments are confident that AOs and 
IJs have the requisite knowledge, skills, and experience to properly 
apply the framework of this rule, as they have been doing for months.
    Comment: Some commenters recommended that the Departments rescind 
the ``exceptionally compelling circumstances'' exception to the 
limitation on asylum eligibility, stating that the exception codifies 
``loopholes'' that are easy for noncitizens to exploit and undermines 
the Departments' goal of discouraging irregular migration across the 
SWB.
    Response: The Departments decline to rescind the ``exceptionally 
compelling circumstances'' exceptions at 8 CFR 208.35(a)(2)(i) and 
1208.35(a)(2)(i). As the Departments explained in the IFR, maintaining 
an exception to the limitation on asylum eligibility for exceptionally 
compelling circumstances is intended to mitigate potential adverse 
impacts of the rule on certain particularly vulnerable individuals and 
family members as described in 8 CFR 208.30(c) with whom they are 
traveling, without undermining the Departments' stated policy 
objectives of disincentivizing irregular migration during emergency 
border circumstances. 89 FR at 48754. The Departments believe the 
nature of the exceptionally compelling circumstances--such as facing an 
acute medical emergency, facing an imminent and extreme threat to life 
or safety, or meeting the definition of a victim of a severe form of 
trafficking in persons--appropriately balances the Departments' stated 
policy

[[Page 81223]]

objectives and does not create a ``loophole'' as commenters suggest.
    The Departments are also confident that AOs and IJs will 
appropriately assess a noncitizen's testimony and any evidence 
presented to determine whether a noncitizen has established that the 
rule's exception to the limitation on asylum eligibility applies. 
Indeed, DHS and EOIR personnel have the training and experience 
necessary to determine whether the exception applies, including several 
months of experience from implementing the IFR and other rules. For 
example, AOs were provided specific training for the implementation of 
the Circumvention of Lawful Pathways rule to elicit and analyze 
testimony related to whether a noncitizen can establish an exception or 
rebut the presumption of asylum ineligibility. See 88 FR at 31330. 
Additionally, before any AO can interview a noncitizen where the IFR's 
limitation on asylum eligibility applies, or any supervisory AO can 
review such a case, they must receive specific training on the IFR, 
including on applying the IFR's limitation on asylum eligibility and 
the ``exceptionally compelling circumstances'' exception.
    Comment: Commenters stated that the enumerated per se exceptionally 
compelling circumstances in 8 CFR 208.35(a)(2) and 1208.35(a)(2) are, 
on the whole, too limited in number and narrow in scope, and are framed 
in a restrictive manner with a high burden of proof that commenters 
asserted many noncitizens will be unable to meet. According to 
commenters, because the exception is so difficult to establish, the 
vast majority of noncitizens who enter between POEs will be ineligible 
for asylum. Commenters also alleged that noncitizens may not have 
access to or be aware of what information or evidence is necessary to 
sufficiently demonstrate exceptionally compelling circumstances, 
particularly as they may not be aware of the rule and its evidentiary 
requirements until they are placed in proceedings. Similarly, 
commenters expressed concern about the evidentiary burden noncitizens 
would face in trying to establish that exceptionally compelling 
circumstances existed at the time of entry when their case may not be 
adjudicated until years after the date of entry due to existing 
backlogs, and when evidence and witnesses may be lost over time. 
Commenters offered, as an example, the difficulty that noncitizens 
would face in demonstrating that they or a family member with whom they 
traveled experienced an acute medical emergency, in the absence of 
concurrently issued medical documents.
    Commenters stated that it will be difficult for AOs to evaluate 
whether a noncitizen satisfies an exception at the credible fear stage 
because it is a fact-intensive inquiry and will require significant 
development of the record. Commenters also stated that there is 
insufficient guidance about how, in practice, AOs are supposed to make 
a finding regarding exceptionally compelling circumstances. Further, 
commenters expressed concern that AOs are not required to elicit 
potentially relevant facts about the rule's exceptions to ensure that 
noncitizens are not improperly subject to the IFR's limitation on 
asylum eligibility and recommended that the Departments adopt a 
screening framework in which AOs have a shared burden to elicit all 
information relevant to asylum eligibility, preferably in a non-
adversarial manner.
    Response: The Departments believe that the rule's exception to the 
limitation on asylum eligibility for exceptionally compelling 
circumstances, including the enumerated per se circumstances, are 
appropriate in scope and detail, and as such, the Departments decline 
to modify those provisions. Indeed, during emergency border 
circumstances, limiting the ``exceptionally compelling circumstances'' 
exception to those who are unable to wait for an appointment due to an 
acute medical emergency or an imminent and extreme threat to life or 
safety is important to deter irregular migration and provide for 
efficient border processing during a period of high encounters.\256\ 
See 89 FR at 48732 n.171. As discussed above in this section of the 
preamble, the data reflect that the ``exceptionally compelling 
circumstances'' exception is achieving this balance; USCIS determined 
that the exception had been met in approximately 11 percent of credible 
fear interviews completed between the IFR's effective date and August 
31, 2024.\257\
---------------------------------------------------------------------------

    \256\ Separately, noncitizens facing an urgent humanitarian 
situation may not be subject to the limitation at all if, under the 
Proclamation, a noncitizen is permitted to enter by the Secretary of 
Homeland Security, acting through a CBP immigration officer, based 
on the totality of the circumstances, including consideration of 
urgent humanitarian interests at the time of the entry or encounter. 
See 8 CFR 208.35(a)(1), 1208.35(a)(1); Section 3(b) of the 
Proclamation.
    \257\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (Fear Screening--STB tab).
---------------------------------------------------------------------------

    The Departments stress, however, that exceptionally compelling 
circumstances are not limited to the enumerated examples. Rather, 
similar to the rebuttal grounds adopted in the Circumvention of Lawful 
Pathways rule, the examples are a non-exhaustive list intended to 
preserve AO and IJ flexibility and permit consideration of all facts 
giving rise to potential exceptionally compelling circumstances. 89 FR 
at 48733; 88 FR at 31394. Additionally, the Departments continue to 
prioritize family unity by extending these exceptions to qualifying 
family members with whom the noncitizen is traveling. See 8 CFR 
208.35(a)(2)(i), 1208.35(a)(2)(i).
    Regarding concerns that establishing exceptionally compelling 
circumstances is a fact-intensive inquiry that will require significant 
development of the record, and that noncitizens will not have access to 
information and evidence of exceptionally compelling circumstances at 
the time of screening, the Departments note that relevant evidence of 
such circumstances generally relates to the situation immediately prior 
to the noncitizen's entry into the United States, and focuses on 
relevant personal facts and circumstances within the noncitizen's 
knowledge. Accordingly, the Departments expect that any evidence 
necessary for a noncitizen to demonstrate that they have a significant 
possibility of ultimately showing exceptionally compelling 
circumstances should generally be readily available--whether from the 
noncitizen in the form of credible testimony or other evidence or from 
government records relating to the noncitizen's circumstances at the 
time of entry--at the time of the credible fear screening. With respect 
to cases where the existence of exceptionally compelling circumstances 
at the time of entry may be evaluated later in time, the Departments 
similarly note that the rule does not impose any requirement for the 
type of evidence necessary to establish exceptionally compelling 
circumstances, and a noncitizen's testimony alone ``may be sufficient 
to sustain [their] burden without corroboration'' in a full merits 
hearing in certain circumstances. INA 208(b)(1)(B)(ii), 8 U.S.C. 
1158(b)(1)(B)(ii). Regarding commenter concerns that noncitizens would 
have difficulty demonstrating that they faced an acute medical 
emergency at the time of entry without medical documents, the 
Departments expect that credible testimony about the medical emergency 
would generally be sufficient at the credible fear stage, and the rule 
does not require any specific type of evidence related to the acute 
medical emergency. See 89 FR at 48746 & n.239 (explaining that credible 
testimony is sufficient in a credible fear screening and that

[[Page 81224]]

corroborating evidence is not required); see also 88 FR at 31392 
(discussing the analogous acute medical emergency rebuttal ground under 
the Circumvention of Lawful Pathways rule).
    Additionally, when conducting credible fear interviews, AOs have an 
obligation to elicit testimony relevant to a noncitizen's claim, which 
will necessarily include any information related to exceptionally 
compelling circumstances.\258\ Moreover, during credible fear reviews 
before IJs, noncitizens have an opportunity to be heard and to be 
questioned by the IJ. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III). During section 240 removal proceedings, IJs 
also must develop the record, which will, as relevant, necessarily 
include facts and testimony pertaining to exceptionally compelling 
circumstances. See INA 240(b)(1), 8 U.S.C. 1229a(b)(1) (``[IJs] shall 
administer oaths, receive evidence, and interrogate, examine, and 
cross-examine the [noncitizen] and any witnesses.''); 8 CFR 1003.10(b) 
(same); see also Quintero v. Garland, 998 F.3d 612, 626 (4th Cir. 
2021).
---------------------------------------------------------------------------

    \258\ See, e.g., USCIS, RAIO Directorate--Officer Training: 
Interviewing--Eliciting Testimony 11 (Apr. 24, 2024) (``In cases 
requiring an interview, although the burden is on the applicant to 
establish eligibility, equally important is your obligation to 
elicit all pertinent information.'').
---------------------------------------------------------------------------

    Finally, the Departments disagree with the assertion that there is 
insufficient guidance regarding making a finding related to 
exceptionally compelling circumstances. The rule clearly sets forth 
both the standard for the ``exceptionally compelling circumstances'' 
exception and the process for evaluating the limitation on asylum 
eligibility during credible fear determinations. See 8 CFR 208.35(a), 
(b), 1208.35(a), (b). Additionally, AOs must receive training on 
application of the limitation on asylum eligibility and the 
``exceptionally compelling circumstances'' exception before any AO can 
interview a noncitizen where the limitation on asylum eligibility 
applies, or any supervisory AO can review such a case. Further, the 
Departments have experience in applying the ``exceptionally compelling 
circumstances'' standard in the context of the Circumvention of Lawful 
Pathways rule. See 89 FR at 48733 (explaining that the exception 
mirrors the rebuttal circumstances adopted in the Circumvention of 
Lawful Pathways rule and is intended to apply to the same 
circumstances); see also 88 FR at 31380, 31390-93 (explaining the 
standard for establishing and procedure for evaluating analogous 
rebuttal grounds under the Circumvention of Lawful Pathways rule). The 
Departments also now have several months of experience implementing the 
IFR, and implementation itself yields valuable information on continued 
operation of its provisions. See supra Section II.A.2.
    Comment: Commenters raised concerns that the ``exceptionally 
compelling circumstances'' exception does not provide adequate 
protection for vulnerable groups. Specifically, commenters alleged that 
the exceptions are insufficient to protect vulnerable groups who face a 
disproportionate risk of harm in Mexico, including LGBTQI+ noncitizens, 
Black and Indigenous noncitizens, women, and children, among others. 
Commenters observed that some such noncitizens, and particularly those 
without access to legal representation, may not understand the 
intricacies of the IFR or the requirements to establish an exception. 
Further, commenters stated that the complicated exceptions will 
contribute to confusion among and disparate treatment of such 
noncitizens, making them vulnerable to smugglers and undermining the 
Departments' goal of orderly processing at the SWB.
    Response: For general discussion regarding concerns related to 
specific vulnerable populations, please see Section III.B.2.a.iii of 
this preamble.
    With regard to the ``exceptionally compelling circumstances'' 
exception and vulnerable populations specifically, the Departments 
believe that the exception provides sufficient protection for such 
populations. The exception focuses on relevant personal facts and 
circumstances within the noncitizen's knowledge relating to potential 
harm they faced immediately preceding their entry into the United 
States. See 89 FR at 48747-48. To determine whether the exception 
applies, the AO questions the noncitizen regarding the circumstances of 
their entry into the United States, which does not require any 
particular legal knowledge by the noncitizen.
    Further, the Departments disagree that the ``exceptionally 
compelling circumstances'' provision will make noncitizens more 
vulnerable to smugglers due to confusion about the rule. As the 
Departments explained in the IFR, 89 FR at 48733, the exception for 
exceptionally compelling circumstances was drafted to mirror the 
rebuttal grounds in the Circumvention of Lawful Pathways rule, which 
the Departments believe will help reduce any confusion among 
noncitizens or adjudicators. Moreover, the Departments believe that, 
overall, this rule is a key measure to combat illegal smuggling 
activity by drastically reducing incentives for noncitizens without a 
lawful basis to remain in the United States to rely on smugglers for 
entry into the United States. See 89 FR at 48714-15 (explaining how the 
rule is necessary to combat illegal smuggling activity), id. at 48766. 
The ``exceptionally compelling circumstances'' exception is an 
important provision of this rule because it appropriately balances the 
essential need to use resources effectively during emergency border 
circumstances with consideration of whether a noncitizen or family 
member with whom they are traveling is specifically vulnerable to 
immediate harm and has entered the United States during emergency 
border circumstances due to serious and urgent needs to do so. See 89 
FR at 48754.
    Comment: Commenters stated that the exception to the IFR was 
subjective, highly discretionary, and insufficient to ensure 
individuals were not refouled. Commenters also expressed concern that 
the enumerated per se exceptionally compelling circumstances require a 
subjective assessment of the degree and temporal nature of the needs 
and threats faced by noncitizens at the time of entry, which commenters 
allege is inconsistent with the right to seek asylum and the principle 
of non-refoulement.
    Response: The Departments disagree that the ``exceptionally 
compelling circumstances'' exception is overly subjective or affords 
too much discretion to AOs and IJs, as the Departments are confident in 
AOs' and IJs' ability to fairly and accurately apply the exception. AOs 
and IJs have significant training and experience in eliciting testimony 
and applying legal standards in immigration proceedings. See, e.g., 89 
FR at 48747 (noting that AOs and IJs have the training and experience 
necessary to elicit information required to determine whether a case 
meets the necessary requirements); 8 CFR 1003.10(b) (requiring IJs to 
``seek to resolve the questions before them in a timely and impartial 
manner consistent with the [INA] and regulations'').
    Further, to the extent a noncitizen has concerns with an AO's 
determination, all credible fear determinations undergo supervisory 
review to ensure consistency. 8 CFR 208.30(e)(8). Noncitizens may also 
request IJ review of negative credible fear determinations. 8 CFR 
208.35(b)(2)(v). Moreover, if the limitation on asylum eligibility is 
applied to a noncitizen in section 240 removal proceedings, IJ 
determinations are subject to review by the BIA. 8 CFR 1003.1(b)(3).

[[Page 81225]]

    With regard to concerns about potential refoulement, the 
Departments note that, even in those cases where a noncitizen is unable 
to establish exceptionally compelling circumstances and is subject to 
the limitation on asylum eligibility, the noncitizen remains eligible 
to pursue statutory withholding of removal and CAT protection, which 
implement the United States' non-refoulement obligations. See 8 CFR 
208.35(b)(2); 8 CFR 1208.35(b)(2)(iii). For additional discussion 
regarding the United States' non-refoulement obligations, please see 
Sections III.A.1.a and III.A.1.d of this preamble.
    Comment: Commenters noted that the per se exceptionally compelling 
circumstances mirror the rebuttal grounds established in the 
Circumvention of Lawful Pathways rule; some commenters incorporated 
their previous objections to that rule, concerning the per se 
exceptionally compelling circumstances, into comments submitted in 
response to this IFR.
    Response: Commenters correctly assert that the per se exceptionally 
compelling circumstances mirror the rebuttal grounds in the 
Circumvention of Lawful Pathways rule. See 89 FR at 48733. To the 
extent that commenters stated that they were incorporating their 
previous comments submitted in response to the Circumvention of Lawful 
Pathways NPRM, the Departments responded to those comments as part of 
the Circumvention of Lawful Pathways rulemaking, and commenters are 
encouraged to refer to that rule for the Departments' responses. See, 
e.g., 88 FR at 31390-95 (responding to commenter concerns related to 
the grounds for rebutting the presumption of asylum ineligibility under 
the Circumvention of Lawful Pathways rule).
    Comment: Commenters alleged that the ``imminent and extreme threat 
to life and safety'' exception is inadequate and illusory, claiming 
that CBP officers would, in practice, turn away noncitizens who could 
otherwise establish such threats. For example, commenters provided 
anecdotal reports of women being turned away from POEs after CBP 
officers determined that their accounts of being sexually assaulted and 
raped in Mexico did not fall within an exception.
    Commenters also stated that the exception incentivizes noncitizens 
to wait in Mexico until they are subject to harm or violence before 
seeking protection. Further, commenters were concerned that the IFR 
included a per se exception for forward-looking threats, but not for 
being a survivor of ``recent and severe forms of violence.'' Commenters 
stated that such survivors have a significant need for protection to 
mitigate past harm and to prevent further harm.
    Commenters also noted that, in responding to comments about the 
analogous rebuttal ground in the Circumvention of Lawful Pathways rule, 
the Departments explicitly stated that generalized threats of violence, 
membership in a particularly vulnerable group, and dangerous country 
conditions will not rise to the level of an ``imminent and extreme 
threat to life and safety,'' which commenters believed was overly 
limiting.
    Commenters further recommended broadening the per se exceptionally 
compelling circumstances, so that ``acute medical emergencies'' 
includes non-medical and non-life-threatening medical needs; and 
``imminent and extreme threats to life or safety'' includes threats to 
life or safety that may not necessarily be ``imminent'' or ``extreme.'' 
Commenters further stated that the grounds for rebutting the 
presumption of asylum ineligibility contained within the Circumvention 
of Lawful Pathways rule have been interpreted narrowly, resulting in 
noncitizens wrongfully being unable to rebut the presumption, not 
receiving a full adjudication of their claims, and ultimately being 
ordered removed. Commenters also urged the Departments to ensure that 
these per se exceptionally compelling circumstances encompass the 
medical risks and harms reported by asylum seekers while waiting in 
Mexico.
    Response: The Departments decline to amend the list of per se 
exceptionally compelling circumstances established in the rule. The per 
se circumstances contained in the rule--acute medical emergencies, 
imminent and extreme threats to life or safety, or being a victim of 
severe trafficking in persons--are intended to capture noncitizens with 
a time-sensitive imperative for entering the United States to avoid 
immediate, serious harm. See 89 FR at 48732 n.171. Broadening these per 
se circumstances further would undermine the goal of this rule: to 
address the significant strain on the United States' immigration system 
during emergency border circumstances. See 89 FR at 48726-31 (``Need 
for These Measures'').
    Likewise, requiring a situation-specific analysis of potential harm 
to the noncitizen is necessary to limit the ``exceptionally compelling 
circumstances'' exception to only those noncitizens who truly require 
entry to the United States to avoid putting their life or well-being at 
extreme risk. Allowing, for example, concern about generalized violence 
to establish an imminent and extreme threat to life or safety would be 
purely speculative as to an individual noncitizen, and further 
undermine the objectives of the rule. However, in requiring specific 
evidence of potential harm, the Departments note that more generalized 
evidence, such as membership in a particularly vulnerable group, ``may 
be a relevant factor in assessing the extremity and immediacy of the 
threats faced at the time of entry.'' 88 FR at 31393.
    Additionally, the Departments disagree that the parallel rebuttal 
grounds in the Circumvention of Lawful Pathways rule have been 
interpreted too narrowly, and therefore, that the per se exceptions 
should be expanded in this rule. Departmental data show that, during 
the immediate post-pandemic period, over 10 percent of noncitizens 
subject to the Circumvention of Lawful Pathways rule's rebuttable 
presumption of asylum ineligibility were able to rebut the presumption 
during USCIS credible fear interviews.\259\ This indicates that those 
rebuttal grounds were meaningfully available to noncitizens, and the 
Departments note that Departmental data show that the parallel 
exceptions in this rule are being similarly applied. Since the IFR went 
into effect through August 31, 2024, USCIS determined that there was a 
significant possibility the noncitizen could demonstrate an 
``exceptionally compelling circumstances'' exception to the limitation 
on asylum eligibility in over 2,200 cases--approximately 11 percent of 
credible fear interviews completed by USCIS that were subject to the 
IFR during that period.\260\
---------------------------------------------------------------------------

    \259\ See OHSS analysis of June 2024 Enforcement Lifecycle data 
(Fear Screening--CLP tab).
    \260\ See OHHS analysis of data downloaded from UIP on September 
3, 2024 (Fear Screening--STB tab).
---------------------------------------------------------------------------

    With regard to consideration of past harm, the Departments note 
that, to the extent a noncitizen suffered harm immediately preceding 
their entry into the United States, such harm can be relevant to 
whether the noncitizen faces further imminent and extreme harm or 
threats to their life or safety, and adjudicators could consider such 
immediate, past harm as relevant to making an ``exceptionally 
compelling circumstances'' determination.
    The Departments also disagree with commenters' assertions that the 
imminent and extreme threat to life or safety exception incentivizes 
noncitizens to wait in another country until they are harmed to then 
seek an

[[Page 81226]]

exception under the rule. To the extent that waiting in another country 
could increase the risk of potential harm, the Departments note that 
noncitizens need not have actually been harmed or show that the feared 
harm was certain to occur to demonstrate exceptionally compelling 
circumstances. Rather, the rule states that those who demonstrate that 
they or a member of their family as defined in 8 CFR 208.30(c) with 
whom they are traveling ``[f]aced an imminent and extreme threat to 
life and safety, such as an imminent threat of rape, kidnapping, 
torture, or murder'' shall have demonstrated exceptionally compelling 
circumstances. 8 CFR 208.35(a)(2)(i)(B), (ii), 1208.35(a)(2)(i)(B), 
(ii). Therefore, this exception is intended to balance the emergency 
border circumstances necessitating implementation of the rule's 
limitation on asylum eligibility with recognition that there may be 
noncitizens with a specific, time-sensitive safety imperative for 
entering the United States during times where DHS's resource capacity 
to process noncitizens at the border is overwhelmed.
    Finally, more generally, the Departments also clarify that CBP 
officers do not apply this rule's ``exceptionally compelling 
circumstances'' exception during initial border encounters, although 
they do implement the Proclamation's suspension and limitation on 
entry. Rather, the exception--and this rule's limitation on asylum 
eligibility more broadly--is applied during credible fear screenings 
before USCIS, once a noncitizen has manifested a fear of return or 
expressed an intention to apply for asylum or other protection and is 
placed in the expedited removal process. See 8 CFR 208.35(b) 
(``Application in credible fear determinations.'').
    Comment: Commenters stated that the enumerated ``exceptionally 
compelling circumstances'' exception for victims of a severe form of 
trafficking in persons is inadequate and that this rule imposes an 
impossible evidentiary hurdle on trafficking survivors. For example, 
commenters said that not all victims of a severe form of trafficking 
have proof of such crimes and, during initial fear screenings, AOs do 
not ask specific questions about trafficking history. Commenters also 
stated that the trafficking exception should be expanded to encompass 
both noncitizens who may be at risk of trafficking and noncitizens at 
risk of or who have experienced trafficking, regardless of the degree 
of severity of the trafficking.
    Response: The Departments disagree that the existing 
``exceptionally compelling circumstances'' exception for trafficking 
victims should be further amended. First, pursuant to section 3(b)(iv) 
of the Proclamation, noncitizens who are determined to be ``a victim of 
a severe form of trafficking in persons'' as defined in 22 U.S.C. 
7102(16) are excepted from the Proclamation's suspension and limitation 
on entry and, therefore, are not subject to the IFR's limitation on 
asylum eligibility. 8 CFR 208.35(a)(1), 1208.35(a)(1) (providing that 
the limitation on asylum eligibility only applies to a noncitizen 
described in 8 CFR 1208.13(g) ``and who is not described in section 
3(b) of the Presidential Proclamation of June 3, 2024''); 89 FR at 
48733 n.172.
    Nonetheless, as explained by the Departments in the IFR, the 
Departments have retained the per se ``exceptionally compelling 
circumstances'' exception for human trafficking victims to avoid 
confusion and to ensure that the exceptions in this rule continue to 
mirror the rebuttal grounds adopted by the Departments in the 
Circumvention of Lawful Pathways rule. 89 FR at 48733 n.172. Under the 
rule's exception for victims of human trafficking, both a noncitizen 
and any family members as defined in 8 CFR 208.30(c) with whom the 
noncitizen is traveling are excepted from the limitation on asylum 
eligibility if, at the time of entry, the noncitizen or family member 
satisfied the definition of ``victim of a severe form of trafficking in 
persons'' provided in 8 CFR 214.201. 8 CFR 208.35(a)(2)(i)(C), 
1208.35(a)(2)(i)(C); 89 FR at 48733.
    The Departments disagree that this rule creates an insurmountable 
evidentiary burden for trafficking survivors. While the Departments 
recognize that victims of trafficking often do not possess written or 
documentary evidence of their trafficking, the rule does not impose any 
requirements about the type of evidence a noncitizen must submit to 
establish exceptionally compelling circumstances. Indeed, during the 
credible fear screening process, AOs or IJs elicit testimony from 
noncitizens, and written statements or other documentation are not 
required. See 89 FR at 48746 n.239.
    Regarding concerns that noncitizens will not be asked specific 
questions about any history involving trafficking, the Departments note 
that those concerns are unfounded because interview guides specifically 
designed for credible fear interviews pursuant to the Circumvention of 
Lawful Pathways rule and the IFR instruct AOs to ask questions related 
to trafficking where they are relevant to the credible fear 
determination, including where either the Circumvention of Lawful 
Pathways rule's presumption of asylum ineligibility or the IFR's 
limitation on asylum eligibility applies. In such cases, AOs are 
instructed to elicit testimony related to potential ``exceptionally 
compelling circumstances'' rebuttal grounds (in the case of the 
Circumvention of Lawful Pathways rule) or the ``exceptionally 
compelling circumstances'' exception (in the case of the IFR), 
including the exceptionally compelling circumstance of the noncitizen 
or an accompanying family member satisfying the definition of a victim 
of severe form of trafficking in persons pursuant to 8 CFR 
208.33(a)(3)(i)(C) and 208.35(a)(2)(i)(C). See 8 CFR 208.30(d). AOs 
receive extensive training in not only substantive law and procedure 
but in identifying and interviewing vulnerable noncitizens, including 
victims of trafficking.\261\ Further, for merits adjudications, AOs and 
IJs receive training \262\ and have experience in evaluating 
credibility and evidence, even in the absence of other documentation, 
and a noncitizen's testimony alone ``may be sufficient to sustain 
[their] burden without corroboration'' in certain circumstances. INA 
208(b)(1)(B)(ii), 8 U.S.C. 1158(b)(1)(B)(ii). The Departments are 
therefore confident in AOs' and IJs' ability to elicit relevant 
information from victims of trafficking and appropriately evaluate 
whether the noncitizen established exceptionally compelling 
circumstances.
---------------------------------------------------------------------------

    \261\ See USCIS, RAIO Directorate--Officer Training: Detecting 
Possible Victims of Trafficking (Apr. 24, 2024)
    \262\ See USCIS, RAIO Directorate--Officer Training: Decision 
Making (Apr. 24, 2024); 8 CFR 1003.0(b)(1)(vii) (EOIR Director's 
authority to ``[p]rovide for comprehensive, continuing training and 
support'' for IJs); 8 CFR 1003.9(b)(1) and (2) (Chief IJ's authority 
to issue ``procedural instructions regarding the implementation of 
new statutory or regulatory authorities'' and ``[p]rovide for 
appropriate training of the [IJs] . . . on the conduct of their 
powers and duties''); EOIR, Legal Education and Research Services 
Division (Jan. 3, 2020), https://www.justice.gov/eoir/legal-education-and-research-services-division (``[LERS] develops and 
coordinates headquarters and nationwide substantive legal training 
and professional development for new and experienced judges, 
attorneys, and others within EOIR who are directly involved in 
EOIR's adjudicative functions. LERS regularly distributes new 
information within EOIR that includes relevant legal developments 
and policy changes from U.S. government entities and international 
organizations.'').
---------------------------------------------------------------------------

    Finally, the Departments believe that, as drafted, both section 
3(b)(iv) of the June 3 Proclamation and the rule itself, which provides 
that being a victim of a

[[Page 81227]]

severe form of trafficking in persons is a per se exceptionally 
compelling circumstance, provide sufficient protections for victims of 
trafficking. The Departments decline to expand this exceptionally 
compelling circumstance to trafficking victims who do not rise to the 
level of being victims of ``severe forms of trafficking in persons.'' 
This is a statutorily defined term \263\ which includes ``sex 
trafficking in which a commercial sex act is induced by force, fraud, 
or coercion, or in which the person induced to perform such act has not 
attained 18 years of age'' and ``the recruitment, harboring, 
transportation, provision, or obtaining of a person for labor or 
services, through the use of force, fraud, or coercion for the purpose 
of subjection to involuntary servitude, peonage, debt bondage, or 
slavery.'' 22 U.S.C. 7102(11). The Departments find that this statutory 
definition sufficiently encompasses noncitizens who have experienced 
exceptionally compelling circumstances that should except them from the 
limitation on asylum eligibility. This definition has long been 
employed in the immigration context, see, e.g., INA 
101(a)(15)(T)(i)(I), 8 U.S.C. 1101(a)(15)(T)(i)(I) (T nonimmigrant 
status for victims of severe forms of trafficking in persons); INA 
212(a)(2)(H), 8 U.S.C. 1182(a)(2)(H) (ground of inadmissibility for 
those who engage in severe forms of trafficking), with which AOs and 
IJs are familiar, and commenters have not offered a persuasive reason 
for deviating from this well-established definition. Exceptionally 
compelling circumstances are intended to be narrow and preserved only 
for those who would generally be subject to the limitation, but present 
with the most urgent and immediate need to enter without a CBP One 
appointment or between POEs during times when the border system is 
overwhelmed. That said, noncitizens who do not satisfy the existing 
exception for trafficking victims (or other exceptionally compelling 
circumstances enumerated in the rule) may still seek to establish 
exceptionally compelling circumstances for another reason, and officers 
will evaluate every case based on its individual facts and 
circumstances.
---------------------------------------------------------------------------

    \263\ The provisions at 8 CFR 208.35(a)(2)(i)(C) and 
1208.35(a)(2)(i)(C) reference the definition of ``victim of a severe 
form of trafficking in persons'' in 8 CFR 214.201, and that 
regulatory provision references relevant statutory definitions, 
including definitions found at 22 U.S.C. 7102. See 8 CFR 214.201.
---------------------------------------------------------------------------

    Comment: Commenters asserted that the IFR did not provide 
sufficient clarity about the procedures for noncitizens to seek an 
exception to the IFR's limitation on asylum eligibility.
    First, commenters stated that access to the IFR's exceptions 
requires physical access to U.S. immigration authorities at POEs but 
alleged that there are many factors that impede such physical access, 
including security agents on the Mexican side of the border restricting 
access to POEs. Commenters asserted that such impediments to physically 
accessing U.S. immigration authorities undermine the IFR's exceptions 
and prevent noncitizens who may satisfy an exception from accessing 
protection. Commenters also stated that it is unclear how the rule and 
Proclamation together impact access to POEs. Accordingly, commenters 
requested that the Departments establish clear, transparent procedures 
to guarantee that noncitizens seeking to establish an exception from 
the limitation on asylum eligibility can physically access U.S. 
immigration officials.
    Response: The Departments believe that the IFR adequately explains 
the exception to the limitation on asylum eligibility for noncitizens 
who establish exceptionally compelling circumstances, including the 
process by which AOs and IJs will evaluate whether a noncitizen has 
satisfied the exception. See 89 FR at 48732-33. Regarding commenters' 
concerns related to noncitizens' ability to physically access U.S. 
immigration authorities, the Departments note that nothing in the IFR 
physically impedes a noncitizen from accessing U.S. immigration 
authorities and that insofar as these comments concern CBP's 
implementation of the Proclamation, they are outside the scope of this 
rulemaking, as are concerns about conduct by individuals outside of the 
United States who are not U.S. immigration authorities--for example, on 
the Mexican side of the border. Cf. 89 FR at 48732 n.169 (explaining 
that ``[w]hen it comes to determining the applicability of the 
Proclamation, CBP immigration officers, who first encounter noncitizens 
when they enter or attempt to enter, must determine whether a 
noncitizen is subject to the Proclamation under section 3(a), including 
whether the noncitizen is excluded from the suspension and limitation 
on entry under section 3(b)'').
    Comment: Commenters recommended that the Departments exclude 
noncitizens who present at a POE from the IFR's limitation on asylum 
eligibility, and instead limit application of any restrictions to those 
who cross irregularly, in order to guarantee access to border 
processing for noncitizens who present at a POE.
    Response: The Departments decline to adopt an exception to the 
limitation on asylum eligibility for all noncitizens who present at a 
POE. As the Departments explained in the IFR, in the absence of 
congressional action, the changes made by this rule are intended to 
improve the Departments' ability to deliver timely decisions and 
consequences to noncitizens who do not have a legal basis to remain in 
the United States, and the Departments expect that the limitation on 
asylum eligibility will encourage noncitizens to present at a POE 
pursuant to an appointment, pursue another lawful pathway, or decline 
to journey to the United States at all. See 89 FR at 48715; id. at 
48730-31. The Departments have determined that excepting all 
noncitizens who present at a POE would undermine these objectives and 
undermine processes designed to manage border inflows at POEs. See, 
e.g., 88 FR at 31318 (noting that the ``ability to schedule a time and 
place to arrive at POEs and the availability of other orderly and 
lawful pathways'' are designed to, among other things, ``protect 
against an unmanageable flow of migrants arriving at the SWB'').
    Comment: Commenters questioned why the IFR's exceptions do not 
fully align with the exceptions available under the Circumvention of 
Lawful Pathways rule. In particular, commenters stated that the IFR 
does not provide an exception for technological failure of the CBP One 
app or for noncitizens who are unable to use the CBP One app due to 
illiteracy, a language barrier, a disability, or an inability to afford 
a smartphone or data plan. Noting ongoing technical and accessibility 
issues with the CBP One app, commenters urged the Departments to adopt 
an exception to the limitation on asylum eligibility for all 
noncitizens--whether they present at a POE or cross between POEs--who: 
(1) are unable to use the CBP One app due to accessibility issues with 
the app itself; (2) are unable to use the CBP One app due to 
illiteracy, disabilities, not speaking a language in which the CBP One 
app is provided, lack of knowledge about the existence of the CBP One 
app, or a lack of resources or other difficulties; or (3) fail to 
secure appointments after multiple attempts.
    Additionally, commenters noted that the IFR does not contain an 
exception for being denied asylum in a country through which the 
noncitizen transited. Commenters stated that the Departments failed to 
provide a justification or explanation for eliminating such exceptions 
under the IFR and alleged that it is arbitrary for the Departments

[[Page 81228]]

to include such exceptions under the Circumvention of Lawful Pathways 
rule but not under the IFR.
    Commenters also asserted that the inconsistencies between the 
exceptions available under the IFR and the Circumvention of Lawful 
Pathways rule will create confusion for all parties, as it is unclear 
which rule will apply when emergency border circumstances are in 
effect.
    Response: The Departments decline to add any additional exceptions 
to the limitation on asylum eligibility and disagree with commenters' 
assertions that the Departments did not provide adequate justifications 
for why the rule does not contain exceptions for an inability to access 
or use the CBP One app or being denied asylum in a transit country.
    The Departments explained in the IFR that they were not adopting 
these exceptions from the Circumvention of Lawful Pathways rule 
because, unlike that rule, this rule only applies during emergency 
border circumstances, when the number of encounters strains the 
capacity of immigration and border security systems. 89 FR at 48732 
n.171. Because of this rule's focus on emergency border circumstances, 
the Departments have determined that the rule's exceptions should be 
limited to noncitizens ``with a time-sensitive imperative'' to enter 
the United States. Id. For example, the rule focuses its exception for 
exceptionally compelling circumstances on noncitizens who require 
immediate entry into the United States, due to medical emergencies or 
imminent and extreme threats to life or safety, among other reasons. 
See 8 CFR 208.35(a)(2)(i), 1208.35(a)(2)(i). The Departments have 
explained above why they have not included in the IFR and this rule the 
exception for difficulty using the CBP One app and refer readers to 
that discussion.
    Similarly, and as explained in the IFR, the Departments did not 
include and are not adding an exception for noncitizens who received a 
final decision denying asylum in a country through which they transited 
because this rule serves a different purpose than the Circumvention of 
Lawful Pathways rule. 89 FR at 48732 n.171. While the Circumvention of 
Lawful Pathways rule sought to encourage noncitizens to seek protection 
in other countries, this rule is focused on deterring irregular 
migration and speeding up the border process during emergency border 
circumstances, when the immigration system is experiencing extreme and 
enduring strains. Id. Accordingly, the Departments believe that 
limiting exceptions to those noncitizens who have the most immediate 
and urgent need to present at or cross the U.S. border is imperative. 
See id. Importantly, however, noncitizens who were denied protection in 
another country remain eligible to apply for asylum if they ``enter 
pursuant to an appointment, meet another exception to the Proclamation, 
or establish exceptionally compelling circumstances'' under this rule. 
Id.
    The Departments also disagree that omission of these exceptions 
will create confusion. The Departments clarify that both this rule and 
the Circumvention of Lawful Pathways rule are applied during credible 
fear screenings when emergency border circumstances are in effect. If 
it is determined that this rule does not apply, AOs and IJs will then 
consider the noncitizen's claim through the now familiar Circumvention 
of Lawful Pathways rule, which has been in effect for over a year. 
Given the Departments' experience in implementing the Circumvention of 
Lawful Pathways rule, the Departments are confident in adjudicators' 
ability to implement this rule, which is similar in structure to the 
Circumvention of Lawful Pathways rule, and to apply this rule's 
``exceptionally compelling circumstances'' exception, which mirrors the 
rebuttal grounds in the Circumvention of Lawful Pathways rule. See 89 
FR at 48739. If the noncitizen establishes exceptionally compelling 
circumstances under this rule pursuant to 8 CFR 208.35(a)(2)(i) or 8 
CFR 1208.35(a)(2)(i), they will also have established exceptionally 
compelling circumstances under the Circumvention of Lawful Pathways 
rule. 8 CFR 208.35(a)(2)(iii), 1208.35(a)(2)(iii). However, 
adjudication of the additional exceptions in Circumvention of Lawful 
Pathways are unlikely to be dispositive in cases where both this rule 
and the Circumvention of Lawful Pathways rule apply, because if the 
noncitizen does not meet the exception to this rule, this rule's 
limitation on asylum eligibility will apply.
c. Implementation by CBP Officers
    Comment: A few commenters expressed concern that, unlike the 
Circumvention of Lawful Pathways rule, in which AOs and IJs solely 
adjudicate the application of its presumption of asylum ineligibility 
and exceptions, the application of the Proclamation and the IFR are 
first adjudicated by CBP officers at the limit line, resulting in at-
risk individuals and survivors of violence being denied entry. 
Relatedly, commenters stated that although the IFR allows CBP officials 
at POEs to assess whether a noncitizen qualifies for an exception, it 
is unclear what guidance or training has been provided to those 
officials to ensure fair determinations or whether there is a mechanism 
for noncitizens to be screened for application of the bar when they 
approach a POE. A commenter noted that it is difficult to understand 
from the IFR how CBP will determine whether noncitizens are subject to 
the rule and how the rule and Proclamation would impact access to POEs 
and CBP conduct. Another commenter similarly stated that it is unclear 
whether the Departments would equip CBP officers or noncitizens to 
navigate the changes under the Proclamation and IFR, including in 
circumstances where the applicable legal standards could change within 
short windows of time, depending on whether crossing thresholds are 
being met.
    Response: Comments relating to the implementation of the 
Proclamation itself are outside the scope of this rule, which applies a 
separate limitation on asylum eligibility. Additionally, to the extent 
that commenters expressed concern about CBP officials assessing whether 
a noncitizen qualifies for a regulatory exception to the limitation on 
asylum eligibility, commenters misunderstand the operation of the IFR. 
CBP officials may determine whether an exception to the June 3 
Proclamation applies to a particular noncitizen, but do not apply the 
rule's limitation on asylum eligibility and its exception. Rather, it 
is AOs and IJs, during credible fear screenings and reviews, who must 
determine ``whether there is a significant possibility that the 
noncitizen would be able to establish by a preponderance of the 
evidence that they were not subject to the rule's limitation on asylum 
eligibility or that they will be able to establish by a preponderance 
of the evidence exceptionally compelling circumstances.'' 89 FR at 
48739; see also 8 CFR 208.35(b), 1208.35(b). AOs and IJs--not CBP 
officials--will thus be evaluating whether the limitation on asylum 
eligibility applies and whether a noncitizen has established a 
regulatory exception. See 8 CFR 208.35(b)(1); 8 CFR 1208.35(a), (b).
d. Application of the Limitation on Asylum Eligibility in Proceedings 
Before EOIR
    Comment: Commenters stated broad concerns with the credible fear 
review process in general, including concerns over whether there are 
adequate opportunities to present supplementary evidence and testimony, 
questions over whether IJ review is truly de novo, concerns that IJs do 
not appropriately

[[Page 81229]]

weigh evidence in the record, and concerns that the outcome of credible 
fear reviews is dependent upon the IJ considering the case, rather than 
the strength of the claim.
    Commenters also objected to the IFR's provision that would require 
noncitizens to affirmatively request IJ review of a negative credible 
fear determination. Commenters stated that this affirmative request 
requirement removes an important safeguard intended to minimize the 
risk of refoulement, with particular harm to the most vulnerable 
noncitizens. Commenters explained that, given the frequency of IJs 
reversing negative credible fear findings, IJ review is a necessary 
procedural protection for the integrity of the asylum screening 
process, especially since the IFR's changes may lead to erroneous 
decisions by AOs. Moreover, commenters stated that requiring 
noncitizens to affirmatively request review is especially problematic 
when combined with the other changes in the IFR, namely the limited 
opportunity to access counsel and the heightened standards of proof for 
pre-screening interviews. Commenters stated that there must be an 
opportunity for IJ review of negative fear determinations to be 
considered an effective remedy under international law.
    Commenters also stated there are a multitude of reasons why a 
noncitizen may fail to request IJ review. For example, a noncitizen may 
fail to request IJ review due to mental health conditions, language 
barriers, trauma, or because they are not adequately informed of the 
procedure for requesting review. Similarly, one commenter stated that 
requiring noncitizens to affirmatively request review mirrors the 
Global Asylum Final Rule, 85 FR 80274, which the Departments later 
reversed in a subsequent rulemaking, see Procedures for Credible Fear 
Screening and Consideration of Asylum, Withholding of Removal, and CAT 
Protection Claims by Asylum Officers, 87 FR 18078 (Mar. 29, 2022) 
(``Asylum Processing IFR''), citing fairness concerns and noting that 
treating a failure to elect review as a request for review better 
accounts for the range of explanations for a noncitizen's failure to 
seek review.
    Commenters supported the IFR's requirement that DHS inform 
noncitizens of the procedure to request review and recommended that 
such information be provided both verbally and in writing in a language 
that the noncitizen understands. However, commenters said that 
noncitizens may find the concept of an IJ review hearing confusing, and 
requiring noncitizens to request review may unfairly punish noncitizens 
for their confusion.
    Response: To the extent that commenters raise concerns about the 
credible fear review process in general, such concerns are outside the 
scope of this rulemaking, which is focused only on the credible fear 
review process for noncitizens who are subject to this rule.
    As to concerns about credible fear review under this rule, the 
Departments emphasize that, although the rule requires noncitizens to 
affirmatively request review of a negative credible fear determination, 
the statutory right to IJ review remains available. See INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 
208.30(g), 1208.30(g)(2). The Departments will continue to seek to 
ensure noncitizens are aware of the right to IJ review and the 
consequences of failure to affirmatively request such review. See, 
e.g., 88 FR at 11747. Specifically, if an AO enters a negative credible 
fear determination, the AO will provide the noncitizen with a written 
notice of decision and inquire whether the noncitizen wishes to have an 
IJ review the negative credible fear determination. 8 CFR 
208.35(b)(1)(i), (2)(iii). Thus, contrary to commenters' concerns, this 
safeguard remains in place and the Departments believe that such notice 
sufficiently ensures that noncitizens who desire IJ review of negative 
credible fear determinations can elect it under this rule.
    As explained in the analogous provision introduced in the 
Circumvention of Lawful Pathways rule, to ensure that the noncitizens 
referenced by commenters--including noncitizens with mental health 
conditions, those who have suffered trauma, or those who are unable to 
read or speak English--understand what review is available to them, DHS 
provides explanations to noncitizens ``to make clear to noncitizens 
that the failure to affirmatively request review will be deemed a 
waiver of the right to seek such review.'' 88 FR at 11747. These 
explanations are provided by trained asylum office staff through an 
interpreter in a language understood by the noncitizen. As a result, 
the Departments believe it is reasonable to conclude that noncitizens 
who do not request IJ review after receiving sufficient notice, see 
id., and the enhanced explanations described above, can be fairly 
processed as if they have declined to seek additional IJ review. See 88 
FR at 11747.
    Moreover, the Departments previously acknowledged in the 
Circumvention of Lawful Pathways rule that ``the procedure for IJ 
review of negative credible fear determinations . . . differ[ed] from 
the credible fear review procedures implemented by the Asylum 
Processing IFR.'' 88 FR at 31423 (citing 88 FR at 11744). There, the 
Departments explained that ```the need for expedition under the current 
and anticipated exigent circumstances' weigh[ed] in favor of requiring 
noncitizens to affirmatively request IJ review of a negative credible 
fear determination.'' Id.
    Following this reasoning, the Departments believe that this 
requirement that noncitizens affirmatively request IJ review of 
negative credible fear determinations continues to be necessary during 
times of emergency border circumstances, despite other measures to 
address the exceptionally high levels of irregular migration along the 
southern border, including the Circumvention of Lawful Pathways rule. 
See 89 FR at 48712-13 (listing measures). This rule has been adopted to 
address emergency border circumstances, times where the Departments' 
limited resources are under maximum strain to the point where border 
security and immigration systems are experiencing serious operative 
impacts and further fueling more lasting effects of a backlogged 
system. Accordingly, the Departments believe requiring noncitizens to 
affirmatively request IJ review of credible fear determinations will 
help ensure that such reviews take place only for those who desire such 
review. The alternatives suggested by commenters risk extending such 
review to those not actually interested in IJ review, thereby 
unnecessarily expending valuable adjudicatory capacity during a time 
when such resources are not available.
    As to requests to provide information about review procedures 
verbally and in writing in a language that the noncitizen understands, 
noncitizens receive that information in writing (via a written English 
document), and noncitizens who do not speak English receive that 
information verbally through a real-time translation of the written 
document as well. This approach satisfies the Departments' statutory 
obligations, see INA 235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv), and 
in DHS's judgment, provides adequate notice of the ability to seek 
review. It is neither required nor feasible to, in addition, provide 
that information in written form in all languages that may be spoken.
    Comment: Commenters stated that the same complexity concerns about 
the IFR raised by commenters in the credible fear context will apply to 
removal proceedings before IJs. For example,

[[Page 81230]]

commenters stated that determinations as to the timing and 
applicability of emergency border circumstances, including determining 
whether emergency circumstances were in effect on the noncitizen's 
dates of entry, whether to apply this rule versus the Circumvention of 
Lawful Pathways rule, and whether exceptionally compelling 
circumstances apply, would only lead to longer, more complex removal 
proceedings, and an inefficient focus on inquiries having no bearing on 
the merits of the protection claim in an already backlogged immigration 
court system. Commenters said that proceedings could be prolonged due 
to a potential rise in the numbers of motions to reopen or reconsider 
and appeals to the BIA or Federal courts challenging application of the 
rule, among other reasons.
    Commenters stated that these determinations will be especially 
complex for noncitizens who enter without inspection (``EWI''). 
Commenters explained that it is unclear how the Departments will 
accurately determine whether this rule applies, especially when few 
people who EWI remember the exact date they crossed the border and, 
regardless, will likely not have evidence of the time of such crossing. 
Therefore, commenters stated that the rule will result in arbitrary IJ 
decisions, because IJs will not be able to determine whether the rule 
applies. As a result, commenters suggest creating a specific policy for 
noncitizens who EWI.
    Response: The Departments disagree with commenters' concerns about 
the complexity in applying this rule in EOIR proceedings. To the 
contrary, given the IJ's role as the fact finder in removal 
proceedings, IJs are well-equipped to make fact-based determinations, 
such as dates of entry and whether emergency border circumstances were 
in effect on a specific date. See, e.g., INA 240(b)(1), 8 U.S.C. 
1229a(b)(1) (``Authority of immigration judge''). For example, 
regarding commenters' concerns about noncitizens who EWI, the 
Departments note that IJs routinely make similar entry timing 
determinations, such as determining application of the one-year filing 
deadline for asylum and continuous physical presence for cancellation 
of removal for certain nonpermanent residents. INA 208(a)(2)(B), 8 
U.S.C. 1158(a)(2)(B) (one-year time limit); INA 240A(b)(1)(A), 8 U.S.C. 
1229b(b)(1)(A) (cancellation of removal for certain nonpermanent 
residents). Moreover, IJs have been applying the Circumvention of 
Lawful Pathways rule since its effective date, which similarly requires 
determining a noncitizen's entry date. See 8 CFR 1208.33(a)(1)(i) 
(requiring determination as to whether a noncitizen entered the United 
States ``[b]etween May 11, 2023, and May 11, 2025'').
    Additionally, one change made by this rule--requiring the 7-
consecutive-calendar-day average to remain below 1,500 encounters 
between POEs for 28 consecutive calendar days before the 14-day waiting 
period is triggered--will further reduce complexity concerns by 
reducing the probability that emergency border circumstances will be 
discontinued and then continued or reactivated soon thereafter. This 
requirement not only better ensures that emergency border circumstances 
have abated, but also mitigates potential confusion in determining 
whether emergency border circumstances were in effect on a noncitizen's 
date of entry. Contrary to commenters' concerns, this rule's provisions 
will not consistently ``turn off'' one day and ``turn on'' the next 
day. Rather, when triggered, this rule will be in effect for a more 
sustained period of time, making it easier for noncitizens and 
adjudicators to determine the timing and applicability of emergency 
border circumstances. Lastly of note, at all times since issuance of 
the June 3 Proclamation and publication of the IFR, DHS has maintained 
a publicly available record of the dates that a suspension and 
limitation on entry is in effect.\264\ This DHS-maintained record will 
be available into the future, and the Departments believe that it will 
serve as an essential aid for IJs in determining whether the provisions 
of the rule should be applied based on a noncitizen's date of entry.
---------------------------------------------------------------------------

    \264\ See DHS, Securing the Border: Presidential Proclamation 
and Rule (Aug. 6, 2024), https://www.dhs.gov/immigration laws.
---------------------------------------------------------------------------

e. Family Unity Provisions
    Comment: Commenters expressed general support for the family unity 
provisions in the IFR, stating that family unity is a key principle in 
both international and U.S. immigration law. However, commenters also 
raised concerns that the provisions were not sufficient, and that 
family unity would be better preserved by eliminating the rule's 
limitation on asylum eligibility altogether. For example, commenters 
stated that the family unity provisions are overly limiting, as they 
only benefit noncitizens who are able to meet the higher burden of 
proof for statutory withholding of removal.
    Commenters were also concerned that the family unity provisions 
would create unnecessary procedural hurdles for families. For example, 
commenters raised concerns that the family unity provisions only apply 
to qualifying family members who cannot independently establish other 
protection from removal. In doing so, commenters also questioned what 
forms of protection would qualify as ``other protection from removal'' 
sufficient to disqualify spouses or children from the family unity 
provisions.
    Commenters stated that this requirement would result in ethical 
dilemmas where families would need to ensure that qualifying family 
members do not independently qualify for statutory withholding of 
removal so that the family members can receive derivative asylum relief 
under the family unity provisions. Commenters also claimed that this 
requirement would require family members to obtain separate counsel and 
sever proceedings, which will cause unnecessary financial hardship to 
the family and undue burdens to the Government. Rather, commenters 
recommended removing altogether the requirement that qualifying spouses 
or children not independently qualify for relief.
    Commenters also raised procedural questions about how the family 
unity provisions function where a noncitizen is belatedly eligible for 
asylum under the family unity provisions, but after their spouse or 
child have undergone their own immigration adjudications.
    Response: The Departments agree with commenters that keeping 
families unified and avoiding family separation is an important goal. 
Emergency border circumstances necessitated implementation of the IFR's 
limitation on asylum eligibility to better manage border operations and 
substantially improve the Departments' ability to deliver timely 
decisions and consequences to noncitizens who lack a lawful basis to 
remain in the United States. See 89 FR at 48715.
    Nevertheless, recognizing the importance of family unity, the 
Departments included a number of provisions in the IFR to eliminate the 
risk of family separation. For example, the ``exceptionally compelling 
circumstances'' exception applies to all qualifying family members of 
the noncitizen's traveling party if the noncitizen, or the noncitizen's 
qualifying family member with whom the noncitizen is traveling, meets 
the exception. See 8 CFR 208.35(a)(2)(i), 1208.35(a)(2)(i).
    Similarly, the IFR made no changes to the family unity provision, 
which establishes an ``exceptionally compelling circumstances'' 
exception for noncitizens who can, among other

[[Page 81231]]

requirements, establish eligibility for statutory withholding of 
removal or CAT protection and could have, but for either the IFR's 
limitation or Circumvention of Lawful Pathways presumption, established 
eligibility for asylum. See 8 CFR 208.35(c), 1208.35(c); see also 88 FR 
at 11723-24 (explaining that the parallel Circumvention of Lawful 
Pathways family unity provision is intended to treat ``the possibility 
of separating the family'' as ``an exceptionally compelling 
circumstance'' when the provision's requirements are met). This 
provision allows qualifying noncitizens to pursue asylum, and its 
allowance for derivative beneficiaries, instead of statutory 
withholding of removal and CAT protection, with their comparatively 
fewer benefits. See INA 208(b)(3), 8 U.S.C. 1158(b)(3) (derivative 
asylum status).
    Importantly, these provisions are not intended to serve as 
wholesale ``family'' exceptions to the IFR's limitation on asylum 
eligibility, which would significantly reduce the effectiveness of the 
limitation on asylum eligibility and incentivize families to engage in 
dangerous irregular migration to the United States. See 89 FR at 48757 
(explaining that ``[e]xcepting all family units that include minor 
children could incentivize families who otherwise would not make the 
dangerous journey and cross unlawfully to do so''). Rather, the 
exceptionally compelling circumstances family unity exceptions help 
ensure that noncitizens who qualify for the rule's exception are not 
separated from their qualifying spouses or children while pursuing 
relief or protection in the United States, including, for example, 
through derivate asylee status if granted relief, or through removal of 
the family unit if denied.
    With regard to commenter concerns about qualifying spouses or 
children obtaining their own independent relief or protection, which 
would in turn make the IFR's family unity provisions inapplicable, the 
Departments clarify that the IFR's family unity provisions are intended 
as limited exceptions solely to prevent potential family separation due 
to the IFR's limitation on asylum eligibility. If qualifying spouses or 
children obtain independent relief or protection that allows them to 
remain in the United States, then they will have necessarily avoided 
the family separation concerns underlying the IFR's family unity 
provisions. See, e.g., 88 FR at 11724 (explaining that the parallel 
Circumvention of Lawful Pathways family unity provision is intended to 
avoid family separation where ``at least one other family member would 
not qualify for asylum or other protection from removal on their 
own''). The Departments further note that asylum ``or other 
protection'' under this family unity provision refers to statutory 
withholding of removal and CAT protection. See, e.g., Implementation of 
the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for 
Cooperation in the Examination of Refugee Status Claims From Nationals 
of Third Countries, 88 FR 18227 (Mar. 28, 2023) (noting that ``asylum 
or other protection'' refers to claims ``relating to a fear of 
persecution or torture'').
    Additionally, to the extent that commenters raised concerns over 
qualifying spouses or children independently receiving statutory 
withholding of removal, with comparatively fewer benefits than asylum, 
the Departments note that statutory withholding of removal protects the 
qualifying spouse or child from removal to a country where they more 
likely than not would be persecuted because of their race, religion, 
nationality, membership in a particular social group, or political 
opinion. See INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A); INS v. Aguirre-
Aguirre, 526 U.S. 415, 419 (1999); Stevic, 467 U.S. at 429-30; see also 
8 CFR 208.16, 1208.16. Moreover, if noncitizen families wish to pursue 
asylum relief specifically, the IFR and the Circumvention of Lawful 
Pathways rule are designed to encourage noncitizens to make an 
appointment to present at the SWB or take advantage of other lawful 
migration pathways. See 89 FR at 48730-31.
    Relatedly, the Departments do not share commenters' concerns about 
potential ethical dilemmas faced by representatives related to pursuing 
independent relief for family members due to the family unity 
provisions. Representatives must be truthful to the court in presenting 
the record facts and will either be able to zealously advocate on 
behalf of all of their clients where the family members' interests 
present no conflict, or counsel can withdraw from such representation 
if they believe they cannot advocate for each client's interests 
equally. See 8 CFR 1003.102 (acknowledging that practitioners who 
appear before EOIR have a duty to zealously represent their clients 
``within the bounds of the law''); see also 8 CFR 1003.102(c) (setting 
forth that a practitioner may face disciplinary sanctions for 
``[k]nowingly or with reckless disregard'' making a false statement of 
material fact or law).
    Further, this rule does not impact EOIR's existing procedures for 
consolidating or severing cases, which has always involved parties 
making assessments and strategic decisions on how best to proceed with 
their cases. See Immigration Court Practice Manual ch 4.21 (setting 
forth procedures for combining and severing cases). Prior to this rule, 
family units have been able to seek asylum and related forms of 
protection in consolidated proceedings, and family units are always 
permitted to sever their proceedings if they so choose, including for 
strategic reasons based on their own assessment about the strength of 
their individual claims. Id. Thus, the Departments disagree that the 
rule will meaningfully impact noncitizens choosing to sever their cases 
from those of their families in the way that commenters claim, 
especially given the family unity provisions included in the IFR and 
maintained in this final rule.
    Lastly, with regard to procedural timing concerns in applying the 
family unity provisions, the Departments clarify that the family unity 
provisions only apply to qualifying family members who are accompanying 
the principal applicant or who are eligible to follow to join that 
applicant. See 8 CFR 208.35(c), 1208.35(c). Therefore, principal 
applicants and accompanying family members who are traveling together 
will generally have their claims adjudicated together in removal 
proceedings. See, e.g., Immigration Court Practice Manual ch. 4.21(a) 
(Oct. 25, 2023) (explaining that immigration courts may consolidate 
cases together that involve immediate family members into a single 
adjudication). As a result, there are unlikely to be significant timing 
gaps between determinations on any individual relief or protection 
claims within a family unit.
    Comment: Commenters supported the inclusion of a family unity 
provision in the AMI process, wherein DHS retains jurisdiction over an 
asylum application for further adjudication after a positive credible 
fear determination. Commenters stated that it is logical and efficient 
for AOs to apply the same family unity provision as IJs when 
adjudicating the merits of an asylum application. However, commenters 
also expressed concern that the family unity provision in the AMI 
process is discretionary for AOs, and urged the Departments to make the 
provision mandatory, similar to the family unity provision for IJs in 
the IFR. Commenters also recommended amending the Circumvention of 
Lawful Pathways rule to allow DHS to apply the same family unity 
exception under that rule to avoid confusion that the disparity would 
allegedly cause for applicants, counsel,

[[Page 81232]]

and AOs, particularly where the two rules are both in effect and 
overlapping.
    Response: In the IFR, the Departments included a family unity 
provision in the AMI process before USCIS, but made it discretionary to 
provide USCIS with flexibility while implementing the new AMI process. 
See 89 FR at 48733. After further consideration, the Departments are 
retaining the discretionary nature of the family unity provision in the 
AMI process before USCIS.
    USCIS maintains complete discretion to place a case with a positive 
credible fear determination into the AMI process or to issue an NTA. 8 
CFR 208.30(f). In exercising this discretion, USCIS does not foresee 
that it would be a prudent use of resources to place cases into the AMI 
process where, at the credible fear stage, the IFR's limitation on 
asylum eligibility applied and there was not a significant possibility 
the noncitizen could establish an exception to the limitation. USCIS 
has a finite number of AOs, and it is more efficient at present to 
assign work in a manner that maximizes the number of credible fear 
interviews USCIS can conduct at the southern border. See 89 FR at 
48756. Accordingly, it is unlikely that USCIS would adjudicate a case 
where the 8 CFR 208.35(c) family unity provision could apply in the 
foreseeable future.
    With that understanding, were such a case ever to be placed into 
the AMI process, USCIS has the discretion to apply the 8 CFR 208.35(c) 
family unity provision, depending on the circumstances of the 
individual case. Importantly, if USCIS exercises its discretion not to 
apply the family unity provision, the noncitizen will not be prejudiced 
because, if USCIS does not grant asylum in such a case, the asylum 
application will be reviewed de novo by an IJ, 8 CFR 1240.17(i), who is 
required to apply the family unity provision in removal proceedings 
pursuant to 8 CFR 1208.35(c).
    Additionally, the discretionary nature of the family unity 
provision before USCIS in 8 CFR 208.35(c) is necessary in order for 
USCIS to comply with the AMI regulatory timeline laid out in 8 CFR 
208.9. This timeline requires USCIS to conduct the AMI interview no 
later than 45 days of the applicant being served with a positive 
credible fear determination, absent exigent circumstances, 8 CFR 
208.9(a)(1), and prohibits extensions on the submission of additional 
evidence that would prevent the AMI decision from being issued within 
60 days of service of the positive credible fear determination, 8 CFR 
208.9(e)(2). While the IFR allows for USCIS to extend both of those 
timelines up to 15 days in the event USCIS requires the noncitizen to 
submit a Form I-589, 8 CFR 208.35(b)(2)(ii), even with a 15-day 
extension, these are still accelerated time frames that would not 
accommodate applying the family unity provision in every AMI case where 
it could potentially apply before USCIS.
    In some cases, USCIS may be able to apply the family unity 
provision without running afoul of the regulatory time frames, such as 
where the accompanying family members are also dependents on the AMI 
case, and the principal applicant is found eligible at the AMI for 
statutory withholding of removal with respect to their country of 
nationality based on the record before USCIS. In such a case, the AO 
could likely apply the family unity provision within the regulatory 
timelines, as there would likely be no need to request additional 
evidence verifying the qualifying family relationships. Additionally, 
if the principal applicant was already found eligible for statutory 
withholding of removal with respect to their country of nationality 
based on the record before USCIS, it is likely that they also would be 
found eligible for asylum if the limitation on asylum eligibility is 
not applied. In such a circumstance, USCIS could likely exercise 
discretion to apply the 8 CFR 208.35(c) family unity provision in a 
logical and efficient manner and complete the case within the 
regulatory time frame without issue.
    In other cases, however, applying the family unity provision in an 
AMI case could prove excessively cumbersome within the regulatory time 
frame. For example, if the qualifying family relationship relates to a 
family member outside of the United States for which additional proof 
is needed to establish the relationship, it may be impossible for an AO 
to extend the timeline to accommodate the production of such evidence 
and still meet the processing timeline for an AMI under 8 CFR 
208.9(e)(2). In a case where the AO finds the noncitizen is not 
eligible for asylum due to the IFR's limitation on asylum eligibility, 
and is not eligible for statutory withholding of removal, but would be 
eligible for withholding of removal under 8 CFR 208.16(c)(2) 
(withholding of removal under the CAT) based on the record before 
USCIS, requiring the AO to apply the 8 CFR 208.35(c) family unity 
provision would entail the AO conducting a cumbersome analysis, 
including revisiting the noncitizen's asylum eligibility, absent 
application of the IFR's limitation on eligibility, only to possibly 
still find the applicant ineligible for asylum on the merits and refer 
the case to the IJ, who would then review the asylum application de 
novo. See 8CFR 1240.17(i).
    Indeed, if USCIS were required to apply the 8 CFR 208.35(c) family 
unity provision in all AMI cases, significant extra resources would 
likely have to be expended in any case where the provision might apply 
(including additional interview time, extending the evidentiary 
submission timeline, and additional time writing up the case) even 
where it would not result in a grant of asylum. If asylum is not 
granted by USCIS, asylum eligibility would still be reviewed de novo by 
an IJ. See 8 CFR 1240.17(i). Keeping the provision discretionary, in 
contrast, allows USCIS to apply the provision where it can do so in a 
logical and efficient manner without thwarting the regulatory timelines 
for AMI processing.
    While logic and efficiency support keeping the 8 CFR 208.35(c) 
family unity provision discretionary for AMI cases before USCIS, it is 
also logical for the 8 CFR 1208.35(c) family unity provision to apply 
in all removal proceedings (whether they originated as AMI cases or 
not) before EOIR. Removal proceedings before the IJ are potentially the 
last opportunity the noncitizen will have to be granted asylum. In 
contrast, the AMI process before USCIS cannot result in a denial of 
asylum, only a referral to the IJ for a de novo review of the asylum 
application. 8 CFR 208.14(c)(1), 1240.17(i). Additionally, while 
removal proceedings for AMI cases operate on a streamlined time frame, 
there is still substantially more time allotted for removal proceedings 
before EOIR than for the initial AMI adjudication before USCIS, 8 CFR 
208.9(a)(1), (e)(2), id. at 1240.17(f), so there is more flexibility in 
the time frame for the IJ to apply the family unity provision at the 
final adjudication stage than there would be for an AO to apply the 
provision in the AMI process before USCIS.
    Separately, the Departments note that any comments regarding family 
unity amendments to the separate Circumvention of Lawful Pathways rule 
are outside the scope of this rulemaking.
2. Manifestation of Fear Standard
a. Legality Concerns
    Comment: Commenters expressed concerns that implementing a 
manifestation of fear requirement would ultimately lead to noncitizens 
with valid claims being removed without proper evaluation, which would 
violate U.S. international non-refoulement obligations and ``circumvent 
U.S. asylum law.'' One advocacy group

[[Page 81233]]

called the manifestation requirement a ``deeply deficient'' means of 
screening applicants for fear that will cause ``credible fear pass 
rates to plummet and lead to refoulement.'' Another commenter described 
the change as ``morally and legally troubling,'' while a third 
commenter stated that it would create significant hurdles for 
noncitizens seeking statutory withholding of removal and CAT 
protection.
    Commenters further asserted that the manifestation requirement 
violates specific international refugee laws or principles. Citing 
amicus briefs, the UNHCR handbook, and other UNHCR publications, one 
commenter stated that the United States has an ``affirmative 
obligation'' under international law ``to elicit information that might 
reveal potential refugee status'' and ``conduct an individualized 
assessment to evaluate whether the individual is entitled to protection 
as a refugee,'' which the manifestation requirement violates. In that 
same vein, another commenter observed that international refugee 
organizations have ``long emphasized that to fully carry out . . . 
obligations under the Refugee Convention'' the parties should implement 
procedures that ``affirmatively identify'' possible applicants and 
provide guidance to them on how to apply for relief and protection, and 
the IFR's ``reliance on manifestation of fear is inadequate to fulfill 
these basic requirements.''
    Commenters stated that the manifestation requirement violated 
proper implementation of the credible fear process outlined in the INA. 
One commenter characterized the IFR's manifestation requirement as an 
attempt to expand the reach of expedited removal by creating additional 
barriers to credible fear interviews, in violation of Federal law. 
Another commenter stated the manifestation requirement did not align 
with ``Congressional intent'' to ``ensure that asylum was available to 
all those with legitimate claims.'' Other commenters echoed the 
sentiment that the manifestation requirement was implemented without 
regard for the risk of refoulement and purely as a means to efficiently 
remove noncitizens without a hearing.
    Commenters also stated that eliminating the requirement that 
immigration officers affirmatively document and inquire about a 
noncitizen's fear of persecution during initial encounters at the 
border is a ``sharp break from prior practice by the Departments'' that 
would ultimately lead to higher numbers of noncitizens being refouled. 
One commenter described the change to using manifestation as ``a 
dangerous reversal of a procedural safeguard'' designed to ensure legal 
compliance, expressing concern that other safeguards are already being 
removed. Other commenters recommended that the Departments end the 
manifestation of fear approach and reinstate the previous policy of 
using preliminary questions to identify whom to refer for credible fear 
screenings.
    Some commenters opposed the manifestation requirement due to 
concerns that it violated DHS's obligations under section 
235(b)(1)(B)(iv) of the INA, 8 U.S.C. 1225(b)(1)(B)(iv), and pointed to 
what they purport was the Government's acknowledgment (see 89 FR at 
48741 n.194) that an argument could be made that the IFR conflicts with 
the INA. Specifically, commenters argued that the INA requires DHS to 
provide information concerning credible fear interviews to noncitizens 
who may be eligible and eliminating use of the forms in lieu of a 
manifestation requirement was a violation of that statutory obligation. 
Commenters were specifically concerned that the alternatives outlined 
in the IFR--such as providing signs and videos in facilities--would not 
be ``sufficient to put noncitizens on notice of how they may assert a 
claim for protection.''
    Commenters pointed to different parts of the IFR where they believe 
the Government explicitly acknowledged that the manifestation 
requirement will result in refoulement and stated that these purported 
acknowledgements are problematic. One commenter stated that the IFR was 
creating a standard that ``knowingly accepts'' a probability of 
violating non-refoulement and fails to satisfy the statutory 
requirement to provide information about credible fear interviews to 
noncitizens who may be eligible for such interviews. Another commenter 
highlighted part of the IFR that they said conceded that the 
manifestation requirement would result in the removal of noncitizens 
with valid claims. Similarly, commenters discussed the IFR's purported 
admission that asylum seekers who are asked affirmative questions about 
whether they have a fear of returning to their home country are seven 
times more likely to assert a claim.
    Response: The Departments disagree that the manifestation standard 
violates any international obligations or that it is inconsistent with 
Federal law.
    As to concerns related to international law, commenters did not 
specify any binding international law source that creates such 
obligations and instead cited publications and amicus briefs, which do 
not have the force of law and are not international treaties to which 
the United States is a party. As described in Section II.B of this 
preamble, the United States' non-refoulement obligations are 
implemented through domestic law, and neither the 1967 Protocol nor the 
CAT are self-executing. Regardless, as outlined in the IFR, 89 FR at 
48740-41, the applicable international laws do not specifically 
prescribe the minimum screening requirements that must be implemented 
to determine whether a noncitizen should be referred for a credible 
fear interview.\265\ Instead, it is up to each participating state ``to 
establish the procedure that it considers most appropriate, having 
regard to its particular constitutional and administrative structure.'' 
\266\ Thus, it is within the Departments' discretion to revisit the 
screening process the United States implements during emergency border 
circumstances.
---------------------------------------------------------------------------

    \265\ See UNHCR, Handbook on Procedures and Criteria for 
Determining Refugee Status and Guidelines on International 
Protection Under the 1951 Convention and the 1967 Protocol Relating 
to the Status of Refugees ] 189 (Jan. 1992 ed., reissued Feb. 2019), 
https://www.unhcr.org/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967 
(highlighting that the process for identifying refugees is not 
``specifically regulated'').
    \266\ Id.
---------------------------------------------------------------------------

    Moreover, the United States continues to uphold its non-refoulement 
obligations during emergency border circumstances.\267\ Under 
applicable international law, the United States has an obligation (1) 
not to return noncitizens to countries where they would be persecuted; 
and (2) not to return noncitizens to countries where it is more likely 
than not that they would be tortured. See Refugee Convention, 19 U.S.T. 
at 6276, 189 U.N.T.S. at 176 (outlining standard under the Refugee 
Convention); Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) 
(outlining standard under the CAT). During the emergency circumstances 
at the southern border, the manifestation standard temporarily affords 
immigration officers the ability to refrain from affirmatively asking 
noncitizens about fear, and instead refer noncitizens to an AO for a 
credible fear interview if the noncitizen manifests a

[[Page 81234]]

fear of return, expresses an intention to apply for asylum, expresses a 
fear of persecution or torture, or expresses a fear of return to the 
noncitizen's country or country of removal. 89 FR at 48739-40. This 
rule does not, in any way, prevent noncitizens from manifesting or 
expressing such fears; rather, the rule ensures that noncitizens who 
manifest or express such fears are properly screened consistent with 
United States' non-refoulement obligations. See 8 CFR 235.15(b)(4). As 
explained in the IFR and this rule, the Departments believe that this 
requirement represents the best way to remain consistent with U.S. 
international obligations while simultaneously addressing the emergency 
circumstances at the southern border.
---------------------------------------------------------------------------

    \267\ The United States' non-refoulement obligation under 
Article 33 of the Refugee Convention is implemented by statute 
through section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), for 
mandatory withholding of removal. And the United States implements 
its obligations under Article 3 of the CAT through regulations. See 
Foreign Affairs Reform and Restructuring Act of 1998, Public Law 
105-277, sec. 2242(b), 112 Stat. 2681, 2681-822 (8 U.S.C. 1231 
note); see also, e.g., 8 CFR 208.16(c), 208.17, 208.18, 1208.16(c), 
1208.17, 1208.18.
---------------------------------------------------------------------------

    The Departments also do not believe the manifestation standard 
violates the INA or any other Federal law. As addressed in the IFR, 89 
FR at 48739-40, DHS has broad authority to change the procedures that 
immigration officers apply to determine whether a noncitizen subject to 
expedited removal will be referred for a credible fear interview by an 
AO, so long as those procedures are consistent with the INA.\268\ In 
using this authority, the Departments are confident the manifestation 
standard is fully consistent with the statutory procedures governing 
expedited removal under section 235(b)(1)(A) of the INA, 8 U.S.C. 
1225(b)(1)(A). That statutory section provides that only those 
noncitizens who ``indicate[ ] either an intention to apply for asylum . 
. . or a fear of persecution,'' INA 235(b)(1)(A)(i), 8 U.S.C. 
1225(b)(1)(A)(i), must be referred to an AO for a credible fear 
interview, INA 235(b)(1)(A)(ii), 8 U.S.C. 1225(b)(1)(A)(ii). As such--
and contrary to commenters' assertions--the INA does not require 
immigration officers to affirmatively ask every noncitizen subject to 
expedited removal if they have a fear of persecution or torture, nor 
does it define what circumstances constitute the requisite indication 
of intent or fear. To the contrary, the onus under the statute is on 
the noncitizen to indicate either of the circumstances warranting 
referral, which the IFR provides a noncitizen can do at any time during 
the process. See 89 FR at 48740.\269\ Thus, as discussed in Section 
III.B.2 of this preamble, the rule's approach accords with section 
235(b)(1)(A)(ii) of the INA, 8 U.S.C. 1225(b)(1)(A)(ii).\270\
---------------------------------------------------------------------------

    \268\ See INA 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3) (granting 
the Secretary the authority to establish regulations and take other 
actions ``necessary for carrying out'' the Secretary's authority 
under the immigration laws); see also 6 U.S.C. 202; Motor Vehicle 
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 
U.S. 29, 42 (1983) (emphasizing that agencies ``must be given ample 
latitude to adapt their rules and policies to the demands of 
changing circumstances'' (quotation marks omitted)).
    \269\ Accord Indicate, Merriam-Webster's Collegiate Dictionary 
592 (10th ed. 1996) (``to point out or point to,'' ``to be a sign, 
symptom, or index of,'' ``to demonstrate or suggest the necessity or 
advisability of,'' or ``to state or express briefly''); Indicate, 
New International Webster's Comprehensive Dictionary of the English 
Language 644 (1996) (``To be or give a sign of; betoken,'' ``To 
point out; direct attention to,'' or ``To express or make known, 
especially briefly or indirectly''); Indicate, The American Heritage 
Dictionary of the English Language 918-19 (3d ed. 1996) (``To show 
the way to or the direction of; point out,'' ``To serve as a sign, 
symptom, or token of; signify,'' ``To suggest or demonstrate the 
necessity, expedience, or advisability of,'' or ``To state or 
express briefly''); Indicate, Webster's II New Riverside University 
Dictionary 622-23 (1994) (``To show or point out,'' ``To serve as a 
sign, symptom, or token of: signify,'' ``To suggest or demonstrate 
the need, expedience, or advisability of,'' or ``To express 
briefly'').
    \270\ See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. 
Council, Inc., 435 U.S. 519, 543 (1978) (``Absent constitutional 
constraints or extremely compelling circumstances the administrative 
agencies should be free to fashion their own rules of procedure and 
to pursue methods of inquiry capable of permitting them to discharge 
their multitudinous duties.'' (quotation marks omitted)); Knauff, 
338 U.S. at 543 (``[T]he decision to admit or to exclude an alien 
may be lawfully placed with the President, who may in turn delegate 
the carrying out of this function to a responsible executive officer 
of the sovereign, such as the Attorney General.''); Las Americas 
Immigr. Advoc. Ctr., 507 F. Supp. at 18.
---------------------------------------------------------------------------

    Separately, regarding commenters' concerns about departing from the 
longstanding practice of providing individualized advisals and asking 
affirmative questions, the Departments disagree that there are 
insufficient procedural protections for individuals subject to the 
rule. As the IFR acknowledged, the practice of providing individualized 
advisals and asking affirmative questions was originally adopted to 
``ensure that bona fide asylum claimants [were] given every opportunity 
to assert their claim[s].'' 89 FR at 48742 (quoting 62 FR at 10318-19). 
However, importantly, the legacy INS further explained that enacting 
these procedures was intended to ``not unnecessarily burden[ ] the 
inspections process or encourag[e] spurious asylum claims.'' Id. 
(quoting 62 FR at 10318). While such procedures have remained in place 
in the expedited removal context since 1997, this fact alone does not 
indicate that they are required by the INA, and DHS maintains 
discretion to update the procedures in a manner consistent with the 
INA. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) 
(holding that an agency changing an established rule must show that 
there are good reasons for the new policy but need not necessarily 
``provide a more detailed justification than what would suffice for a 
new policy created on a blank slate''). And indeed, when emergency 
circumstances are present on the southern border, the procedures 
adopted in 1997 are unduly suggestive and, thus, unnecessarily burden 
the inspections process, which necessitates revisiting screening 
referral processes to more effectively and efficiently identify those 
noncitizens who may have a fear of return to their native country or 
country of removal or indicate an intention to seek fear-based relief 
or protection. Given the extraordinary circumstances facing the 
Departments during times of emergency border circumstances, DHS has 
determined it is reasonable to implement the manifestation standard.
    The Departments similarly disagree that discontinuing use of the 
Form I-867A and Form I-867B during emergency border circumstances 
violates DHS's obligations under section 235(b)(1)(B)(iv) of the INA, 8 
U.S.C. 1225(b)(1)(B)(iv), which states that DHS ``shall provide 
information concerning the asylum interview . . . to aliens who may be 
eligible.'' DHS continues to provide information concerning credible 
fear interviews to noncitizens in CBP custody subject to expedited 
removal who may be eligible to receive such an interview via signs and 
videos in multiple languages, satisfying DHS's statutory duty under the 
INA. This is precisely what footnote 194 of the IFR explains. Rather 
than any purported acknowledgement of conflict with the INA, that 
footnote was simply included to clarify the points above and illustrate 
that the IFR does, in fact, satisfy this statutory obligation. 
Moreover, as the IFR explains, 89 FR at 48741-42, noncitizens who 
manifest a fear of return (and, thus, who are in fact eligible for a 
credible fear interview) are given a more detailed written explanation 
of the credible fear interview process prior to being referred for the 
interview.\271\ Additionally, noncitizens who manifest a fear in CBP 
custody are shown a video prior to their credible fear interview, which 
also explains the credible fear process in more detail.
---------------------------------------------------------------------------

    \271\ That explanation will be translated into certain common 
languages or will be read to the noncitizen if required. 89 FR at 
48741 n.194.
---------------------------------------------------------------------------

    The Departments also recognize commenters' concern regarding the 
IFR's explicit acknowledgment that the manifestation standard may 
result in some noncitizens with meritorious claims not being referred 
to a credible fear interview. See, e.g., 89 FR at 48743-44. The 
Departments included these statements to demonstrate their

[[Page 81235]]

thorough consideration of all possible issues that might arise from the 
implementation of a manifestation standard at the southern border 
during emergency circumstances. In that vein, the Departments emphasize 
that the manifestation standard is a temporary solution to emergency 
border circumstances. In light of those circumstances, it is critical 
to have a system in place that more effectively and efficiently 
identifies those who may have a fear of return or indicate an intention 
to seek fear-based relief or protection. Unfortunately, any screening 
mechanism--even affirmative questioning--could result in some 
noncitizens with potentially meritorious claims not being referred for 
a credible fear interview. But given the emergency border circumstances 
facing the Departments and discussed in the June 3 Proclamation, the 
IFR, and this rule, the Departments believe the manifestation standard 
is appropriate and necessary.
b. Concerns About the Efficiency and Complexity of the Manifestation 
Standard
    Comment: Several commenters expressed doubts about the Departments' 
claims that the change to the manifestation approach would increase 
efficiency, while others observed that the change would make the system 
more complex and create further inefficiencies. Relatedly, multiple 
commenters questioned the stated purpose of efficiency for eliminating 
the credible fear questions by CBP officers, writing that it instead 
appears to be a desire to reduce referrals of noncitizens for fear 
interviews and described the assertion by DHS in the preamble that the 
questions are suggestive and do not result in grants of asylum as 
unfounded.
    One commenter questioned whether the Departments are sacrificing 
legitimate claims in the name of speed. Commenters wrote that the three 
questions and explanation previously required by the Form I-867A and 
Form I-867B take only a few minutes to read and criticized the 
Departments for alleging efficiency gains of 20 to 30 minutes by 
eliminating critical questions that could prevent refoulement. The 
commenters further stated that investing in adequate training and 
enforcing compliance with the ``standard'' screening process would be 
more efficient than providing additional guidance and requiring CBP 
officers to complete additional training. Another commenter described 
the scenario of CBP officers directing noncitizens to interpreters, who 
will refer to the informative signs and videos the IFR's preamble 
described in CBP waiting rooms, and questioned whether this process 
would be shorter.
    Response: Regarding commenters' concerns regarding complexity and 
efficiencies, the Departments continue to believe that the 
manifestation standard outlined in the IFR meets the purposes for which 
it was implemented--to increase processing efficiency and avoid 
suggestive advisals and questioning, while still ensuring that 
noncitizens are able to seek protection in the United States.
    As outlined in the preamble to the IFR, DHS determined that, in 
times of emergency border circumstances, it was appropriate to 
temporarily eliminate the use of affirmative advisals and questions on 
the Forms I-867A and I-867B, based on DHS's determinations that such 
advisals and questioning can be suggestive. See 89 FR at 48743-45. The 
Departments disagree with the assertion that this determination was 
``unfounded.'' It was based on CBP's experience that, when noncitizens 
are asked affirmative questions like those on the Form I-867B, 
noncitizens are more likely to respond in the affirmative. The 
affirmative questions thus can serve as a prompt for noncitizens in 
custody to respond in the affirmative, even if they do not actually 
have a fear of persecution or torture. As outlined in the IFR, the 
Departments' determination is also consistent with the behavioral 
science concept of ``acquiescence,'' or the tendency of respondents to 
``consistently agree to questionnaire items, irrespective of item 
directionality.'' See 89 FR at 48743 n.220. Regarding concerns that 
such studies are less probative of noncitizens' experiences in CBP 
custody, DHS notes that it did not rely, and is not relying, on these 
studies as the sole basis for its determination that the advisals and 
affirmative questions are suggestive, nor is it asserting that these 
studies provide the only justification for the implementation of the 
manifestation standard in this rule. Rather, the implementation of the 
standard was, as noted above, based in part on CBP's experience in the 
years implementing the expedited removal process that providing 
affirmative advisals and asking affirmative questions was suggestive. 
As noted in the IFR, these studies provide illustrative support for 
this learned experience. See 89 FR at 48743.
    DHS continues to believe that the concept of acquiescence supports 
its determination, based on its decades of experience in the processing 
of noncitizens who enter the United States, that the affirmative 
advisals on the Form I-867A and the questions on the Form I-867B are 
suggestive. This determination is informed, in part, by information 
that agency personnel regularly receive about the activities of TCOs in 
the region, including information that TCOs guide or coach many 
noncitizens on what to say in order to remain in the United States. It 
is DHS's experience that, upon encounter and inspection, the questions 
on the Form I-867B can prompt noncitizens to follow this guidance, thus 
leading them to claim a fear even if they would not have done so on 
their own. While DHS acknowledges that noncitizens could similarly be 
prompted to manifest a fear under the approach of the IFR and this 
rule, DHS continues to believe that this approach will at minimum 
mitigate this problem by removing suggestive questions. Moreover, DHS 
continues to believe that it is likely that noncitizens with a fear of 
return or an intent to seek asylum will manifest a fear absent the 
affirmative advisals and questions on the Form I-867B. This is 
supported by the fact that DHS is referring on average more than 300 
individuals in DHS custody for credible fear interviews each day.\272\
---------------------------------------------------------------------------

    \272\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (IFR ERCF tab).
---------------------------------------------------------------------------

    DHS's determination that it was appropriate to eliminate the use of 
affirmative advisals and questions on the Form I-867B was also based in 
part on its assessment that such action would make the process more 
efficient. In particular, the Departments anticipated that the 
implementation of the manifestation standard would save approximately 
20-30 minutes of processing time, contributing to increased 
efficiencies in processing and across the immigration process. See 89 
FR at 48745. This assessment was based on the experience of CBP 
officers and agents with extensive experience reading and completing 
these forms, and DHS thus disagrees with commenters' contention that 
the completion of these forms only takes a few minutes. This is, in 
part, due to the fact that, when completing a sworn statement, such as 
the Form I-867A, officers and agents ask a number of questions of the 
noncitizen, each of which may need to be translated; the noncitizens' 
answers may need to be translated; and the officers and agents must 
record the answers to each question in the processing system. The 
noncitizen also must sign the sworn statement, which requires 
additional explanation that may require

[[Page 81236]]

translation. This question-and-answer process is in addition to the 
potential need to provide translation services to noncitizens, if 
needed, when reading noncitizens the contents of the Form I-867A. While 
it is difficult to provide the exact time saved as a result of these 
changes in processes (because USBP systems do not automatically track 
processing time, standing alone), it is CBP's experience in the time 
since the Proclamation and IFR were implemented that the elimination of 
these questions and processes (including not reading the contents of 
the Form M-444) has, as anticipated, saved approximately 20-30 minutes 
per person, and led to more efficient and expedited processing overall.
    With regard to concerns questioning the stated purpose behind the 
changes, the Departments disagree that the true purpose of the changes 
was to reduce the number of individuals referred for credible fear 
screenings. As explained in the IFR, the shift to a manifestation 
standard is intended to address suggestive questions and, in so doing, 
reduce the gap between high rates of referrals and screen-ins with 
historic ultimate grant rates as well as increase processing efficiency 
for DHS. See 89 FR at 48742-44 & n.220. As explained above in this 
section, there are multiple reasons why the referral rate observed 
under a direct questioning approach is very likely greater than the 
true rate of noncitizens who fear removal or intend to seek asylum--
including coaching by TCOs and the possibility that the advisals and 
questions lead to an unduly high rate of false positives. See id. at 
48743 & n.220. Seeking to address this problem is not the same as 
seeking to decrease the number of referrals for that purpose alone, as 
commenters suggest. Moreover, noncitizens who manifest or express a 
fear still have their claims adjudicated as required by the INA.
    The Departments appreciate commenters' suggestion that, rather than 
implementing a manifestation standard, resources should be devoted to 
providing additional training to CBP officers and agents on the non-IFR 
process, but decline to eliminate or change the manifestation standard 
at this time. As noted in the IFR and in this section, the Departments 
believe that, in the emergency border circumstances outlined in this 
rule, the manifestation standard is appropriate. In addition, CBP notes 
that its officers and agents have had experience implementing the 
statutory and regulatory requirements of expedited removal since they 
became effective and were implemented by legacy INS in 1997, including 
experience identifying indicators of fear.\273\ Guidance authored at 
that time explained that inspectors were required to refer a noncitizen 
to an AO if that noncitizen indicated an intention to apply for asylum 
or a fear of harm or concern about returning home.\274\ The guidance 
stated that immigration inspectors should consider verbal as well as 
non-verbal cues given by the noncitizen; and it provided that, when 
determining whether to refer the noncitizen, ``inspectors should not 
make eligibility determinations or weigh the strength of the claims, 
nor should they make credibility determinations concerning the alien's 
statements.'' \275\ The guidance also highlighted that ``[t]he 
inspector should err on the side of caution and apply the criteria 
generously, referring to the asylum officer any questionable cases, 
including cases which might raise a question about whether the alien 
faces persecution.'' \276\ CBP also notes that, like legacy INS, under 
the IFR procedures and consistent with agency policy, agents and 
officers are instructed to err on the side of caution and refer any 
questions to supervisory officers.\277\
---------------------------------------------------------------------------

    \273\ See Memorandum for Mgmt. Team, Reg'l Dirs., et al., from 
Off. of the Dep. Comm'r, Immigr. & Naturalization Serv., DOJ, Re: 
Implementation of Expedited Removal (Mar. 31, 1997).
    \274\ See id. at 3.
    \275\ Id.
    \276\ Id.
    \277\ See CBP, Securing the Border IFR and Presidential 
Proclamation CBP Manifesting Fear Guidance; CBP, Off. of Field 
Operations, Muster, Documenting Noncitizen Asylum of Fear Claims or 
Fear Manifestations (July 18, 2024); Memorandum for Dirs., Field 
Operations, & Dir., Preclearance Operations, Off. of Field 
Operations, from Acting Exec. Dir., Admissibility & Passenger 
Programs, Off. of Field Operations, CBP, Re: Processing Expedited 
Removal Cases & attach. (Muster); Memorandum Mgmt. Team, Reg'l 
Dirs., et al., from Off. of the Dep. Comm'r, Immigr. and & 
Naturalization Serv., DOJ, Re: Implementation of Expedited Removal 
at 3 (Mar. 31, 1997).
---------------------------------------------------------------------------

    The Departments also disagree with comments indicating that the 
manifestation standard creates complexities. They maintain that the 
manifestation standard, in fact, decreases the complexity of the 
process, given the more streamlined approach taken in the rule and 
disuse of the Form I-867A and the Form I-867B. In addition, as outlined 
in the preamble to the IFR and throughout this rule, the rule also 
allows DHS to effectively and efficiently remove inadmissible 
noncitizens who are subject to expedited removal orders while quickly 
identifying inadmissible noncitizens who require a credible fear 
screening by USCIS AOs. See 89 FR at 48742-43.
c. Implementation Guidance and Accuracy of Manifestation to Identify 
Fear of Return
    Comment: Several commenters described the manifestation approach 
presented by the IFR as an unclear method of assessing fear of return 
and critiqued the rule as confusing or lacking clear guidance on 
implementation. A commenter expressed concern that the criteria 
requiring referral for a credible fear interview are overly broad, 
including a ``mere belief'' that a noncitizen may have a fear of 
return. Similarly, another expressed concern that the IFR lacks 
guidance around what degree of manifestation is required, whether 
immigration officers will consistently implement the manifestation 
requirement, and whether noncitizens will be provided information ``if 
and when the Departments begin to figure out what is sufficient under 
this test,'' while another commenter added that the existing U.S. 
asylum infrastructure is inadequate to administer the multiple layered 
and broad-ranging changes of the IFR, including the change to use 
manifestation.
    Many commenters wrote that it is difficult and inappropriate for 
immigration officers to use manifestation of fear to assess fear of 
return. Commenters expressed concern that the IFR creates a confusing, 
non-transparent, and unfair situation for CBP officers to consider. A 
commenter described the manifestation standard as ``deficient'' in 
refugee protection and far from an equitable standard. The commenter 
wrote that requiring officers to simultaneously interrogate people at 
the border while also determining if their behaviors indicate fear is 
``nonsensical.'' Similarly, another commenter remarked that Border 
Patrol agents and CBP officers focus on border security and the 
identification and prevention of criminal activity at the border, often 
placing them in an adversarial role with noncitizens that would leave 
these workers ill-equipped to make careful and considered asylum 
determinations. The commenter also described the contrasting extensive 
trauma-informed training given to AOs to learn interviewing techniques 
designed for vulnerable populations, adding that research shows that 
many noncitizens who qualify for asylum relief have difficulty 
expressing their claims without the support of such trained techniques.
    A commenter referenced a statement in the IFR noting that although 
the video explaining the importance of expressing a fear of return will 
not be

[[Page 81237]]

played at small facilities, immigration officers at such facilities 
have resources to be able to ``devote a great deal of attention to 
observing individuals'' to see if they manifest fear or need a 
translator or reading assistance. See 89 FR at 48741 n.196. The 
commenter stated that this suggests that the opposite is true at the 
larger facilities, i.e., that officers at larger facilities will not 
have the time or wherewithal to scrutinize noncitizens for nonverbal 
signs of fear, and, in fact, expect the videos and signs to do a great 
deal of work for them.
    Multiple commenters critiqued the IFR's directive for immigration 
officers to assess non-verbal shaking, crying, or fleeing behaviors as 
``unworkable.'' Commenters further expressed concern that the officers 
would not be able to discern whether newly arrived noncitizens were 
cold, hungry, tired, or exhibiting other unconscious behaviors as 
opposed to a fear of return. Commenters described this directive in the 
IFR as ``absurd and disingenuous,'' writing that it would be more 
effective and accurate for CBP officers to directly ask simple 
questions regarding fear than trying to be ``mind readers.'' Another 
commenter referenced studies and stated that nonverbal cues of fear 
would likely go unheard, reasoning that express manifestations of fear 
are being ignored.
    Several commenters recommended requiring CBP officers to ask, in a 
language understood by the noncitizen, one question regarding whether 
they have a fear of return.
    Many commenters cited research--including a 2022 study by the 
Center for Gender & Refugee Studies that interviewed 97 families 
expelled during a previous use of a manifestation approach while the 
Title 42 public health Order was in effect--that requiring 
manifestation lowers the rate of noncitizens receiving fear screenings. 
Commenters stated that human rights monitors have documented that using 
the manifestation approach has resulted in ``CBP failing to refer 
people who expressed a fear of return to the required fear screening 
interviews,'' and that the ``shout'' test under the Title 42 public 
health Order resulted in the erroneous return of many people, including 
women and children, to situations of danger. Another commenter observed 
lower statistics of credible fear interviews granted to Haitian 
nationals when given the ``shout test'' at sea by the U.S. Coast Guard 
(``USCG'') compared to the historical rate of credible fear interviews 
granted to migrants encountered by immigration officials at land 
borders, when the shout test was not used. Lastly, commenters stated 
that the IFR is already leading to failures in properly referring 
noncitizens for fear interviews.
    In addition, several commenters referenced research \278\ and 
expressed strong concern that CBP officers have a pattern of ignoring 
signs of fear in migrants. They critiqued the Departments' discussion 
and statistics of the likelihood of migrants responding affirmatively 
to asylum questions regardless of a valid fear of return, stating that 
the IFR's preamble does not cite any statistics about noncitizens 
failing to present legitimate fear claims in their interview or account 
for greater numbers of people seeking fear interviews if they are told 
they are available. A commenter stated that the statistics cited by the 
Departments have been directly contradicted by other research findings.
---------------------------------------------------------------------------

    \278\ See, e.g., Ctr. for Gender & Refugee Studies, 
``Manifesting'' Fear at the Border: Lessons from Title 42 
Expulsions, Jan. 30, 2024, https://cgrs.uclawsf.edu/our-work/publications/%E2%80%9Cmanifesting%E2%80%9D-fear-border-lessons-title-42-expulsions.
---------------------------------------------------------------------------

    Similarly, a couple of commenters cited research \279\ that some 
families have been ignored or chastised for requesting asylum, voiced 
concern that CBP officers were hostile and mistreated noncitizens at 
the southern border, and further expressed concerns that under ``the 
Shout Test'' immigration officers have prevented migrants from speaking 
or verbally abused them.
---------------------------------------------------------------------------

    \279\ See, e.g., id.
---------------------------------------------------------------------------

    Response: The Departments disagree that the manifestation standard 
is an unclear, confusing, or inaccurate method of assessing fear of 
return and are confident that the manifestation process in the IFR--
including the use of signage and a video to provide generalized notice 
of the right to seek asylum and protection and the way to raise such a 
claim--is sufficient to provide individuals with an opportunity to seek 
asylum and protection, while also maintaining the efficiency gains 
discussed above. During the time that the manifestation process has 
been in place under the IFR, there have been higher rates of 
manifestation than when the standard was recorded and tracked for 
family units under the Title 42 public health Order, and DHS is 
referring on average more than 300 individuals in DHS custody for 
credible fear interviews each day.\280\
---------------------------------------------------------------------------

    \280\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (IFR ERCF tab).
---------------------------------------------------------------------------

    The Departments acknowledge that immigration officers have 
historically provided advisals regarding the credible fear process and 
ascertained a noncitizen's fear through affirmative questioning, 
through use of the Form I-867A and Form I-867B, and that removing these 
questions is a significant change. Thus, the Departments acknowledge 
that the manifestation process is, in the context of expedited removal, 
a new process both for officers and agents and for noncitizens. 
However, the Departments disagree that USBP agents and CBP officers are 
not equipped or trained to properly identify individuals who are 
vulnerable or who indicate or manifest fear. When implementing this 
process, agents and officers draw on their longstanding experience and 
practice observing and interacting with individuals, including 
observing any indications or behaviors of concern. Immigration officers 
have implemented the regulatory and statutory standards governing 
expedited removal since it was implemented in 1997, and, as noted 
above, they have had guidance regarding the treatment of noncitizens 
processed under these provisions since that time.
    Additionally, CBP provided guidance to its frontline workforce 
implementing the IFR delineating how fear can be manifested by a 
noncitizen in many different ways, including verbally, non-verbally, or 
physically; CBP also provided examples and indicators. Such indicators 
include statements of fear; statements that the noncitizen was 
previously harmed in their home country or country of removal; evidence 
of physical injury consistent with abuse (e.g., bruises, scars); 
evidence of self-harm; or non-verbal actions that may indicate fear 
such as hysteria, trembling, shaking, unusual behavior, changes in tone 
of voice, incoherent speech patterns, panic attacks, or an unusual 
level of silence.
    Furthermore, the recent guidance on IFR implementation provides 
that, if officers or agents are in doubt, or if ambiguity exists as to 
whether a noncitizen's statement, actions, or behavior constitute a 
manifestation of fear, expression of fear, or expression of an intent 
to seek asylum or related protection, then officers and agents should 
refer the matter to a supervisor.\281\ And, as noted above, existing 
guidance and CBP practice is to err on the side of caution and on the 
side of referring an individual to USCIS.\282\
---------------------------------------------------------------------------

    \281\ See id.; see also CBP, Off. of Field Operations, Muster, 
Documenting Noncitizen Asylum or Fear Claims or Fear Manifestations 
(July 18, 2024).
    \282\ See Memorandum for Dirs., Field Operations, & Dir., 
Preclearance Operations, Off. of Field Operations, from Acting Exec. 
Dir., Admissibility & Passenger Programs, Off. of Field Operations, 
CBP, Re: Processing Expedited Removal Cases & attach. (Muster); 
Memorandum for Chief Patrol Agents, Tucson & Laredo Sectors, from 
David V. Aguilar, Chief, USBP, Re: Expedited Removal Policy (Aug. 
11, 2004); Memorandum for Mgmt. Team, Reg'l Dirs., et al., from Off. 
of the Dep. Comm'r, Immigr. & Naturalization Serv., DOJ, Re: 
Implementation of Expedited Removal (Mar. 31, 1997).

---------------------------------------------------------------------------

[[Page 81238]]

    The Departments also disagree with the commenters' concerns that 
the manifestation of fear standard is difficult and inappropriate, 
confusing, or unfair for agents and officers to apply, or that agents 
and officers are ill-equipped to determine the nature of an 
individual's fear claim. Indeed, USBP agents and CBP officers, as 
immigration officers, are intimately familiar with the processing of 
individuals, including vulnerable populations or populations requiring 
additional care, safety, security, or medical assistance, and with 
recognizing the needs of such individuals. As a result of their 
experience and training, CBP immigration officers (both USBP agents and 
CBP officers) have skills and expertise in interacting with individuals 
and observing human behavior and in determining appropriate follow-up 
steps with regards to any behaviors or indicators of concern. See 89 FR 
at 48744. For instance, upon encountering a group of individuals who 
purport to be a family, USBP agents will observe the individuals to 
determine whether they evidence typical familial behavior or whether 
there are any concerns about the validity of the asserted familial 
relationship or the safety of any children in the group. Id. 
Additionally, agents and officers frequently encounter individuals who 
may be vulnerable, including those in physical or medical distress or 
in need of humanitarian care, as well as those who may be seeking 
protection in the United States. Id. Agents and officers can similarly 
use such skills and experiences to identify any manifestations of fear. 
Id. DHS believes that this experience, coupled with guidance, helps 
agents and officers effectively identify noncitizens with potential 
fear or asylum claims under a manifestation approach. Id.
    The Departments acknowledge that interactions between agents and 
officers and noncitizens occur in the context of an immigration 
inspection and interview and in a custodial environment, but disagree 
with commenters' suggestion that the interview is ``adversarial'' in 
such a manner that noncitizens would be unlikely to manifest fear or 
officers would have difficulty recognizing manifestations of fear. Such 
immigration inspections and interviews are conducted for the sole 
purpose of determining an individual's admissibility under the 
immigration laws of the United States and ensuring that they are 
processed accordingly.\283\ In addition, the Departments note that, 
when in use, the Form I-867A and Form I-867B are also completed in this 
same context. During such an immigration inspection, officers and 
agents have face-to-face interactions with the noncitizen and thus have 
a chance to closely observe the individual who is being inspected, to 
identify those who may have a fear of return or indicate an intention 
to seek fear-based relief or protection.\284\ The Departments reiterate 
that agents and officers do not assess the merits of an individual's 
claim of fear. The Departments acknowledge that fear can be manifested 
in many different ways, including verbally, non-verbally, or 
physically, and that when doubt or ambiguity exists, officers and 
agents should involve supervisors or managers to ensure appropriate 
decisions are made. The Departments also reiterate that USBP agents and 
CBP officers do not determine whether a noncitizen is excepted from the 
rule's limitation on asylum eligibility. Such decisions are made by a 
USCIS AO or, for those processed with an NTA, by an IJ. See 8 CFR 
208.35(b)(1); 8 CFR 1208.35(a). Agents and officers are responsible for 
identifying whether an individual has manifested or expressed a fear 
and, if so, referring them for further consideration by an AO.
---------------------------------------------------------------------------

    \283\ See, e.g., INA 235(a)(3), 8 U.S.C. 1225(a)(3); 8 CFR 
235.1; 8 CFR 235.3(a).
    \284\ See CBP, Securing the Border IFR and Presidential 
Proclamation CBP Manifesting Fear Guidance.
---------------------------------------------------------------------------

    Additionally, the Departments note that, under the manifestation 
standard, a noncitizen is not required to verbally express or state 
that they have a fear. Contrary to commenters' concerns, the IFR does 
not impose a ``shout test.'' As outlined in the IFR, manifestations of 
fear may be verbal, non-verbal, or physical. 89 FR at 48739-45. Thus, a 
migrant can manifest a fear through an unconscious behavior. Id. at 
48744. The Departments acknowledge and appreciate that some noncitizens 
may have difficulty volunteering a fear of return to agents and 
officers during processing. However, certain migrants may also have 
difficulty volunteering their fear in response to the previous 
questions on the Form I-867B, given that the questions are asked by 
immigration officers in the context of the immigration process. 
Additionally, for noncitizens who may be hesitant to answer questions 
or to affirmatively express a fear, the manifestation standard and CBP 
officer and agent training and experience, as well as observations from 
the inspection itself, take into account physical and non-verbal 
manifestations, some of which may be unconscious by the noncitizen.
    The Departments acknowledge a two-page document cited by commenters 
regarding the prior use of a manifestation standard under the Title 42 
public health Order.\285\ The document asserts that from June through 
October 2022, advocates interviewed at least 97 families expelled to 
cities along the SWB, of whom over half reported that they had verbally 
expressed a fear of return and nearly three-quarters reported having 
non-verbally expressed a fear. According to the document, multiple 
migrants sought to raise fear claims with ``CBP officers'' but such 
officers did not allow them to speak and ultimately expelled them to 
Mexico. The Departments lack a basis to independently evaluate the 
advocates' methodology (which is largely undescribed) or the accuracy 
of migrants' claims as described in the document. At the same time, the 
Departments note that most of the specific allegations in the document 
involve behavior--officers not allowing noncitizens to speak--that 
would be a violation of CBP policy under the Title 42 public health 
Order, under this rule,\286\ and under the Form I-867A/B approach that 
applies when emergency border circumstances are not in place.\287\ For 
this reason, and due to the distinctions between processing under the 
IFR and during the implementation of the Title 42 public health Order 
described below, DHS does not regard this study as providing persuasive 
evidence that the manifestation approach of the IFR and this rule has 
not been and will not be effective.
---------------------------------------------------------------------------

    \285\ See Ctr. for Gender & Refugee Studies, ``Manifesting'' 
Fear at the Border: Lessons from Title 42 Expulsions (Jan. 30, 
2024), https://cgrs.uclawsf.edu/our-work/publications/%E2%80%9Cmanifesting%E2%80%9D-fear-border-lessons-title-42-expulsions.
    \286\ See, e.g., CBP, Securing the Border IFR and Presidential 
Proclamation CBP Manifesting Fear Guidance (requiring officers and 
agents to refer any noncitizen who manifests a fear for a credible 
fear interview with USCIS).
    \287\ See Memorandum for Dirs., Field Operations, & Dir., 
Preclearance Operations, Off. of Field Operations, from Acting Exec. 
Dir., Admissibility & Passenger Programs, Off. of Field Operations, 
CBP, Re: Processing Expedited Removal Cases & attach. at 1 (Muster); 
Memorandum for Chief Patrol Agents, Tucson & Laredo Sectors, from 
David V. Aguilar, Chief, USBP, Re: Expedited Removal Policy at 7-8 
(Aug. 11, 2004).
---------------------------------------------------------------------------

    The Departments disagree with commenters' implicit suggestion that 
the implementation of the IFR is substantially similar to the

[[Page 81239]]

implementation of the manifestation standard used during the Title 42 
public health Order, such that experience under Title 42, including in 
the study mentioned above, demonstrates that the manifestation standard 
is inherently unreliable. As an initial matter, the manifestation under 
the IFR occurs in the context of immigration processing under title 8, 
rather than in the context of processing and expulsion under Title 42. 
Immigration processing is, as a general matter, a more complex process 
than the processing that occurred under Title 42, with noncitizens 
generally interacting with immigration officers during processing for a 
longer period of time than occurred during processing for expulsion. 
For example, the processing of an individual for expulsion under Title 
42 took, on average, less than 30 minutes, as compared to, under the 
current processes under the IFR, approximately 1.5 hours. Therefore, 
noncitizens have a longer period of time to interact with the 
processing agents or officers, and potentially manifest a fear. In 
addition, noncitizens processed under title 8 procedures under the IFR 
provisions are generally in CBP custody for longer than under Title 42, 
and can manifest a fear at any time in DHS custody.
    Additionally, based on best practices and lessons learned during 
the implementation of the Title 42 public health Order, the Departments 
have implemented several operational advancements and information 
sharing developments. Under the IFR and this rule, noncitizens have 
access to signage explaining that they may manifest fear during their 
time in DHS custody. Noncitizens in large-capacity facilities can also 
view videos explaining the manifestation standard and the general 
process they are receiving. 89 FR at 48741-42. As noted above, during 
implementation of the public health Order under Title 42, the DHS 
process was more expedited. This resulted in a narrower window of 
opportunity for a noncitizen to manifest a fear in DHS custody. This 
difference can be seen through the higher number of noncitizens 
manifesting fear under the IFR. Since the implementation of the IFR, 27 
percent of noncitizens encountered between POEs at the SWB have 
manifested fear while in DHS custody.\288\ Between June 3, 2022, and 
May 11, 2023, when the use of the manifestation standard for 
noncitizens encountered and subject to the Title 42 public health Order 
was tracked, less than 7 percent of individuals in family units 
processed under the Title 42 public health Order nationwide were 
recorded as having manifested a fear in USBP custody and were, in 
general, excepted from the Title 42 public health Order. As evidenced 
by the significantly higher manifestation rate under the IFR as 
compared to what had been recorded during implementation of the Title 
42 public health Order, the two circumstances are not comparable. 
Noncitizens encountered along the SWB under the IFR have manifested a 
fear and been referred to an AO for a credible fear interview on a much 
more frequent basis. At the same time, as discussed in Section II.A.2 
of this preamble, fear-claim rates remain well below the very high 
rates following the ending of the Title 42 public health Order and 
prior to the IFR. During emergency border circumstances, it is critical 
for the Departments to devote their processing and screening resources 
to those urgently seeking protection while quickly removing those who 
are not. DHS believes that the manifestation standard, rather than 
affirmative questioning, better achieves this balance in emergency 
border circumstances. See 89 FR at 48744.
---------------------------------------------------------------------------

    \288\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    With regards to commenters' concerns that, particularly at large-
capacity facilities, officers and agents may not be able to 
``scrutinize'' noncitizens for nonverbal signs of manifestation of 
fear, the Departments disagree. As acknowledged in the preamble to the 
IFR, CBP has placed signs in its facilities along the SWB advising 
noncitizens of their ability to express or manifest a fear, and has 
placed videos in its larger facilities. 89 FR at 48741-42. DHS 
explained that, at smaller facilities, such videos are not played, but 
officers and agents have had sufficient resources to devote to 
observing individuals to determine if they manifested a fear. Id. at 
48741 n.196. This statement was intended to explain why a video was not 
necessary at such facilities, but is not intended to convey any lack of 
attention to such claims at large-capacity facilities. Indeed, as noted 
above, agents and officers interview and observe noncitizens during 
their immigration inspection and interviews, which occur one-on-one. 
CBP operations at any CBP facilities with noncitizens in custody are 
staffed and operate 24 hours a day. Every CBP officer and agent 
receives annual training on CBP National Standards on Transport, 
Escort, Detention, and Search (TEDS)--which provide standards for the 
custodial conditions in CBP facilities--that ensures every noncitizen 
in CBP custody is monitored for care and safety, including a provision 
requiring officers and agents to ``physically check'' areas where 
noncitizens are held ``on a regular and frequent manner,'' providing 
noncitizens with an opportunity to raise any concerns or needs directly 
with CBP personnel conducting the checks.\289\ Noncitizens in custody 
at CBP facilities are generally under continuous and direct supervision 
by multiple personnel and may seek assistance or ask questions of any 
of those individuals supervising their holding areas at any time. See 
89 FR at 48744. DHS is confident that, during this time, even in large-
capacity facilities, agents and officers have sufficient experience and 
expertise to identify manifestations or expressions of fear. Likewise, 
noncitizens in custody at ICE facilities may seek assistance or ask 
questions and are supervised such that officers, who have experience 
and expertise in these interactions, can identify manifestations or 
expressions of fear. It is important to note that a noncitizen does not 
have a finite or limited number of opportunities to manifest fear, but 
rather may manifest fear at any point while in DHS custody.
---------------------------------------------------------------------------

    \289\ CBP, National Standards on Transport, Escort, Detention, 
and Search (TEDS) 4.6, at 16 (Oct. 2015), https://www.cbp.gov/document/directives/cbp-national-standards-transport-escort-detention-and-search.
---------------------------------------------------------------------------

    Further, regarding comments that express concerns and reference 
reports concluding that the manifestation standard has resulted in 
failures to refer noncitizens for a required fear interview, and 
comments recommending that, given this, officers and agents should ask, 
at a minimum, a question about fear in the noncitizen's native 
language, the Departments are aware of these studies and their 
conclusions. The Departments acknowledge that, under the manifestation 
approach outlined in this rule, there may be some noncitizens who have 
a fear of persecution or a fear of return, but who are not referred for 
a credible fear interview. However, the Departments do not believe that 
such a possibility is unique to the manifestation standard, and, in any 
event, DHS has taken steps, including posting signs and videos and 
providing guidance to its personnel, to help mitigate this possibility. 
Having considered the reports commenters cite, as well as the 
mitigating steps DHS has taken and the lessons learned from DHS's 
experiences during processing under the Title 42 public health Order, 
the Departments continue to believe that the manifestation standard is

[[Page 81240]]

appropriate in the circumstances outlined in the IFR and this rule. 
Moreover, as explained earlier in this response, the Departments' 
implementation of the IFR has resulted in a fear-claim rate 
substantially higher than the rate observed under the Title 42 public 
health Order, further suggesting that the circumstances from other 
operational contexts, including those studied in earlier research, may 
be inapposite.\290\ DHS acknowledges that asking a single question 
about fear would be an alternative to the approach adopted in this IFR. 
However, DHS declines to implement such an option, as it would be 
subject to the same concerns that DHS outlined in the preamble to the 
IFR with regards to a short, individualized advisal. As noted in that 
preamble, DHS has determined that, during times of emergency border 
circumstances, a short, individualized advisal would be unlikely to 
convey information more effectively than signs and videos. See 89 FR at 
48744. In particular, the Departments assessed that if an advisal could 
be developed that was short enough to avoid unduly lengthening 
processing times in the current emergency situation, such an advisal 
would be unlikely to convey information more effectively than the 
existing signs and videos, and such an advisal would still have the 
suggestiveness problems of the current system. The Departments assess 
that asking a single question--particularly in the context of the 
expedited removal process under the IFR where there are no 
individualized advisals provided--would likely present the 
suggestiveness problems of the current system. DHS thus declines to 
implement this change.\291\
---------------------------------------------------------------------------

    \290\ As noted in the IFR, the manifestation standard is used by 
the USCG, a DHS component, to determine whether an at-sea protection 
screening interview is required for migrants interdicted at sea. See 
89 FR at 48744. Although the Departments believe these other uses 
support the view that a manifestation standard can be effective, 
having implemented the IFR's manifestation standard and observed the 
results of that standard, the Departments now believe that the 
difference between the operational contexts limits the usefulness of 
the direct comparison as suggested by some commenters.
    \291\ As noted in the preamble to the IFR, the Departments 
acknowledge that there are some studies articulating that the Form 
I-867A and Form I-867B provide important protections. As explained 
in the IFR, DHS disagrees with these studies to the extent that they 
conclude that individualized advisals and affirmative questions are 
not suggestive, based on DHS's longstanding experience with this 
process. Indeed, such studies are now nearly two decades old and 
were done at a time when, as described above, the ER process was 
very different from what it is now. Additionally, given that the 
studies do not account for the signs, videos, and other means of 
providing information under the IFR's approach, DHS does not believe 
they are particularly probative as a means of assessing the 
effectiveness of this approach.
---------------------------------------------------------------------------

    To the extent that there are allegations that an agent or officer 
ignored expressions or manifestations of fear by a noncitizen, such 
conduct is contrary to DHS policies and practices, and would be treated 
as such. The Departments again note that, to the extent it exists, such 
employee misconduct would not be unique to the implementation of this 
rule. Nor do such claims provide a persuasive reason to depart from the 
approach this rule adopts to address emergency border circumstances. As 
already explained, DHS has provided guidance to CBP and ICE agents and 
officers on how to identify manifestations of fear; that guidance 
directs them to refer individuals who manifest fear for a credible fear 
screening, including instructing them to err on the side of referral. 
89 FR at 48744. If agents or officers disregard those instructions--
which could occur with or without this rule--DHS has procedures in 
place for reporting misconduct.\292\ DHS relies on these procedures 
generally to ensure that personnel are following applicable law and 
guidance, and DHS assesses that these procedures are generally 
effective. If allegations of misconduct are found to be substantiated 
and misconduct is found, such findings may lead to, for instance, 
disciplinary action against involved personnel and referral for 
criminal charges if a determination is made that any laws were 
violated. In addition, regardless of whether any such findings are 
substantiated, DHS may impose additional training and policy measures 
consistent with the rule's provisions.
---------------------------------------------------------------------------

    \292\ CBP takes allegations of employee misconduct very 
seriously, and allegations of serious misconduct are investigated by 
CBP's Office of Professional Responsibility (OPR). CBP, Office of 
Professional Responsibility, https://www.cbp.gov/about/leadership-organization/professional-responsibility (last modified Mar. 29, 
2024). Allegations of misconduct by a CBP employee or contractor can 
be sent to CBP OPR's Intake Center via email: 
<a href="/cdn-cgi/l/email-protection#c389acaaadb78aadb7a2a8a683a0a1b3eda7abb0eda4acb5"><span class="__cf_email__" data-cfemail="450f2a2c2b310c2b31242e20052627356b212d366b222a33">[email protected]</span></a>, or via phone: 1-877-2INTAKE (246-8253), 
Option 5. Similarly, ICE's Office of Professional Responsibility 
(``OPR'') takes employee misconduct very seriously and manages and 
investigates allegations of employee misconduct and oversees a 
variety of other integrity programs that protect the public trust 
and preserve the highest standards of integrity and accountability 
across the agency. ICE, Office of Professional Responsibility, 
https://www.ice.gov/about-ice/opr (last updated May 15, 2024). To 
promote integrity, mitigate risk, and uphold the agency's 
professional standards, the OPR-led Integrity Coordination Center 
receives and assesses information and refers any allegations of 
employee misconduct to appropriate offices for investigation, if 
necessary. ICE, Office of Professional Responsibility, https://www.ice.gov/about-ice/opr (last updated May 15, 2024). This process 
ensures that allegations of criminal or administrative misconduct 
against ICE personnel are properly assessed and thoroughly 
investigated. ICE, Office of Professional Responsibility, https://www.ice.gov/about-ice/opr (last updated May 15, 2024). Allegations 
of misconduct by an ICE employee or contractor can be sent to ICE 
OPR's Integrity Coordination Center via email: 
<a href="/cdn-cgi/l/email-protection#a3eae0e6ecf3f1eacdd7c2c8c6e3cac0c68dc7cbd08dc4ccd5"><span class="__cf_email__" data-cfemail="377e74727867657e5943565c52775e545219535f4419505841">[email protected]</span></a>, via phone: 1-833-4ICE-OPR (833-442-3677), 
or via the ``File a Complaint'' web link. ICE, Integrity 
Coordination Center--Intake Form, https://www.ice.gov/webform/opr-contact-form (last updated Jan. 9, 2024).
    Additionally, the DHS Office of Inspector General and the DHS 
Office for Civil Rights and Civil Liberties are also available for 
the public, including previously removed noncitizens, to provide 
feedback and make complaints involving DHS employees, including 
officers and agents, or programs; to submit allegations of civil 
rights and civil liberties violations; and to submit other types of 
grievances. See, e.g., DHS, Off. of Inspector Gen., Hotline, https://www.oig.dhs.gov/hotline (last visited Sept. 21, 2024); UDHS, Office 
for Rights and Civil Liberties, https://www.dhs.gov/office-civil-rights-and-civil-liberties (last visited Sept. 21, 2024).
---------------------------------------------------------------------------

    Concerns about misconduct by individual employees are further 
mitigated by the reality that, as explained above, noncitizens do not 
have just one chance to manifest fear while in CBP or ICE custody: 
Noncitizens will typically interact with multiple agents and officials, 
and they can manifest fear to any of them. Noncitizens will have these 
opportunities, moreover, after being exposed to signs and videos 
explaining that they can manifest fear. From June 5, 2024, through 
August 31, 2024, the median processing time from encounter through 
repatriation for a case with no fear claims was 6 days.\293\
---------------------------------------------------------------------------

    \293\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    Moreover, commenters have provided no evidence that there is a 
widespread problem of CBP officers and agents ignoring fear claims 
under the IFR. As described above, there are a number of mechanisms 
within the Department for such complaints and concerns to be raised, 
and CBP is not aware of any substantiated allegations of misconduct 
raised through these channels. And the data showing a manifestation 
rate of 27 percent under the IFR--though not alone proving a negative 
or showing that no fear claims are being missed--indicate that officers 
and agents are following their guidance and reporting manifestations of 
fear in a large number of cases. For all these reasons, DHS does not 
believe the commenters' arguments provide a reason to depart from the 
rule's approach.
    Comment: A few commenters reasoned that because the manifestation 
of fear approach does not require documentation, unlike affirmative 
questioning, the IFR removes appropriate accountability. One commenter 
described the change to using manifestation as ``a dangerous reversal 
of a procedural safeguard that

[[Page 81241]]

has been implemented to ensure the United States' compliance with its 
international obligations,'' expressing concern that other safeguards 
are already being removed. A commenter expressed concern that the 
Departments have eliminated the Form I-867A and Form I-867B without 
replacing them with any other documentation, which they wrote could 
make it impossible to have any record of missed viable claims for 
asylum or the total extent of any such errors. Another commenter 
asserted that the previous system of requiring immigration officials to 
complete and sign two forms incentivized officials to be honest and 
critiqued the manifestation approach as leaving no paper trail. Another 
commenter stated that the manifestation standard would worsen already 
problematic interactions between CBP officers and noncitizens. The 
commenter referenced a report \294\ finding that CBP officers had an 
``alarming'' rate of irregularities and non-conforming practices when 
assessing fear of return, including failing to read the required script 
for the Form I-867A, failing to record answers correctly, and using 
questionable interpretation practices. Another commenter discussed 
reports finding that many interviews conducted by CBP and ICE were 
marked by inaccuracies, mistranslations, and fabricated information, as 
well as research showing that in most situations when migrants stated 
that CBP agents did not ask about their fear of return, the immigration 
records showed instead that this question had been asked and answered.
---------------------------------------------------------------------------

    \294\ See U.S. Comm'n on Int'l Religious Freedom, Barriers to 
Protection: The Treatment of Asylum Seekers in Expedited Removal, at 
19 (Aug. 2, 2016), https://www.uscirf.gov/publications/barriers-protection-treatment-asylum-seekers-expedited-removal.
---------------------------------------------------------------------------

    Response: The Departments disagree that the manifestation of fear 
standard removes accountability or eliminates official documentation of 
a fear claim. As an initial matter, while CBP officers and agents are 
not required to provide noncitizens with an M-444 and do not complete a 
Form I-867A or Form I-867B when the IFR's provisions are in effect, 
fear claims are documented in the relevant electronic systems. Guidance 
issued to both USBP and the OFO requires that, when a noncitizen 
subject to the Proclamation and the IFR is being processed for 
expedited removal, and manifests a fear, that noncitizen is to be 
processed under a particular disposition code in the electronic 
processing system.\295\ This code is unique to those who are processed 
for expedited removal and who manifest a fear. Additionally, while 
noncitizens processed for expedited removal under the IFR procedures 
are not required to be provided the Form M-444, they continue to be 
provided information about the credible fear process, through a tear 
sheet called Information about Credible Fear Interview and by video, 
and they are provided the opportunity to consult with an individual of 
their choosing.\296\ CBP facilities also have signage and, in some 
cases, videos, providing notice to all noncitizens in custody that, if 
they have a fear of return, they should inform an agent or officer. 89 
FR at 48741. This manifestation may occur at any point during a 
noncitizen's time in CBP custody, and if such a claim is made, it must 
be documented in the relevant electronic system at that time.
---------------------------------------------------------------------------

    \295\ See Memorandum for All Chief Patrol Agents & All Exec. 
Directorates, from Jason D. Owens, Chief, USBP, Re: Processing 
Guidelines for Noncitizens Described in Presidential Proclamation, 
Securing the Border and Interim Final Rule, Securing the Border at 
4-5 (June 4, 2024); Memorandum for Exec. Dirs., Headquarters, & 
Dirs., Field Operations, Off. of Field Operations, from Ray 
Provencio, Acting Exec. Dir., Admissibility & Passenger Programs, 
Off. of Field Operations, CBP, Re: Implementation of Presidential 
Proclamation and Interim Final Rule, Securing the Border attach. at 
3-5 (June 4, 2024) (Muster).
    \296\ See Memorandum for All Chief Patrol Agents & All Exec. 
Directorates, from Jason D. Owens, Chief, USBP, Re: Processing 
Guidelines for Noncitizens Described in Presidential Proclamation, 
Securing the Border and Interim Final Rule, Securing the Border 4-5 
(June 4, 2024); 6.4.24 USBP Field Guidance ER IFR 1; Memorandum for 
Exec. Dirs., Headquarters, & Dirs., Field Operations, Off. of Field 
Operations, from Ray Provencio, Acting Exec. Dir., Admissibility & 
Passenger Programs, Off. of Field Operations, CBP, Re: 
Implementation of Presidential Proclamation and Interim Final Rule, 
Securing the Border attach. at 4 (June 4, 2024) (Muster).
---------------------------------------------------------------------------

    ICE maintains an electronic system to record case management 
actions for noncitizens, including referrals to an AO and the 
disposition of a noncitizen's credible fear determination.\297\ If a 
noncitizen manifests or expresses a fear after their initial encounter 
with CBP, while in ICE custody, ICE guidance requires officers to refer 
the case to USCIS for a credible fear interview, including having an 
opportunity to consult with an individual of their choosing prior to 
their credible fear interview.\298\
---------------------------------------------------------------------------

    \297\ ICE, Broadcast message for Field Office Directors and 
Deputy Field Office Directors, from Asst. Dir. for Field Operations, 
Re: Procedures for Processing Noncitizens that Fall Under the 
Presidential Proclamation and Interim Final Rule (June 7, 2024) (ICE 
officers are instructed ``to document the Claim Credible Fear, Fear 
Referral package submitted, and all subsequent CF related actions in 
[the electronic system's] Actions and Decisions Tab''); DHS, Privacy 
Impact Assessment for the Enforcement Integrated Database (EID), at 
2, 4 (Dec. 3, 2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-eid-december2018.pdf.
    \298\ ICE, Implementation Guidance for Noncitizens Described in 
Presidential Proclamation of June 3, 2024, Securing the Border, and 
Interim Final Rule, Securing the Border, at 4 (June 4, 2024) (``If 
ERO determines that a noncitizen subject to expedited removal 
manifests a fear of return or expresses an intention to apply for 
asylum or related protection, or expresses a fear of persecution or 
torture, or expresses a fear of return to his or her country or 
designated country of removal, the officer will provide the 
noncitizen with the Information About Credible Fear Interview Sheet 
and refer the noncitizen to USCIS for a credible fear interview.'').
---------------------------------------------------------------------------

    Per applicable guidance, ICE documents any manifestation or 
expression of fear on the Form G-166C, which also verifies that the 
noncitizen has been provided information on the credible fear interview 
process and the specific language in which it was provided.\299\ ICE 
guidance requires that all documentation, including the claim of 
credible fear and USCIS fear referral package, are captured in an 
electronic system of records.\300\
---------------------------------------------------------------------------

    \299\ ICE, Broadcast message for Field Office Directors and 
Deputy Field Office Directors, from Asst. Dir. for Field Operations, 
Re: Procedures for Processing Noncitizens that Fall Under the 
Presidential Proclamation and Interim Final Rule (June 7, 2024).
    \300\ Id.
---------------------------------------------------------------------------

    ICE and CBP utilize the same electronic database system for case 
management of noncitizens and have electronic access to these 
records.\301\ ICE tracks noncitizens transferred from CBP to ICE 
custody who have manifested fear through the same system.\302\ This 
system ensures that information relating to a noncitizen's case, 
including fear manifestation, is properly referred to USCIS.\303\
---------------------------------------------------------------------------

    \301\ DHS, Privacy Impact Assessment for the Enforcement 
Integrated Database (EID), at 2, 4 (Dec. 3, 2018), https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-eid-december2018.pdf.
    \302\ ICE, Broadcast message for Field Office Directors and 
Deputy Field Office Directors, from Asst. Dir. for Field Operations, 
Re: Procedures for Processing Noncitizens that Fall Under the 
Presidential Proclamation and Interim Final Rule (June 7, 2024) 
(``The new processing dispositions [by CBP] can be tracked in the 
ICE [system's] Dashboard . . . by selecting these new processing 
dispositions . . . .''); DHS, Privacy Impact Assessment for the 
Enforcement Integrated Database (EID), at 2, 4 (Dec. 3, 2018), 
https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-eid-december2018.pdf.
    \303\ ICE, Broadcast message for Field Office Directors and 
Deputy Field Office Directors, from Asst. Dir. for Field Operations, 
Re: Procedures for Processing Noncitizens that Fall Under the 
Presidential Proclamation and Interim Final Rule (June 7, 2024) (for 
cases transferred to ICE from CBP after a noncitizen has manifested 
fear, ``[t]he existing automated referral solution using the `Refer 
Credible Fear to USCIS button' in [the electronic system] will be 
available for use . . . [and the automated] functionality will 
function as designed.''); DHS, Privacy Impact Assessment for the 
Enforcement Integrated Database (EID), at 2, 4 (Dec. 3, 2018), 
https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-eid-december2018.pdf.

---------------------------------------------------------------------------

[[Page 81242]]

    With regard to a commenter's concern that the absence of 
affirmative questioning will result in irregularities and non-
conforming practices when assessing fear of return, the Departments 
disagree. The Departments acknowledge that, under the standard outlined 
in this rule, official documentation will indicate if a noncitizen 
expressed or manifested a fear, but will not contain an express similar 
record of a lack of such manifestation. DHS acknowledges that this is a 
change from non-IFR practices, in which a noncitizen's case file will 
reflect that the individual was provided with the Form I-867A advisals 
and will contain the noncitizen's response to the questions in the Form 
I-867B. DHS disagrees that the lack of such documentation under the 
manifestation of fear standard removes accountability from CBP officers 
and agents, incentivizes any falsification of records, or undermines 
the validity of the manifestation process. During immigration 
processing, CBP officers and agents ask a noncitizen a number of 
questions, including about their biographic information, nationality, 
and purpose of travel to the United States. The processing officer or 
agent records the noncitizen's answers to these questions in the 
electronic processing system.\304\ In addition, as noted above, any 
individual who is processed for expedited removal and manifests or 
expresses a fear is processed using a unique code in the electronic 
system.\305\ Officers and agents have an obligation, as law enforcement 
officers and Federal employees, to ensure that the record of a 
particular individual's case file is accurate and complete,\306\ which 
includes any manifestations or expressions of fear. Thus, the lack of 
such a code indicates that the individual did not manifest a fear. 
However, to the extent that an officer or agent failed to accurately 
record a manifestation of fear, the lack of the unique code in the 
noncitizen's file itself would provide a record of that failure--just 
as an inaccurate ``no'' answer to a question on a Form I-867B would if 
a noncitizen actually answered ``yes'' to the question. To the extent 
that commenters are concerned about potential misconduct by officers 
and agents, CBP and ICE take allegations of misconduct very seriously 
and have mechanisms in place to investigate and respond to such 
allegations as discussed above.
---------------------------------------------------------------------------

    \304\ See DHS, Privacy Impact Assessment for the CBP Portal (E3) 
to ENFORCE/IDENT, DHS/CBP/PIA-012, at 1, 3 (July 25, 2012), https://www.dhs.gov/publication/cbp-portal-e3-enforceident (discussing the 
type of information collected from noncitizens and how it is 
recorded in the electronic system).
    \305\ See Memorandum for All Chief Patrol Agents & All Exec. 
Directorates, from Jason D. Owens, Chief, USBP, Re: Processing 
Guidelines for Noncitizens Described in Presidential Proclamation, 
Securing the Border and Interim Final Rule, Securing the Border at 4 
(June 4, 2024); Memorandum for Exec. Dirs., Headquarters, & Dirs., 
Field Operations, Off. of Field Operations, from Ray Provencio, 
Acting Exec. Dir., Admissibility & Passenger Programs, Off. of Field 
Operations, CBP, Re: Implementation of Presidential Proclamation and 
Interim Final Rule, Securing the Border attach. at 3-5 (June 4, 
2024) (Muster).
    \306\ See, e.g., 44 U.S.C. 3101 (providing that federal agencies 
``make and preserve records containing adequate and proper 
documentation of the [official activities] of the agency and 
designed to furnish the information necessary to protect the legal 
and financial rights of the Government and of persons affected by 
the agency's activities'').
---------------------------------------------------------------------------

    Comment: Multiple commenters expressed concern that the IFR and 
``shout test'' approach avoids the provision of necessary 
interpretation by immigration officers and thwarts appropriate language 
access for migrants, often adding that immigration officers are not 
likely to understand expressions of fear in languages other than 
English or Spanish. Commenters further stated that the IFR might 
disproportionately impact speakers of Indigenous languages, who may be 
able to communicate regarding basic information in Spanish but may be 
unable to discuss the complicated matter of a fear-based claim in 
anything other than their native language. Similarly, a commenter 
observed that noncitizens are held in facilities for only a limited 
time and that during that time language needs might be overlooked. In 
the same vein, another commenter expressed concern that the IFR and the 
preamble are not clear regarding how noncitizens who speak languages 
other than English or Spanish are expected to manifest fear, when they 
may be able to communicate only basic identification in English or 
Spanish and Border Patrol agents are not incentivized to seek an 
interpreter in the noncitizen's language.
    Response: The Departments disagree with commenters expressing a 
belief that immigration officers are not likely to understand 
expressions of fear in languages other than English or Spanish and that 
they are not incentivized to seek an interpreter. As noted, noncitizens 
are not required to verbally express or state a fear. A fear can also 
be manifested non-verbally or physically. In addition, CBP has legal 
and policy obligations to provide language access services and 
translation and has long recognized the importance of effective and 
accurate communication between CBP personnel and the public. Ensuring 
effective communication with all persons, including limited English 
proficiency (``LEP'') persons, facilitates CBP's mission.
    It is the policy of CBP to take reasonable steps to provide LEP 
persons with meaningful access, free of charge, to its operations, 
services, and other conducted activities and programs without unduly 
burdening the Agency's fundamental mission.\307\ This policy applies to 
all methods of communication--e.g., verbal (including telephone); 
correspondence (including emails); websites; newsletters; community 
engagement activities; and flyers, posters, pamphlets, and other 
documents explaining CBP programs.\308\ This policy also applies to 
interactions with the public, including law enforcement encounters 
(e.g., questioning, processing, etc.).\309\ As a result of and related 
to these policy obligations, CBP agents and officers have extensive 
experience and training in identifying whether an individual requires a 
translator or interpreter or is unable to understand a particular 
language. In addition, CBP facilities have ``I Speak'' signs, which are 
signs that assist literate individuals to identify a preferred language 
from one of over 60 possible languages.\310\ Upon implementation of the 
IFR, signs were posted in areas of CBP facilities where individuals are 
most likely to see those signs, instructing individuals that, in 
addition to being able to inform the inspecting immigration officers of

[[Page 81243]]

urgent medical or other concerns, they should inform the inspecting 
immigration officer if they have a fear of return, and that, if they 
do, they will be referred for a screening. 89 FR at 48741. Moreover, in 
CBP's large-capacity facilities--where the vast majority of individuals 
subject to expedited removal undergo processing--a short video 
explaining the importance of raising urgent medical concerns, a need 
for food or water, or fear of return is shown on a loop in the 
processing areas and will also be available in commonly-spoken 
languages. To the extent that noncitizens do not speak one of these 
languages, CBP provides language assistance services consistent with 
CBP's Language Access Plan.\311\ Furthermore, individuals who are 
unable to read the signs or communicate effectively in one of the 
languages in which the signs and videos are presented will be read the 
contents of the signs and videos in a language they understand.
---------------------------------------------------------------------------

    \307\ See, e.g., CBP Directive 2130-031, Roles and 
Responsibilities of U.S. Customs and Border Protection Offices and 
Personnel Regarding Provision of Language Access (Dec. 4, 2018); 
CBP, Supplementary Language Access Plan (2020), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
    \308\ See, e.g., CBP Directive 2130-031, Roles and 
Responsibilities of U.S. Customs and Border Protection Offices and 
Personnel Regarding Provision of Language Access (Dec. 4, 2018); 
CBP, Supplementary Language Access Plan (2020), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
    \309\ See, e.g., CBP Directive 2130-031, Roles and 
Responsibilities of U.S. Customs and Border Protection Offices and 
Personnel Regarding Provision of Language Access (Dec. 4, 2018); 
CBP, Supplementary Language Access Plan (2020), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
    \310\ See CBP, Language Access Plan 7 (2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; DHS, I Speak . . . Language Identification Guide, 
https://www.dhs.gov/sites/default/files/publications/crcl-i-speak-poster-2021.pdf (last visited Sept. 3, 2024); DHS, I Speak . . . 
Indigenous Language Identification Poster, https://www.dhs.gov/sites/default/files/publications/Habla%20Poster_12-9-16.pdf (last 
visited Sept. 3, 2024); see also DHS, DHS Language Access Resources 
(July 17, 2023), https://www.dhs.gov/publication/dhs-language-access-materials.
    \311\ See CBP, Language Access Plan (2016), https://www.dhs.gov/sites/default/files/publications/final-cbp-language-access-plan.pdf; 
CBP, Supplementary Language Access Plan (2020), https://www.dhs.gov/sites/default/files/publications/cbp-updated-language-access-plan-2020.pdf.
---------------------------------------------------------------------------

    Comment: One commenter expressed concern that, as a result of the 
signs and videos in CBP facilities advising migrants of their ability 
to manifest or express a fear, noncitizens are ``in essence . . . 
coached'' by DHS with regard to manifesting fear.
    Response: With regard to this concern that the existence of signs 
and videos amount to DHS ``coaching'' migrants with regards to 
manifesting or expressing a fear, the Departments are cognizant that, 
for some individuals, such messaging may result in migrants expressing 
or manifesting a fear when they otherwise would not. However, as 
explained in the preamble to the IFR, DHS adopted the approach outlined 
in this rule--a manifestation standard, coupled with a general notice 
of the right to express or manifest a fear--in an effort to mitigate 
this potential, compared with the existing practice of asking 
affirmative questions. See 89 FR at 48743-44. DHS believes that the 
approach taken in this rule appropriately reflects and accounts for DHS 
operational needs while protecting noncitizens' ability to seek 
protection in the United States.
d. Trauma Impacting Manifestation and Vulnerable Populations
    Comment: Many commenters expressed concern that noncitizens have 
endured significant trauma en route to the United States or are under 
stress after escaping harm and ``might not be able to explicitly state 
their fears'' and, thus, would fail the manifestation requirement. One 
commenter pointed out that trauma does not always present with the 
physical cues identified in the IFR, such as ``shaking, crying, or 
signs of physical injury.'' The commenter stated that the relevant 
USCIS Training Module ``explains that survivors of severe trauma may 
appear emotionally detached''; the commenter wrote that removing an 
affirmative individualized explanation of the process makes it even 
harder for survivors to pursue protection for which they are entitled 
to apply. Other commenters similarly observed that people who have 
suffered trauma ``often have great difficulty raising their fears of 
return in non-confidential group settings'' and might be hesitant to 
disclose their fear to armed, uniformed officials. One commenter 
expressed concern that many migrants have fled violence at the hands of 
government officials and would have difficulty volunteering their fear 
of return to uniformed CBP agents who are not asking questions about 
their fear but about other aspects of their situation, while another 
commenter observed that ``all people [seeking] asylum remain 
traumatized, and very few are able or prepared to tell their full story 
even if they understand the consequences of the [credible fear 
interview] process.'' Commenters also asserted that noncitizens may not 
understand the importance of their first encounter with a government 
official or may believe they will have an opportunity to raise their 
claim later in the process.
    Response: The Departments acknowledge that many noncitizens 
arriving in CBP custody may have experienced trauma of some kind and 
that being taken into immigration custody may exacerbate some of this 
trauma. The Departments also acknowledge that it may be difficult for 
some noncitizens to articulate details of their fear claim to CBP 
officers and agents during processing, and may, in general, have 
negative reactions to law enforcement officials in uniform. On this 
point, however, the Departments note that, during CBP processing, the 
relevant factor determining whether a noncitizen is referred to USCIS 
is whether the noncitizen manifests a fear. They are not required to, 
nor expected to, articulate the full scope of their fear or the 
rationale behind it. Indeed, CBP agents and officers do not determine 
the validity of any fear claim. Additionally, to the extent that an 
individual may react negatively to a CBP officer or agent in uniform, 
such concerns are not limited to the process under the IFR and would 
ostensibly apply to any screening process implemented by the 
Departments. CBP has taken steps over the past several years to 
integrate trauma-informed care for all persons in custody, with a 
particular focus on UCs.\312\ In particular, in CBP holding facilities, 
the agency has taken steps to ensure that processing procedures are 
informed by the potential for trauma experienced by individuals in 
custody, with a particular emphasis on providing a sense of safety and 
security, providing caregivers for children in custody and increased 
custodial oversight, increasing medical standards for individuals in 
CBP custody, providing regular orientation and assistance, and 
providing activities and recreation for children.\313\ In addition, CBP 
has taken steps specific to the credible fear process, for those going 
through the process in CBP custody, to protect the privacy of 
noncitizens during their interviews, where noncitizens may discuss 
traumatic situations. These interviews occur in confidential and 
private phone booths intended for use both for consultation and for the 
credible fear interview. While DHS has taken steps to mitigate the 
impact of such trauma on the effectiveness of the screening process, 
including through its signage and videos, it is not possible to develop 
a screening process that completely eliminates the potential effects of 
past trauma.
---------------------------------------------------------------------------

    \312\ See Memorandum for Exec. Assistant Comm'rs, et al., from 
Chris Magnus, Comm'r, U.S. Customs and Border Protection, Re: 
Directive for U.S. Customs and Border Protection Approach to Trauma-
Informed Care for Persons in Custody at 1 (Apr. 29, 2022).
    \313\ Id. at 2-4.
---------------------------------------------------------------------------

    Comment: Many commenters expressed specific concerns that certain 
vulnerable populations of noncitizens would be at a particular 
disadvantage when seeking protection due to the manifestation 
requirement. Some commenters highlighted survivors of sexual violence, 
political dissidents, and LGBTQI+ populations as particularly 
disadvantaged, in that they may not easily manifest fear in asylum 
settings due to their specific history of oppression. For example, one 
commenter wrote that political dissidents may have a fear and mistrust 
of government officials and be unlikely to reveal their stories to 
immigration officials. They also discussed the significant harm that 
they believe the manifestation requirement will have on members of the 
LGBTQI+ community who are fleeing persecution and thus are

[[Page 81244]]

likely afraid to reveal intimate details of their lives in immigration 
facility spaces that lack privacy and confidentiality.
    Response: Regarding concerns that certain populations, including 
LGBTQI+ individuals, survivors of sexual violence, and political 
dissidents, may not be comfortable expressing the details of their fear 
claim to CBP officers and agents, the Departments reiterate that, at 
the time of CBP processing, agents and officers do not inquire about or 
ask questions about the nature of an individual's fear claim, nor do 
they evaluate the validity of that claim. Thus, such migrants are not 
required to--and are not expected to--provide the details of any fear 
claim, or even the basis for their claim, during CBP processing. In 
addition, the Departments note that concerns regarding the ability of 
these populations to articulate their fear claims are not limited to 
the process under the IFR, and would seemingly apply to any screening 
process implemented by the Departments, including the process utilizing 
the Form I-867A and Form I-867B.
e. A Manifestation of Fear Does Not Sufficiently Align With a Valid 
Claim for Asylum
    Comment: Several commenters critiqued the assertion in the IFR that 
a manifestation of fear aligns with a valid claim for asylum. One 
commenter articulated that the Departments provided no rationale to 
think that the new manifestation of fear approach would only affect 
people with ``frivolous claims'' to asylum and wrote that this 
conclusion was contrary to common sense. A commenter wrote that 
requests for relief or visibly detectable signs of fear are not proxies 
for a strong claim and that other factors, such as coaching by a 
smuggler, might determine whether or not a migrant manifests fear.
    Response: Contrary to the contention contained in the comments, the 
IFR did not state that the manifestation standard will only impact 
those with ``frivolous'' claims. The Departments noted in the preamble 
to the IFR that they believed that the manifestation standard ``is 
reasonably designed to identify meritorious claims even if a noncitizen 
does not expressly articulate a fear of return.'' 89 FR at 48744. This 
decision was informed by the Department's experience that providing the 
affirmative advisals on the Form I-867A and asking the affirmative 
questions on the Form I-867B is, in some cases, suggestive, and by the 
Departments' belief and experience that those with meritorious claims 
will make their fear or desire to request asylum known when given the 
opportunity to do so. However, the Departments also acknowledge that 
any screening mechanism may result in some noncitizens with valid 
claims not being referred for a credible fear interview. Id. at 48743-
44. Nonetheless, the Departments believe that the manifestation 
standard will allow DHS to identify claims that may be meritorious in 
an efficient and effective manner, and that this change remains 
appropriate and necessary in light of the emergency border 
circumstances in which this rule is implemented. Id. at 48744.
f. Noncitizens May Not Understand Their Legal Right To Seek Asylum
    Comment: Multiple commenters wrote that some noncitizens may not 
know that they legally can raise their fears of harm. Other commenters 
wrote that many immigrants would be unable to meet the requirement to 
express their fear of return explicitly, due to lack of access to legal 
counsel or unfamiliarity with the legal requirements. A commenter 
remarked that noncitizens may not understand that the experiences they 
suffered based on gender, racism, or homophobia or transphobia in their 
countries of origin might be grounds for asylum in the United States.
    Some commenters described the signs and videos discussed in the IFR 
as insufficient for communicating the complex concepts of manifestation 
of fear and credible fear screenings. A commenter criticized the 
content and design of the signs as insufficient to inform the reader 
that they forfeit their right to seek asylum if they do not manifest a 
fear of their return. Another commenter noted that the videos would not 
necessarily even be played at smaller facilities.
    Some commenters stated that signs or videos are an inadequate 
systematic approach to reaching a broad pool of noncitizens with valid 
asylum claims, particularly given the limited number of languages used. 
One commenter criticized the ``arbitrary'' limitation on the number of 
languages used for the signs and videos and stated that the IFR at 
footnote 195 (89 FR at 48741 n.195) suggests the signs and videos in 
CBP facilities will be posted in English, Spanish, Mandarin, and Hindi, 
but the ICE Implementation Guidance says only that the signs must be 
posted in English and Spanish without mentioning additional languages 
to be used on the signs themselves.\314\ The comment stated that 
limiting language access to these four languages will clearly leave 
many without any way to understand the procedure they must follow to 
have their claims heard. The commenter stated that neither the 
Implementation Guidance nor the Rule explain how someone who cannot 
understand one of these four languages would know to seek out 
translations in the law library, as indicated in the rule, or if all 
facilities even have a law library.
---------------------------------------------------------------------------

    \314\ ICE, Implementation Guidance for Noncitizens Described in 
Presidential Proclamation of June 3, 2024, Securing the Border, and 
Interim Final Rule, Securing the Border, at 5 (June 4, 2024) 
(``These signs must be posted in English and Spanish. ERO will have 
additional translations available in facility law libraries in the 
following languages. . . .'').
---------------------------------------------------------------------------

    Response: The Departments disagree with the commenters' assertions 
that the signs and videos are not sufficient to notify noncitizens that 
they can manifest a fear. CBP has posted signs in areas of its 
facilities where individuals are most likely to see those signs. In 
addition, CBP has developed a video that is shown on a loop in the 
processing areas of its large-capacity facilities. Commenters are 
correct that these videos are not shown in smaller facilities. However, 
as outlined in the IFR, in such smaller facilities, the signs are 
posted, and officers and agents are generally able to devote 
significant attention to noncitizens in custody and identify either 
fear manifestations or language needs. See 89 FR at 48741 n.196. 
Contrary to commenters' assertion that the list of languages in which 
these signs and videos are provided is arbitrary, they are provided in 
the languages spoken by the most common nationalities encountered by 
CBP and thus will likely be understood by most of the individuals in 
CBP custody who are subject to the rule. And if a noncitizen does not 
speak one of these languages, CBP provides language assistance services 
in accordance with CBP's Language Access Plan.\315\
---------------------------------------------------------------------------

    \315\ See CBP, Supplementary Language Access Plan: Fiscal Years 
2020-2021, at 6 (Feb. 7, 2020), https://www.cbp.gov/about/language-access.
---------------------------------------------------------------------------

    These signs and videos have also been provided in short, concise 
language, rather than explaining the complex details of the credible 
fear process or the standards for addressing a claim for asylum or 
other protection. This is based on DHS' experience that short, concise, 
and simple notifications are most effective for noncitizens in custody 
at CBP facilities, given the nature of CBP facilities and CBP 
operations.\316\ In

[[Page 81245]]

particular, CBP's role in the credible fear screening process is to 
identify those who may be seeking protection in the United States, in 
order to ensure that such individuals are referred to a USCIS AO. This 
role thus requires officers and agents to identify claims of fear, and, 
at this initial stage, err on the side of caution.\317\ In addition, 
noncitizens in CBP custody go through a number of steps and may move 
between various locations in a single facility while completing 
processing and awaiting transfer out of CBP custody. Therefore, it is 
CBP's experience that short, simple signs, which can be noticed and 
read quickly, are more effective for communicating with noncitizens 
than signs with more complex language. Such claims of fear are, under 
non-IFR procedures, identified in part through the questions on the 
Form I-867B. Under this rule, such claims may be manifested or 
expressed to an officer or agent at the time of processing. However, 
this rule does not change the role of either the noncitizen or CBP 
immigration officers in the process--a noncitizen may express or 
manifest a fear, and, once that fear is expressed, CBP refers the 
individual to an AO. Additionally, those noncitizens who are referred 
and who undergo their credible fear interviews in CBP custody are 
provided additional information about the credible fear process, 
through the Information about Credible Fear tear sheet and the USBP 
video explaining the credible fear process.
---------------------------------------------------------------------------

    \316\ See CBP, Directive 2130-031: Roles and Responsibilities of 
U.S. Customs and Border Protection Offices and Personnel Regarding 
Provision of Language Access, at 1, 4-5 (Dec. 4, 2018), https://www.cbp.gov/document/directives/2013-031-roles-and-responsibilities-us-customs-and-border-protection-offices?language=pt.
    \317\ See CBP, Securing the Border IFR and Presidential 
Proclamation CBP Manifesting Fear Guidance, at 1 (``If doubt or 
ambiguity exists as to whether a noncitizen's statement, actions, or 
behavior constitute a manifestation of fear, expression of fear, or 
expression of an intent to seek asylum or related protection, then 
CBP officers and agents should refer the matter to a supervisor.'').
---------------------------------------------------------------------------

    Additionally, for those transferred to ICE custody, commenters are 
correct that initial ICE guidance called for ICE to provide signage in 
English and Spanish,\318\ but ICE subsequently directed the relevant 
facilities to post signage in the same four languages as CBP. In 
addition, as noted by the commenter, ICE has translations available in 
facility law libraries in the following languages: Arabic, Bengali, 
French, Haitian Creole, Hindi, K'iche' (Quich[eacute])/Kxlantzij, 
Portuguese, Punjabi, Romanian, Russian, Simplified Chinese, Turkish, 
and Vietnamese.\319\ Noncitizens in ICE detention facilities have 
access to law libraries for at least five hours per week.\320\ 
Furthermore, ICE has access to an ICE-wide 24/7 language services 
contract for interpretation and translation, and guidance and best 
practices materials for identifying LEP individuals and their primary 
language to secure the necessary interpretation and translation 
services for them.\321\ ICE detention standards provide that oral 
interpretation or assistance shall be provided to any detainee who 
speaks another language in which written material has not been 
translated or who is illiterate.\322\ Each detained noncitizen in an 
ICE detention facility is provided an ICE National Detainee 
Handbook,\323\ which is currently available in 16 languages (English, 
Spanish, Arabic, Bengali, French, Haitian Creole, Hindi, K'iche' 
(Quich[eacute])/Kxlantzij, Portuguese, Pulaar, Punjabi, Romanian, 
Russian, Simplified Chinese, Turkish, and Vietnamese).\324\ The 
Handbook describes the noncitizen's ability to ask for relief from 
removal, including by seeking asylum, and also provides information 
regarding the law library and additional resources available to 
noncitizens.\325\ All ICE detainees have the right to use the 
facility's law library to access approved legal materials.\326\
---------------------------------------------------------------------------

    \318\ Memorandum for Enforcement and Removal Operations Exec. 
Assoc. Dir. Daniel A. Bible, from ICE Deputy Dir. and Senior Off. 
Performing the Duties of the Dir. Patrick J. Lechleitner, Re: 
Implementation Guidance for Noncitizens Described in Presidential 
Proclamation of June 3, 2024, Securing the Border, and Interim Final 
Rule, Securing the Border at 5 (June 4, 2024).
    \319\ Id.
    \320\ ICE, Attorney Information and Resources: Other Legal 
Resources Available to Noncitizens in ICE Custody (Aug. 9, 2024), 
https://www.ice.gov/detain/attorney-information-resources.
    \321\ ICE, Language Access Information and Resources (May 7, 
2024), https://www.ice.gov/detain/language-access (describing 
current language access policies); ICE, ICE Language Access Plan, 
Supplemental Update Covering Fiscal Years 2019 and 2020, at 3-5 
(July 21, 2020), https://www.ice.gov/doclib/about/offices/ero/pdf/iceLanguageAccessPlanSupplemental2020.pdf; ICE, Language Access 
Plan, at 7, 10, 13 (June 14, 2015), https://www.ice.gov/sites/default/files/documents/Document/2015/LanguageAccessPlan.pdf.
    \322\ See, e.g., ICE, 6.3 Law Libraries and Legal Material, at 
422 (revised Dec. 2016), https://www.ice.gov/doclib/detention-standards/2011/6-3.pdf.
    \323\ ICE, Detention Management, National Detainee Handbook 
(Sept. 4, 2024), https://www.ice.gov/detain/detention-management/national-detainee-handbook.
    \324\ Id.
    \325\ ICE, National Detainee Handbook, at 9, 16 (2024), https://www.ice.gov/doclib/detention/ndHandbook/ndhEnglish.pdf (``You have 
the right to ask for relief from removal based on various legal 
grounds if you believe you qualify. These might include cancellation 
of removal, adjustment of status, asylum, withholding of removal, or 
relief under the Convention against Torture and Other Cruel, 
Inhuman, or Degrading Treatment or Punishment. For example, you have 
the right to ask for asylum to stay in the U.S. if you were (or are 
afraid that you will be) persecuted in your native country or a 
country where you last lived because of your race, religion, 
nationality, political opinion, or membership in a particular social 
group.'').
    \326\ Id. at 16.
---------------------------------------------------------------------------

    With regard to concerns that migrants may not know that their 
experience in their home country or on their journey to the United 
States may be grounds for asylum, the Departments note that this has 
always been the case, even under non-IFR credible fear processes. In 
any event, the Departments note that the current signs and videos use 
general language to advise noncitizens that they should tell an officer 
if they ``[f]ear persecution or torture if removed from the United 
States.'' This open-ended language does not require a noncitizen to 
fully understand the legal nuances or complexities of their claim at 
the time it is manifested. CBP therefore believes that the existing 
signs and videos are sufficient.
3. ``Reasonable Probability'' Screening Standard for Statutory 
Withholding of Removal and CAT Protection
    Commenters largely opposed the heightened ``reasonable 
probability'' screening standard for statutory withholding of removal 
and CAT protection for noncitizens subject to this rule. By contrast, 
one commenter supported the ``reasonable probability'' standard for 
this rulemaking and recommended more broadly applying it to all 
withholding of removal credible fear screenings.
    Comment: Commenters stated the ``reasonable probability'' standard 
was too high and would lead to refoulement. Some commenters stated that 
the ``reasonable probability'' standard is inconsistent with the 
statutory ``significant possibility'' standard for asylum in credible 
fear screenings, and that any attempt to change the ``significant 
possibility'' standard was ultra vires. Commenters also explained that 
the higher standard would cause credible fear passage rates to drop 
dramatically and result in the removal of noncitizens with valid asylum 
claims. Commenters stated that Congress intended, as evidenced by the 
plain language of the statute, for the threshold credible fear 
screening standards to be low so as not to exclude legitimate asylum 
seekers, and not to ensure the quick imposition of consequences for 
irregular entry as described in the IFR.
    Similarly, commenters believed the ``reasonable probability'' 
standard was set too close to the ultimate burdens of proof for 
statutory withholding of removal and CAT protection and would require 
excessively specific evidence, particularly as the credible fear 
process is designed to move quickly. Rather, commenters suggested that 
only claims that were ``manifestly unfounded'' should be screened out 
at the credible fear stage and that, as much as possible,

[[Page 81246]]

asylum, statutory withholding of removal, and CAT protection claims 
should be adjudicated in full removal proceedings before an IJ, as such 
claims are complex and require robust processes with more procedural 
safeguards. Commenters noted a number of issues that would make it 
difficult for noncitizens to provide the specific evidence required to 
establish a reasonable probability under this rule, including the 
inability to obtain counsel during the credible fear process; being 
interviewed shortly after arriving in the United States; difficulties 
sharing information due to trauma, exhaustion, or translation 
availability; additional stress placed on vulnerable populations; 
detention status; challenges surrounding placement into the non-
detained Family Expedited Removal Management (``FERM'') process, such 
as challenges involving children attending credible fear interviews and 
difficulty obtaining Indigenous language interpreters; and difficulties 
procuring documentary evidence, expert opinions, or witnesses.
    Response: The Departments disagree with commenters that the rule's 
reasonable probability screening standard for statutory withholding of 
removal and CAT claims is too high and decline to make changes to the 
standard. The Departments believe the reasonable probability screening 
standard is more appropriate in light of the ultimate burden of proof 
for statutory withholding of removal and CAT protection, better 
captures the population of noncitizens with potentially valid claims 
for such protection, and will assist the Departments in addressing the 
emergency border circumstances described in the IFR. See 89 FR at 
48745-46.
    To start, and as discussed in Section III.A.1 of this preamble, the 
Departments note that the ``reasonable probability'' standard neither 
affects nor changes the ``significant possibility'' standard used to 
screen for asylum eligibility, which is set by statute and remains in 
effect for asylum claims in the credible fear process. See INA 
235(b)(1)(B)(v), 8 U.S.C. 1225(b)(1)(B)(v) (a credible fear of 
persecution ``means that there is a significant possibility'' that a 
noncitizen could establish eligibility for asylum). Commenter concerns 
about changes to the statutory ``significant possibility'' standard are 
therefore misplaced.
    While Congress clearly expressed its intent that the ``significant 
possibility'' standard be used to screen asylum claims, section 
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and FARRA section 2242 are 
silent as to what screening procedures are to be employed with respect 
to statutory withholding of removal and CAT protection. The Departments 
therefore have some discretion to articulate the screening standard for 
such claims. And in the context of the emergency border circumstances 
described in the IFR and this rule, the Departments believe the 
``reasonable probability'' screening standard better captures the 
population of noncitizens with potentially valid claims and is more 
appropriate in light of the ultimate burden of proof for statutory 
withholding of removal and CAT protection.
    As explained in the IFR and the June 3 Proclamation, resource 
limitations, outdated laws, and significantly elevated encounter levels 
at the southern border have made it difficult for the Departments to 
quickly grant relief or protection to those who require it and to 
quickly remove those who do not establish a legal basis to remain in 
the United States. In light of the emergency border circumstances 
outlined in the June 3 Proclamation, the IFR, and this rule, the goal 
of this rule is to reduce irregular entries at the southern border and 
to quickly issue decisions and impose consequences on those who cross 
our border irregularly and lack a legal basis to remain. See 89 FR at 
48731. The Departments believe that imposing a ``reasonable 
probability'' screening standard for statutory withholding of removal 
and CAT protection is needed to further this goal and is consistent 
with all statutory and regulatory requirements and the United States' 
international law obligations.
    Specifically, the elevated ``reasonable probability'' screening 
standard will better allow the Departments to screen out claims that 
are unlikely to be meritorious, as the higher screening standard is 
more proportional to the ultimate burdens of proof for statutory 
withholding of removal and CAT protection, which are each higher than 
that for asylum. See, e.g., 89 FR at 48747 (noting that the higher 
screening standard will help better predict the likelihood of success 
on the ultimate application for relief or protection); see also 
Regulations Governing the Convention Against Torture, 64 FR at 8485 
(applying a higher screening standard for statutory withholding of 
removal and CAT protection in the reasonable fear context ``[b]ecause 
the standard for showing entitlement to these forms of protection (a 
probability of persecution or torture) is significantly higher than the 
standard for asylum (a well-founded fear of persecution)''). 
Identifying non-meritorious claims early in the process is an important 
deterrent to disincentivize noncitizens from making the perilous 
journey to the United States under the belief that they will be 
released and able to remain in the United States for a significant 
period, or indefinitely. Instead, under this rule, those who do not 
establish eligibility for statutory withholding of removal or CAT 
protection under the ``reasonable probability'' standard will be 
swiftly removed rather than being released into the United States to 
potentially wait years for a hearing. This will also allow the 
Departments to focus limited resources on processing of those who are 
most likely to be persecuted or tortured if removed, and to more 
quickly provide stability and benefits to noncitizens whose asylum 
claims are granted. See, e.g., INA 209, 8 U.S.C. 1159 (``Adjustment of 
status of refugees'').
    The Departments made a similar determination in the Circumvention 
of Lawful Pathways rule in implementing the ``reasonable possibility'' 
standard for statutory withholding of removal and CAT protection for 
noncitizens subject to that rule. See 88 FR at 31336 (noting that the 
heightened standard would help in ``reducing the strain on the 
immigration courts by screening out and removing those with non-
meritorious claims more quickly''). That determination has been 
subsequently validated, as the elevated standard for statutory 
withholding of removal and CAT protection in credible fear screenings 
under the Circumvention of Lawful Pathways rule resulted in an 
approximately 30 percent decrease in positive credible fear findings. 
See 89 FR at 48745-46 (providing Circumvention of Lawful Pathways 
data).
    The Departments recognize that, as identified by commenters, 
noncitizens may face difficulties in their journeys to the United 
States and in presenting their claims during credible fear screenings. 
However, the statutory expedited removal process is predicated on the 
requirement that noncitizens must explain their fear during a credible 
fear screening. See INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B) 
(implementing credible fear ``[a]sylum interviews,'' to include 
``material facts as stated by the applicant''). As part of this 
threshold screening, the ``reasonable probability'' standard is not 
intended to be an insurmountable hurdle; rather, it requires 
noncitizens to provide greater specificity in their testimony related 
to their claim than that which might be sufficient to meet the 
``reasonable possibility'' or ``significant possibility'' screening 
standards. See 89 FR at

[[Page 81247]]

48746-48 (explaining that ``the new standard requires a greater 
specificity of the claim in the noncitizen's testimony''). This greater 
specificity is intended to be straightforward for noncitizens to 
provide, as it entails answering standard credible fear screening 
questions, such as variations of the following questions: Why do you 
fear return to the country of removal? Who do you believe would harm 
you if you were removed from the United States? Have you been 
previously harmed in the country of removal? If so, why were you 
harmed? Having the noncitizen answer these types of questions with 
greater specificity is not intended to require legal expertise and 
instead seeks to have communicated relevant personal facts and 
circumstances within the noncitizen's knowledge. Moreover, such 
evidence is generally provided through testimony at the credible fear 
screening stage, and credible testimony alone can satisfy the 
noncitizen's burden. See, e.g., 89 FR at 48746.
    Furthermore, to the extent that commenters expressed concerns about 
the compounding effects of trauma resulting in difficulty expressing 
fear, less time for consultation, and the need to meet a ``reasonable 
probability'' standard at the screening stage, the Departments note 
that AOs have significant training and experience in engaging in non-
adversarial interview techniques, working with interpreters, cross-
cultural communication, and eliciting information from trauma survivors 
and other vulnerable populations.\327\ As discussed at greater length 
at section III.B.2.a.ii(2) of this preamble, while the length of the 
consultation period is outside the scope of this rulemaking, this rule 
ensures that noncitizens are provided with all of the rights due to 
them under the statutory expedited removal and credible fear processes, 
including the right to consult with a legal representative or other 
individual of their choosing prior to the credible fear interview and 
to have such an individual present during their credible fear 
interview, provided it will not unreasonably delay the process. See INA 
235(b)(1)(B)(iv), 8 U.S.C. 1225(b)(1)(B)(iv); 8 CFR 208.30(d)(4). AOs 
apply the same training and draw from the same breadth of experience in 
eliciting testimony and conducting non-adversarial interviews described 
above regardless of the screening standard that is being applied. 
Noncitizens are not expected to have legal knowledge or to be familiar 
with specific standards or elements related to a persecution or torture 
screening; rather, they are only expected to truthfully testify about 
their claim and testimony alone can be sufficient to support a positive 
fear determination.
---------------------------------------------------------------------------

    \327\ See USCIS, RAIO Directorate--Officer Training: 
Interviewing--Introduction to the Non-Adversarial Interview (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Interviewing--
Eliciting Testimony (Apr. 24, 2024); USCIS, RAIO Directorate--
Officer Training: Interviewing--Working with an Interpreter (Apr. 
24, 2024); USCIS, RAIO Directorate--Officer Training: Cross-Cultural 
Communication and Other Factors That May Impede Communication at an 
Interview (Apr. 24, 2024); USCIS, RAIO Directorate--Officer 
Training: Interviewing Survivors of Torture and Other Severe Trauma 
(Apr. 24, 2024).
---------------------------------------------------------------------------

    The Departments take seriously concerns raised by commenters 
related specifically to difficulties faced by families in the non-
detained FERM process, including children attending credible fear 
interviews and challenges obtaining Indigenous language interpreters. 
Where issues arise in non-detained credible fear interviews in the FERM 
process, just as when issues arise in any interview, AOs and 
supervisory AOs tap into their extensive training and experience and 
follow existing procedures to address the issue.\328\ USCIS has 
established procedures in place in order to obtain interpreters of rare 
languages for credible fear interviews and ensure appropriate steps are 
taken where an interpreter is not available, including issuing a 
discretionary NTA where warranted. And while there are inherent 
challenges in conducting non-detained interviews with families, 
including attending to children during an interview, these issues are 
not unique to the FERM process. They are issues dealt with during 
interviews where children may be present in various situations, 
including affirmative asylum interviews; and AOs, supervisory AOs, and 
asylum office staff handle these issues as they arise in various 
circumstances. Whether the credible fear interview is taking place in a 
detained setting or is taking place in a non-detained setting as part 
of the FERM process, AOs apply their extensive training related to non-
adversarial interviewing, combined with their substantive legal 
training, to make a determination as to whether a noncitizen meets the 
given screening standard. Additionally, all credible fear 
determinations must be reviewed by a supervisory AO before they become 
final. 8 CFR 208.30(e)(8).
---------------------------------------------------------------------------

    \328\ See, e.g., USCIS, RAIO Directorate--Officer Training: 
Interviewing--Working with an Interpreter (Apr. 24, 2024); USCIS, 
RAIO Directorate--Cross-Cultural Communication and Other Factors 
That May Impede Communication at an Interview (Apr. 24, 2024).
---------------------------------------------------------------------------

    Moreover, as provided by statute and as the IFR makes clear, 
noncitizens have a right to request review by an IJ of the AO's 
credible fear determination. INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 
1225(b)(1)(B)(iii)(III); 8 CFR 208.35(b)(2)(iii)-(v), 1208.35(b)(1); 89 
FR at 48748. Where it is requested, the IJ conducts a de novo review of 
the negative credible fear determination, including the application of 
the rule's limitation on asylum eligibility and possible exceptions to 
that limitation. 8 CFR 1208.35(b). Importantly, noncitizens will have 
additional time to consult with other persons prior to this review. 8 
CFR 235.15(b)(4) (requiring written disclosure of a noncitizen's right 
to consult with other persons prior to an interview or any review 
thereof). During such review, noncitizens will have the opportunity to 
make statements in support of their claims, and IJs may also consider 
other such facts as are known to the IJ. See 8 CFR 1003.42(c)-(d); see 
also Immigration Court Practice Manual ch. 7.4(d)(4)(E), https://www.justice.gov/eoir/reference-materials/ic/chapter-7/4 (noting that 
``[e]ither the noncitizen or DHS may introduce oral or written 
statements'' during a credible fear review). IJs have significant 
training and experience in eliciting testimony from individuals who 
have experienced trauma and developing the record accordingly.\329\ As 
further explained in the IFR, AOs, supervisory AOs, and IJs receive 
training and have experience applying asylum, statutory withholding of 
removal, and CAT protection screening standards and in applying and 
reviewing decisions related to the ultimate asylum (for USCIS and EOIR) 
and statutory withholding of removal and CAT protection (for EOIR) 
merits standards. As such, they are well-suited to be able to identify 
in a screening whether the information the noncitizen has provided is 
sufficiently specific to lead them to believe that the noncitizen may 
be able to establish eligibility at the

[[Page 81248]]

merits stage. See 89 FR at 48747. In sum, the Departments believe the 
procedural safeguards in place that comport with all statutory 
requirements and the extensive training and experience of AOs, 
supervisory AOs, and IJs in conducting screening interviews and making 
and reviewing fear determinations will ensure that noncitizens in the 
credible fear process, including those experiencing the effects of 
trauma and other vulnerable populations, will be screened for potential 
claims in a sensitive and fair manner at the applicable fear standard.
---------------------------------------------------------------------------

    \329\ See 8 CFR 1003.0(b)(1)(vii) (authorizing the provision of 
comprehensive training and support to IJs); 8 CFR 1003.9(b)(2) 
(authorizing the Chief IJ to provide ``appropriate training . . . on 
the conduct of their powers and duties''); Fact Sheet: Executive 
Office for Immigration Review Immigration Judge Training 2 (June 
2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline; DOJ 
EOIR, Legal Education and Research Services Division (Jan. 3, 2020), 
https://www.justice.gov/eoir/legal-education-and-research-services-division (``The Legal Education and Research Services Division 
(LERS) develops and coordinates headquarters and nationwide 
substantive legal training and professional development for new and 
experienced judges, attorneys, and others within EOIR who are 
directly involved in EOIR's adjudicative functions. LERS regularly 
distributes new information within EOIR that includes relevant legal 
developments and policy changes from U.S. government entities and 
international organizations.'').
---------------------------------------------------------------------------

    Comment: Commenters stated that the rule's ``reasonable 
probability'' definition--which requires ``substantially more than a 
`reasonable possibility,' but somewhat less than more likely than 
not''--is vague and amorphous; overly subjective; and lacks 
interpretive guidance or similar usage in other comparative contexts. 
Commenters stated that the definition would result in inconsistent 
application due to a lack of meaningful instruction for AOs and IJs, 
who would instead rely on their own discretion.
    Response: The Departments believe that the ``reasonable 
probability'' definition set forth in the IFR, which comparatively 
references the ``reasonable possibility'' and ``more likely than not'' 
legal standards, provides adequate guidance for AOs and IJs and 
noncitizens to understand the level of evidentiary proof needed to 
satisfy the threshold credible fear screening process. Both 
``reasonable possibility'' and ``more likely than not'' are 
longstanding legal standards familiar to AOs and IJs and 
representatives, so implementing a new ``reasonable probability'' 
standard that falls between those two existing standards provides a 
stable benchmark for determining whether the new standard has been 
satisfied. See, e.g., 8 CFR 208.13(b)(1)(iii)(B), 1208.13(b)(1)(iii)(B) 
(``reasonable possibility'' standard); 8 CFR 208.16(b)(2), 
1208.16(b)(2) (``more likely than not'' standard). AOs and IJs also 
receive training on the applicable legal screening standards.\330\
---------------------------------------------------------------------------

    \330\ See, e.g., USCIS, RAIO Directorate--Officer Training: 
Evidence 20-26 (Apr. 24, 2024); EOIR, Fact Sheet: Immigration Judge 
Training (June 2022), https://www.justice.gov/eoir/page/file/1513996/dl?inline.
---------------------------------------------------------------------------

    Moreover, as explained in the IFR, evaluating evidence under both 
the ``reasonable probability'' standard and the ``reasonable 
possibility'' standard remains the same, ``save for the degree of 
specificity required.'' 89 FR at 48747; see also id. at 48746 
(explaining the difference between the two standards ``as being that 
the new standard requires a greater specificity of the claim in the 
noncitizen's testimony''). Indeed, USCIS AOs and supervisory AOs have 
applied this new standard in a manner that is consistent with 
expectations, resulting in a somewhat, but not drastically, lower 
screen-in rate for USBP credible fear cases screened by USCIS under the 
IFR (51 percent for all fear screening cases subject to the rule, 
including 48 percent of those screened under the ``reasonable 
probability'' standard) \331\ than USBP credible fear cases screened by 
USCIS under the Circumvention of Lawful Pathways rule (54 percent 
overall, including 51 percent of those screened under the: reasonable 
possibility'' standard).\332\ In addition, during credible fear reviews 
overall, IJs have vacated negative credible fear determinations under 
the IFR at a much lower rate than under the Circumventing Legal 
Pathways rule.\333\
---------------------------------------------------------------------------

    \331\ See OHSS analysis of data downloaded from UIP on September 
3, 2024 (Fear Screening--STB tab). Data are limited to SWB 
encounters between POEs. The total rate excludes cases referred for 
fear screening but determined by USCIS not to be subject to the IFR.
    \332\ See OHSS analysis of June 2024 Enforcement Lifecycle data 
(Fear Screening--CLP tab). The overall rate includes Mexican 
nationals (even though they are not technically covered by the rule) 
and excludes cases referred for fear screening but determined by 
USCIS not to be subject to the Circumvention of Lawful Pathways 
rule. Data are limited to SWB encounters between POEs.
    \333\ See OHSS analysis of June 2024 Enforcement Lifecycle data 
and data downloaded from UIP on September 3, 2024 (IFR ERCF tab and 
Imm Post-Pandemic ERCF tab). During the immediate post-pandemic 
period, OHSS estimates that IJs vacated 16 percent of negative fear 
credible fear interviews resulting from USBP ER cases, and 6 percent 
of all credible fear interviews; under the IFR the corresponding 
rates for USBP ER cases through July 31, 2024, were 9 percent and 4 
percent.
---------------------------------------------------------------------------

    Comment: Commenters stated that an additional ``reasonable 
probability'' screening standard in the credible fear process will lead 
to confusion amongst adjudicators. Commenters explained that there are 
now three different legal standards in credible fear screenings--
significant possibility, reasonable possibility, and reasonable 
probability--all of which could be applicable in some cases. Moreover, 
commenters noted that the governing standards might change depending on 
whether emergency border circumstances are in effect under this rule. 
Commenters were concerned that multiple standards would lead to AOs and 
IJs applying the wrong standard, or conflating the requirements of each 
standard, which could result in potential refoulement because there 
will be few mechanisms for accountability if a mistake occurs.
    Commenters also stated that adding another screening standard is 
inefficient, as AOs and IJs will need to determine which standard 
applies to each aspect of a case. Commenters also noted that this will 
require more resources from legal organizations to gather necessary 
evidence.
    Response: The Departments disagree with commenters' claims that the 
``reasonable probability'' screening standard for statutory withholding 
of removal and CAT protection will result in confusion or adjudication 
errors or would otherwise be inefficient. AOs and IJs regularly work 
with various standards, and determine which standards apply, in the 
course of their adjudications, such as the ``extraordinary 
circumstances'' standard to determine whether an asylum applicant 
qualifies for an exception to the one-year filing deadline, see INA 
208(a)(2)(D), 8 U.S.C. 1158(a)(2)(D), and the discretionary 
``compelling reasons'' standard to determine whether an applicant who 
has suffered past persecution but lacks a well-founded fear of future 
persecution should be granted asylum in the exercise of discretion, see 
8 CFR 208.13(b)(1)(iii)(A), 1208.13(b)(1)(iii)(A). Indeed, deciding 
which legal standard applies is a critical aspect of the role of AOs 
and IJs. See 8 CFR 1003.10(b).
    Further, AOs and IJs have significant training and experience in 
eliciting testimony and applying evidentiary standards in immigration 
proceedings. See, e.g., 89 FR at 48747. The Departments are similarly 
confident that AOs and IJs will efficiently apply the ``reasonable 
probability'' standard, which is similar to the ``significant 
possibility'' and ``reasonable possibility'' standards. See id. at 
48748 (explaining that the reasonable probability standard ``is not a 
significant departure from the types of analyses AOs, supervisory AOs, 
and IJs conduct on a daily basis'' but is rather ``a matter of 
degree''). Further, credible fear determinations are reviewed by a 
supervisory AO before they become final to ensure consistency and 
quality and are subject to de novo review by an IJ if a noncitizen 
requests such review. See 8 CFR 208.30(e)(8), 1208.35(b); 89 FR at 
48748. Additionally, to avoid confusion, any changes regarding the 
applicability of emergency border circumstances are communicated to 
AOs, IJs, and the public, and have been made publicly available since 
the June 3 Proclamation and publication of the IFR.\334\
---------------------------------------------------------------------------

    \334\ See DHS, Securing the Border: Presidential Proclamation 
and Rule (Aug. 6, 2024), https://www.dhs.gov/immigrationlaws.
---------------------------------------------------------------------------

    For comparison, under the Circumvention of Lawful Pathways rule,

[[Page 81249]]

AOs and IJs have successfully applied the ``significant possibility'' 
screening standard to asylum claims and the ``reasonable possibility'' 
screening standard to statutory withholding of removal and CAT 
protection claims since its implementation. See 8 CFR 208.33(b)(2)(ii), 
1208.33(b)(2)(ii). And for several months, AOs and IJs have 
successfully applied the ``reasonable probability'' standard in 
screenings under the IFR. Therefore, the Departments believe that AOs 
and IJs can continue to apply the ``reasonable probability'' standard 
implemented in this rule.
    With regard to concerns from legal service organizations about 
gathering additional evidence under the ``reasonable probability'' 
standard, the Departments again reiterate that the relevant evidence 
largely remains the same, and simply requires more specificity. See 89 
FR at 48746-47. Much of this specificity is likely to come through the 
noncitizen's testimony, which will require the noncitizen to describe 
why they, in particular, are likely to be harmed or threatened with 
harm. This testimony focuses on relevant personal facts and 
circumstances within the noncitizen's knowledge, which should not 
significantly increase the burden of production on the noncitizen or 
legal service providers.
    Comment: Commenters raised concerns with the IFR's justifications 
for implementing the ``reasonable probability'' standard.
    Commenters argued that the ultimate asylum grant rate should not be 
the sole justification for implementing the ``reasonable probability'' 
standard. Commenters noted that the disparity between positive credible 
fear determinations and ultimate asylum grant rates itself was not a 
reason to raise the credible fear screening standard. Commenters 
explained that the credible fear screening threshold was intended to be 
low to avoid refoulement and, therefore, the credible fear screening 
passage rate should necessarily be higher than the ultimate asylum 
grant rate.
    Commenters also believed the IFR relied on misleading statistics in 
claiming that the screening standard should be raised because the 
credible fear screening passage rate was significantly higher than the 
ultimate asylum grant rate in removal proceedings. Commenters explained 
that the ultimate asylum grant rate statistic in removal proceedings 
includes all disposition types--not just grants and denials--and also 
includes factors such as a lack of counsel, poor translation, and 
variable IJ grant rates, which does not necessarily mean that the 
asylum claim itself was insufficient. Moreover, commenters pointed to 
additional EOIR statistics, which they stated showed that the ultimate 
asylum grant rates were higher than portrayed in the IFR.
    Commenters also stated that the Departments did not adequately 
explain why they imposed a higher screening standard in this rule 
while, in the previous Asylum Processing IFR (87 FR 18078), the 
Departments argued that the ``significant possibility'' standard was 
preferable for screening statutory withholding of removal and CAT 
protection claims. Separately, commenters argued that the ``reasonable 
probability'' standard would not meet the IFR's stated goals of 
deterring irregular migration, asserting that the Circumvention of 
Lawful Pathways rule's increased screening standard did not 
``significantly lower'' the credible fear passage rate. Lastly, 
commenters stated that the Departments did not consider that 
deterrence-based policies, such as a heightened standard, only result 
in temporary reductions in border crossings.
    Response: The Departments disagree with objections to the IFR's 
justifications supporting the ``reasonable probability'' standard.
    First, the Departments disagree that the disparity between the 
credible fear screening passage rate and ultimate asylum grant rate is 
irrelevant or should not be relied upon. This disparity is a clear 
indication of how many positive credible fear determinations ultimately 
translate into grants of asylum relief. The Departments understand that 
the credible fear screening process is only a threshold determination 
and will, by design, result in asylum claims that meet the initial 
screening standard but fail during the ultimate merits adjudication. 
However, for purposes of the IFR, the Departments cited to this 
disparity to explain that such a wide disparity ultimately indicates a 
screening process that is excessively overinclusive, resulting in a 
large number of non-meritorious asylum claims increasing adjudicatory 
backlogs. See 89 FR at 48746 (explaining that, under the Circumvention 
of Lawful Pathways rule, the ``screen-in rate remains significantly 
higher than the grant rate for ultimate merits adjudication for SWB 
expedited removal cases that existed prior to the rule'' and that, 
under the IFR, the existence of emergency border circumstances 
necessitates focusing limited resources on ``processing those who are 
most likely to be persecuted or tortured if removed'').
    The Departments also disagree that any cited statistics in the IFR 
regarding asylum grant rates in section 240 removal proceedings are 
misleading. While commenters are correct that section 240 removal 
proceedings may be completed without an ultimate adjudication on an 
asylum application (such as through dismissal or termination of 
proceedings), EOIR data are consistent that, for completed cases, only 
a small percentage of asylum claims referred from the credible fear 
process are ultimately granted in section 240 removal proceedings, 
which was a relevant concern underlying the IFR's justification for the 
heightened ``reasonable probability'' standard.\335\ For example, in 
2023, only 18 percent of referred asylum claims ultimately resulted in 
an asylum grant at the completion of section 240 removal proceedings, 
even when excluding cases that were administratively closed or did not 
have the asylum claim adjudicated.\336\ Moreover, the Departments note 
that the data also demonstrate that a large percentage of completed 
cases without an ultimate asylum adjudication of grant or denial 
involve noncitizens who never filed an asylum application once placed 
in section 240 removal proceedings.\337\ Additionally, to the extent 
that section 240 removal proceedings are terminated before an asylum 
application is adjudicated, the termination does not necessarily have 
any bearing on the ultimate strength or weakness of the asylum claim.
---------------------------------------------------------------------------

    \335\ See, e.g., EOIR, Adjudication Statistics: Asylum Decisions 
in Cases Originating with a Credible Fear Claim (Apr. 19, 2024), 
https://www.justice.gov/eoir/media/1344831/dl?inline.
    \336\ See id.
    \337\ See id.
---------------------------------------------------------------------------

    In response to commenters' concerns regarding the Departments' 
decision in the 2022 Asylum Processing IFR to maintain the 
``significant possibility'' screening standard for statutory 
withholding of removal and CAT protection, the Departments note that 
they addressed these concerns in the Circumvention of Lawful Pathways 
rule. See 88 FR at 31336. In response to similar comments on that rule, 
the Departments explained that ``the current and impending situation on 
the ground along the SWB warrants departing in some respects from the 
approach generally applied in credible fear screenings'' and that the 
``Asylum Processing IFR was designed for non-exigent circumstances.'' 
Id. Similarly, as explained in the IFR and this rule, prior to 
implementation of the IFR, migration

[[Page 81250]]

patterns and other factors resulting in emergency border circumstances 
had only intensified, thereby necessitating a further change to the 
relevant credible fear screening standard for statutory withholding of 
removal and CAT protection. See 89 FR at 48724 (``While the 
Circumvention of Lawful Pathways rule and complementary measures have 
yielded demonstrable results, the resources provided to the Departments 
still have not kept pace with irregular migration.''); see also supra 
Section II.A.1 (``Basis for the IFR'').
    Lastly, the Departments disagree with commenters regarding the 
overall efficacy of this rule and of the ``reasonable probability'' 
standard in particular. Contrary to commenters' claims, the Departments 
have seen a significant decrease in the credible fear screen-in rate 
since the Circumvention of Lawful Pathways rule's implementation of the 
``reasonable possibility'' standard, and a further decrease since the 
IFR's implementation of the ``reasonable probability'' standard. See 89 
FR at 48745-46 (showing a 31 percent decrease in the screen-in rate 
under the Circumvention of Lawful Pathways rule); see also Section 
II.A.2 of this preamble (providing statistics on the IFR's efficacy to 
date). The Departments also disagree that deterrence-based policies 
have only temporary or limited effects, but they do note that 
deterrence is only one part of an overall border and migration strategy 
that can help to better manage migratory flows. See 89 FR at 48729-30 
(explaining that DHS's migration strategy focuses on ``enforcement, 
deterrence, encouragement of the use of lawful pathways, and 
diplomacy'').
    Overall, the Departments believe that the screening standard 
changes made in this rule will help better manage an overwhelmed 
immigration system, while also noting that, as explained in IFR, this 
rule is only a piece of broader efforts that will likely require 
further congressional action. See 89 FR at 48715 (``Although the 
Departments are adopting these measures to respond to the emergency 
situation at the southern border, they are not a substitute for 
congressional action--which remains the only long-term solution to the 
challenges the Departments have confronted on the border for more than 
a decade.'').
    Comment: Commenters noted that the ``reasonable probability'' 
standard could also apply in the context of the consideration of 
mandatory asylum bars as proposed in a separate DHS rulemaking, 
Application of Certain Mandatory Bars in Fear Screenings, 89 FR 41347 
(May 13, 2024) (``Mandatory Bars NPRM''). Commenters stated that the 
Departments should not apply the ``reasonable probability'' standard to 
noncitizens found to be barred from asylum due to a mandatory bar, 
noting the Mandatory Bars NPRM.
    Response: The Departments agree with commenters that the 
``reasonable probability'' standard may apply in the context of 
consideration of mandatory bars if DHS finalizes the DHS Mandatory Bars 
NPRM as proposed, as the Departments noted in the IFR. See 89 FR at 
48739 n.186 (explaining that, if the DHS Mandatory Bars NPRM is 
finalized, the ``reasonable probability'' standard would still apply 
when a noncitizen is subject to this rule's limitation on asylum 
eligibility).
    The Departments decline to amend the ``reasonable probability'' 
standard so that it would not apply to considerations of mandatory 
bars. First, as stated above in this section, the Departments have 
determined that a higher ``reasonable probability'' standard is needed 
in light of the emergency border circumstances. Accordingly, the 
Departments decline to make edits to reduce the standard's 
applicability. If DHS ultimately decides to consider the mandatory bars 
as part of fear screenings under the steady-state regulations and the 
Circumvention of Lawful Pathways rule, it would be appropriate for DHS 
to consider those bars under this rule as well, also under a 
``reasonable probability'' standard. See 8 CFR 208.35(b)(2)(i). This 
would be consistent with the overall purpose of the DHS Mandatory Bars 
NPRM. See 89 FR at 41351 (explaining that the proposed rule ``is 
consistent with the Administration's demonstrated record of providing 
operators maximum flexibility and tools to apply consequences, 
including by more expeditiously removing those without a lawful basis 
to remain in the United States, while providing immigration relief or 
protection to those who merit it at the earliest point possible'' and 
that the proposed rule would ``allow DHS to quickly screen out certain 
non-meritorious protection claims and to swiftly remove those 
noncitizens who present a national security or public safety 
concern'').
4. Other Comments on the Regulatory Provisions
a. Application to Mexican Nationals
    Comment: Commenters raised several concerns regarding the 
applicability of the IFR's limitation on asylum eligibility to Mexican 
nationals. Generally, commenters argued that Mexican asylum seekers 
should be exempt from the rule's limitation on asylum eligibility and 
should not be forced to wait in Mexico, the country where they fear 
persecution or torture, during emergency border circumstances. 
Commenters stated that requiring Mexican asylum seekers to wait in the 
country where they claim to face persecution is tantamount to 
refoulement in violation of international law and would further expose 
them to the threat of future harm. Similarly, commenters stated that 
Mexican nationals cannot be expected to apply for asylum in Mexico--the 
country where they are claiming harm--which commenters explained was a 
``common-sense principle'' that the Departments abandoned in the IFR.
    Relatedly, commenters stated that the Departments' available 
pathways to pursue asylum, including the CBP One app, are too limited 
for Mexican nationals, who would be exposed to an increased risk of 
persecution if forced to wait in Mexico for the ability to pursue 
asylum. Commenters expressed further concerns about the rule's lack of 
exceptions, including that, if the IFR's exceptions are intended to 
``mirror'' the Circumvention of Lawful Pathways rule, it is ``unfair 
and dangerous'' for the IFR to apply to Mexican nationals, and that the 
IFR's requirements would ``trap'' Mexican nationals in the country of 
alleged persecution in violation of international law and non-
refoulement obligations.
    Response: The Departments decline to change the rule's 
applicability to Mexican nationals, as excepting Mexican nationals from 
the rule would undermine the rule's foundational purpose to alleviate 
strain on border security and immigration systems while entry is 
suspended and limited under the Proclamation. See 89 FR at 48738-39. 
The strains that resulted in emergency border circumstances and 
necessitated implementation of the IFR were driven in part by a recent 
sharp increase in Mexican nationals processed for expedited removal and 
referred for credible fear interviews. Id. The Departments believe that 
these emergency border circumstances weigh heavily in favor of applying 
the rule to Mexican nationals in order to better process increased 
inflows of Mexican nationals and return border processing to more 
manageable levels.
    Moreover, the rule's applicability to Mexican nationals does not 
violate non-refoulement obligations because the United States 
implements its non-refoulement obligations under Article 33 of the 
Refugee Convention (via the Refugee Protocol) through the statutory

[[Page 81251]]

withholding of removal provision in section 241(b)(3) of the INA, 8 
U.S.C. 1231(b)(3). All noncitizens, including Mexican nationals, 
maintain the opportunity to make a threshold showing for statutory 
withholding of removal and CAT protections during the credible fear 
screening process, as the rule's limitation on asylum eligibility does 
not extend to those forms of protection. See 8 CFR 208.35(b)(2), 
1208.35(b)(2).
    The Departments also disagree that Mexican nationals do not have 
sufficient paths for seeking relief or protection in the United States. 
First, Mexican nationals may avail themselves of lawful, safe, and 
orderly pathways to the United States, such as making an appointment 
through the CBP One app. See, e.g., 8 CFR 208.33(a)(2)(ii)(B); see also 
89 FR at 48754 (explaining that CBP One appointments create an 
efficient and orderly process at POEs). To the extent a Mexican 
national cannot wait in Mexico for a CBP One appointment due to urgent 
safety concerns, the rule contains an exception for exceptionally 
compelling circumstances, including for imminent and extreme threats to 
life or safety. See 8 CFR 208.35(a)(2)(i), 1208.35(a)(2)(i). This 
exception maintains the rule's efficacy by ensuring that Mexican 
nationals with specific, urgent safety needs to enter the United States 
can do so, while otherwise allowing the rule to apply to those Mexican 
nationals who, for example, are able to safely wait in another part of 
Mexico for their appointment. Furthermore, as of August 23, 2024, the 
Departments note that Mexican nationals are able to request and 
schedule a CBP One appointment from anywhere within Mexico.\338\ This 
new adjustment to the CBP One app will enable Mexican nationals facing 
imminent danger in a specific area of Mexico to internally relocate 
while waiting for their CBP One appointment.\339\
---------------------------------------------------------------------------

    \338\ See CBP, CBP One<SUP>TM</SUP> Mobile Application: Recent 
Updates (last modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.
    \339\ See id.
---------------------------------------------------------------------------

    Second, this rule ensures that noncitizens are able to avoid 
refoulement through the availability of statutory withholding of 
removal, in addition to CAT protection. See 8 CFR 208.35(b)(2), 
1208.35(b)(2). Third, the rule contains a number of provisions that may 
apply to Mexican nationals. For example, the limitation on asylum 
eligibility does not apply to groups that are excepted from the 
suspension and limitation on entry under section 3(b) of the 
Proclamation, including UCs. See 8 CFR 208.35(a)(1), 1208.35(a)(1). The 
rule also provides an exception for noncitizens who can establish the 
aforementioned exceptionally compelling circumstances. See 8 CFR 
208.35(a)(2)(i), 1208.35(a)(2)(i). Additionally, the rule includes a 
provision to ensure family unity and avoid potential family separation 
for certain noncitizens who can establish eligibility for statutory 
withholding of removal or CAT protection. See 8 CFR 208.35(c), 
1208.35(c). Taken together, these provisions help ensure that, while 
some Mexican nationals may not be granted asylum after entering the 
United States during emergency border circumstances, sufficient options 
exist for Mexican nationals to pursue available protection and avoid 
immediate harm.
    Comment: Commenters stated that the rule's exceptions are 
inadequate for Mexican nationals. Commenters stated that, for Mexican 
nationals, the facts underlying their asylum claim would be conflated 
with the rule's exception for an ``imminent and extreme threat to life 
or safety.'' According to commenters, in practice, this would result in 
Mexican nationals having to essentially present their full asylum claim 
to establish the exception.
    Response: If a Mexican national is unable to remain in Mexico while 
awaiting a CBP One appointment due to an imminent and extreme threat of 
harm, the rule provides an exception for exceptionally compelling 
circumstances, in order to provide a potential avenue for the Mexican 
national to avoid application of the rule's limitation on asylum 
eligibility. See 8 CFR 208.35(a)(2)(i), 1208.35(a)(2)(i). The 
Departments disagree that this exception for noncitizens who 
demonstrate exceptionally compelling circumstances is inadequate for 
Mexican nationals.
    The Departments clarify that the analysis to determine whether any 
noncitizen--including a Mexican national--has demonstrated 
exceptionally compelling circumstances based on an ``imminent and 
extreme threat to life or safety'' at the time of entry is separate 
from the ultimate determination regarding the merits of a noncitizen's 
asylum claim, even if, in certain circumstances, some of the same facts 
underlying a Mexican national's asylum claim may also be relevant to a 
determination on the rule's exception. For purposes of the ``imminent 
and extreme threat to life or safety'' exception, noncitizens need only 
provide evidence focused on threats that the noncitizen faced at the 
time they crossed the SWB, such that the noncitizen could not wait for 
an opportunity to present at a POE. See, e.g., 88 FR at 11723 
(explaining operation of similar ground for rebutting presumption of 
ineligibility for asylum under the Circumvention of Lawful Pathways 
rule). In contrast, for the asylum claim itself, the noncitizen must 
demonstrate that they otherwise have a credible fear of persecution or 
torture during credible fear proceedings and, during a full merits 
adjudication, that they satisfy the eligibility requirements for 
asylum. See 8 CFR 208.35(b)(1)(iii), 1208.35(b)(2)(ii) (directing AOs 
and IJs to proceed under 8 CFR 208.30 and 1208.30, respectively, in 
credible fear proceedings where a noncitizen has established the 
exception to the limitation on asylum eligibility based on 
exceptionally compelling circumstances); see generally 8 CFR 208.13, 
1208.13 (describing asylum eligibility requirements).
    Relatedly, the Departments also clarify that the ``exceptionally 
compelling circumstances'' exception is applied during the credible 
fear process, and not during any initial border encounter with CBP. See 
8 CFR 208.35(b) (``Application in credible fear determinations.'').
    Comment: Commenters stated that the rule discriminates against 
Mexican nationals, both in intent and effect. Commenters stated that, 
by comparison, the rule is more restrictive than prior Departmental 
policies, including the Circumvention of Lawful Pathways rule and the 
now-defunct MPP, which specifically exempted Mexican nationals. Thus, 
commenters stated, this rule was issued to limit the entry of Mexican 
nationals and would result in more drastic consequences for Mexican 
nationals than those other rules and policies. Furthermore, commenters 
argued that, because the Circumvention of Lawful Pathways rule does not 
apply to Mexican nationals, there will be significant confusion in 
applying these rules together during the credible fear process.
    Response: The Departments disagree with commenters' assertions that 
this rule discriminates against Mexican nationals. Commenters stated 
that the discriminatory intent and purpose is evidenced by the 
Circumvention of Lawful Pathways rule's comparative inapplicability to 
Mexican nationals. However, the Departments emphasize that this rule 
and the Circumvention of Lawful Pathways rule serve different 
objectives. For example, unlike with respect to this rule, traveling 
through a third country is a key requirement of the Circumvention of 
Lawful Pathways rule

[[Page 81252]]

because requiring that noncitizens apply for protection in a third 
country is one means for providing protection in the United States 
where necessary while also sharing the responsibility of providing 
necessary protections with the United States' regional partners. See 8 
CFR 208.33(a)(1)(iii); 1208.33(a)(1)(iii); 88 FR at 31316. Thus, the 
Circumvention of Lawful Pathways rule generally does not apply to 
Mexican nationals residing in Mexico, who would not need to travel 
through another country to reach the United States. To the contrary, 
this rule applies uniformly to all noncitizens who enter the United 
States at the southern border during emergency border circumstances and 
are not excepted under the June 3 Proclamation or able to establish 
exceptionally compelling circumstances, without consideration of the 
path of transit to the southern border. See 8 CFR 208.13(g), 
1208.13(g).
    Additionally, since the implementation of the Circumvention of 
Lawful Pathways rule, emergency border circumstances dictate applying 
the rule broadly in order to reduce irregular entries at the southern 
border and to quickly issue decisions and impose consequences on those 
who cross the southern border irregularly and lack a legal basis to 
remain. See 89 FR at 48731. As relevant here, the United States saw a 
sharp increase in the number of encounters of Mexican nationals at the 
SWB during the COVID-19 pandemic prior to implementation of the 
Circumvention of Lawful Pathways rule, which continued into the 
immediate post-pandemic period.\340\ During the same period, the United 
States saw a corresponding increase in credible fear referrals, which 
necessitates applying the rule to Mexican nationals. See id. at 48738.
---------------------------------------------------------------------------

    \340\ See OHSS analysis of July 2024 Persist Dataset (USPB 
Encounters by Citizenship tab).
---------------------------------------------------------------------------

    Moreover, the Departments do not believe that the rule's broad 
applicability will cause confusion, as the rule maintains a 
straightforward application to noncitizens who enter the United States 
at the southern border during periods of emergency border circumstances 
and are not excepted under the Proclamation or able to establish 
exceptionally compelling circumstances.
    Comment: Commenters stated that the rule's expediency justification 
for subjecting Mexican nationals to the limitation on asylum 
eligibility is insufficient. Commenters argued that the statistics 
provided in the IFR cannot justify extending the limitation on asylum 
eligibility to Mexican nationals, noting that statistics evincing 
recent increases in Mexican nationals making fear claims indicate 
increasingly dangerous conditions in Mexico and an increased need for 
protection. Another commenter claimed that applying the rule to Mexican 
nationals is contrary to the record before the agency because, 
according to the commenter's characterization of that record, 
encounters of Mexican nationals have actually declined significantly. 
Similarly, a commenter objected that the IFR subjects Mexican nationals 
fleeing persecution to extensive stays in Mexico if they wish to seek 
asylum in the United States, but fails to consider the impact on 
Mexican nationals or provide any rationale for that result.
    Response: The Departments have considered the commenters' concerns 
and reaffirm the justifications for applying the IFR's limitation on 
asylum eligibility to Mexican nationals. The foundational basis of the 
June 3 Proclamation and the IFR is to address substantial migration 
levels at the southern border, including a ``sharp increase'' in SWB 
encounters of Mexican nationals. See, e.g., 89 FR at 48726-27; id. at 
48738. Addressing these migration levels, and their significant impact 
on border processing and the United States' immigration system more 
broadly, thereby necessitates applying the rule's limitation on asylum 
eligibility to all noncitizens, with limited exception, who enter the 
United States across the southern border during emergency border 
circumstances, including Mexican nationals.
    The Departments believe the cited data fully support the rule's 
application to Mexican nationals. Departmental data show that excluding 
Mexican nationals would undermine the rule's deterrent effect, as 
Mexican nationals comprise the largest portion of recent (post-IFR) SWB 
encounters between POEs, at approximately 41 percent.\341\ And, 
contrary to one commenter's claim, the data in the IFR did not show a 
decline in encounters of Mexican nationals. Rather, the Departments 
explained that, since 2010, the makeup of border crossers has 
significantly changed, expanding from Mexican single adults to single 
adults and families from northern Central American countries, and then 
to single adults and families from throughout the hemisphere (and 
beyond), many of whom are more likely to seek asylum and other forms of 
protection. See 89 FR at 48721. The Departments further explained that, 
as the demographics of border encounters have shifted in recent years 
to include a higher rate of Mexican nationals claiming fear, in 
addition to larger encounter numbers of other nationalities with high 
historical rates of asserting fear claims, the deterrent effect of 
apprehending noncitizens at the SWB has become more limited. See id. at 
48731 n.167 (explaining that for noncitizens encountered at and between 
SWB POEs from FY 2014 through FY 2019 who were placed in expedited 
removal, nearly 6 percent of Mexican nationals made fear claims that 
were referred to USCIS for a determination, whereas from May 12, 2023 
to March 31, 2024, 29 percent of all Mexican nationals processed for 
expedited removal at the SWB made fear claims, including 39 percent in 
February 2024). Given this demonstrated increase in encounters of, and 
fear claims made by, Mexican nationals, the Departments believe that 
applying this rule to Mexican nationals will result in faster 
processing of a significant number of Mexican noncitizens and thereby 
significantly advance this rule's overarching goal of alleviating the 
strain on the border security and immigration systems during emergency 
border circumstances. Without broad application, the practical result 
would be that those with meritorious claims would wait years for their 
claims to be granted, while noncitizens who are ultimately denied 
protection potentially would spend years in the United States before 
being issued a final order of removal.
---------------------------------------------------------------------------

    \341\ See id.
---------------------------------------------------------------------------

    Comment: Commenters stated that not creating an exception for 
Mexican nationals is especially concerning for vulnerable Mexican 
nationals, including people fleeing gang and cartel violence or other 
severe forms of violence, women, members of the LGBTQI+ community, 
those escaping sexual and gender-based violence, children, families, 
Indigenous people, journalists, and activists, among others. Commenters 
explained that violence against these vulnerable populations is endemic 
in Mexico and has been recognized by the Departments, including through 
individual asylum adjudications. Therefore, the commenters stated that 
it is concerning that the IFR does not except these vulnerable 
populations despite the clear need to prevent further harm and mitigate 
past harms suffered.
    Response: Regarding concerns about specific vulnerable populations 
of Mexican nationals, the Departments emphasize that agents and 
officers frequently encounter noncitizens who may be vulnerable and are 
trained on appropriate action. See 89 FR at 48744-

[[Page 81253]]

45. Moreover, the rule contains an explicit exception for exceptionally 
compelling circumstances that is intended to limit potential adverse 
effects of the rule's limitation on asylum eligibility, including on 
uniquely vulnerable populations. See 8 CFR 208.35(a)(2)(i), 
1208.35(a)(2)(i). For example, a noncitizen may qualify for the 
exception if the noncitizen faces an imminent and extreme threat to the 
noncitizen's life or safety immediately prior to entry into the United 
States. See id.
b. Adequacy of Statutory Withholding of Removal and CAT Protection
    Comment: Commenters stated that statutory withholding of removal 
and CAT protection are insufficient alternative forms of protection for 
noncitizens who would be ineligible for asylum under the rule, 
asserting that these forms of protection are more difficult to obtain 
and provide fewer benefits than asylum.
    First, commenters explained that statutory withholding of removal 
and CAT protection require noncitizens to meet a higher burden of proof 
than asylum and that, ultimately, these higher burdens will result in 
more noncitizens being denied protection under the rule.
    Second, commenters stated that, even if noncitizens were able to 
meet the higher burden of proof for statutory withholding of removal or 
CAT protection, the noncitizen would not be accorded the same benefits 
as asylees. For example, commenters stated that recipients of statutory 
withholding of removal and CAT protection are subject to the continued 
risk of removal; cannot petition for derivative beneficiaries; are 
unable to apply for permanent residency or citizenship; are unable to 
travel abroad; and must apply annually for work authorization, which 
commenters claimed is subject to frequent adjudicatory delays. As a 
result, commenters argued that recipients of statutory withholding of 
removal and CAT protection are left in an uncertain status incongruent 
with the United States' obligations to protect refugees; that such 
status would lead to community instability in the United States, as it 
prevents noncitizens from investing in their communities and fully 
recovering from harm; and that such status would fail to ensure family 
unity--and even promote family separation--due to an inability to 
petition for derivative beneficiaries.
    Further, commenters argued that the Departments cannot meet their 
non-refoulement obligations with statutory withholding of removal or 
CAT protections alone, stating that neither statutory withholding of 
removal nor CAT protections are equivalent to asylum because those 
protections do not convey rights guaranteed by the Refugee Protocol or 
meet the goals of the Refugee Convention. Those commenters said that 
the United States must comply with the Refugee Convention in its 
entirety, not only with Article 33. For example, commenters said that 
the United States is obligated to comply with Article 34 of the Refugee 
Convention and facilitate the integration and naturalization of 
refugees.
    Lastly, commenters claimed that noncitizens who attempt to pursue 
statutory withholding of removal or CAT protection under the rule would 
increase confusion in their interactions with DHS, particularly due to 
the rule's interactions with other rulemakings.
    Response: As an initial matter, the Departments reiterate that this 
rule fully complies with the United States' non-refoulement obligations 
under Article 33 of the Refugee Convention (via the Refugee Protocol), 
which the United States implements through the statutory withholding of 
removal provision in section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3). 
See Section III.A.1.d of this preamble. This rule's limitation on 
asylum eligibility does not affect a noncitizen's ultimate eligibility 
for statutory withholding of removal. See 8 CFR 208.35(b)(2)(i), 
1208.35(b)(2)(i) (requiring an AO to assess a noncitizen's eligibility 
for statutory withholding of removal and CAT protection when 
applicable). Similarly, this rule's implementation of the ``reasonable 
probability'' screening standard is well within the Departments' broad 
discretion to determine which screening standard should apply in 
implementing the United States' non-refoulement obligations. See 89 FR 
at 48740-41.
    The rule is similarly compliant with Article 34 of the Refugee 
Convention, which is precatory and encourages the assimilation and 
naturalization of refugees. Importantly, although the rule limits 
asylum eligibility for noncitizens who enter the United States during 
emergency border circumstances, Article 34 ``does not require the 
implementing authority actually to grant asylum to all those who are 
eligible.'' INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). Indeed, 
under U.S. law, asylum is a discretionary form of relief. Id.; see also 
INA 208(b)(1)(A), 8 U.S.C. 1158(b)(1)(A); 8 CFR 1208.14(a)-(b). 
Consistent with that authority, the Departments have determined that 
this rule's limitation on asylum eligibility is necessary to address 
the emergency border circumstances described in the IFR. See 89 FR at 
48726-31. Further, the rule does not preclude the availability of 
asylum for those to whom the rule does not apply or who demonstrate 
that exceptionally compelling circumstances exist. For example, 
noncitizens may utilize the CBP One app to schedule an appointment to 
present themselves at a POE. See June 3 Proclamation Sec. 3(b)(v)(D) 
(excepting ``noncitizens who arrive in the United States at a southwest 
land border port of entry pursuant to a process the Secretary of 
Homeland Security determines is appropriate to allow for the safe and 
orderly entry of noncitizens into the United States''); 89 FR at 48737 
(``One of the mechanisms by which a noncitizen may arrive at a POE with 
a pre-scheduled time to appear is through the CBP One app. Use of the 
CBP One app creates efficiencies that enable CBP to safely and humanely 
expand its ability to process noncitizens at POEs, including those who 
may be seeking asylum.''). Additionally, noncitizens may overcome the 
limitation on asylum eligibility if they, or a family member as 
described in 8 CFR 208.30(c) with whom they are traveling, are able to 
demonstrate exceptionally compelling circumstances by a preponderance 
of the evidence, such as if they face an acute medical emergency or an 
imminent and extreme threat to life or safety, among other 
circumstances. See 8 CFR 208.35(a)(2)(i), 1208.35(a)(2)(i).
    Next, the Departments recognize that the burdens of proof for 
statutory withholding of removal and CAT protection are higher than 
that for asylum, as they require a demonstration that it is more likely 
than not that noncitizens will be persecuted or tortured in another 
country, while asylum requires that noncitizens demonstrate a lesser 
burden of proof: a well-founded fear of persecution. See Cardoza-
Fonseca, 480 U.S. at 423. These higher burdens of proof for those to 
whom the limitation applies align with the overall purpose of the rule: 
to disincentivize irregular migration during periods of emergency 
border circumstances, so as to mitigate the risk that border 
enforcement operations and the larger immigration system become 
overwhelmed and unable to issue timely decisions or consequences. See 
89 FR at 48718 (explaining that the rule is intended to ``address 
historic levels of migration and efficiently process migrants arriving 
at the southern border during emergency border circumstances''). These 
differences in burdens of proof also correspond with the distinct, but 
related, objectives of the Circumvention of Lawful Pathways

[[Page 81254]]

rule: to encourage noncitizens to avail themselves of lawful, safe, and 
orderly pathways, where possible, as well as to discourage irregular 
migration, promote orderly processing at POEs, and ensure that 
protection is still available for those who satisfy the applicable 
standards for statutory withholding of removal or CAT protection. See 
88 FR at 31428. Therefore, if a noncitizen is subject to the rule's 
limitation on asylum eligibility, being required to meet comparatively 
higher existing standards for statutory withholding of removal or CAT 
protection is intended to further disincentivize irregular migration 
when encounters are above a certain benchmark and to ``substantially 
improve the Departments' ability to deliver timely decisions and 
consequences to noncitizens who lack a lawful basis to remain.'' 89 FR 
at 48715; see also id. at 48754.
    Separately, and as explained in response to similar comments on the 
Circumvention of Lawful Pathways rule, the Departments also recognize 
the comparatively fewer benefits of statutory withholding of removal 
and CAT protection as compared to asylum, including: (1) no permanent 
right to remain in the United States; (2) the inability to adjust 
status to become a lawful permanent resident and, relatedly, later 
naturalize as a U.S. citizen; (3) the inability to travel abroad; and 
(4) the need to affirmatively apply for, and annually renew, employment 
authorization documents. See 88 FR at 31428. However, the Departments 
again emphasize that the rule's limitation on asylum eligibility, along 
with the comparatively fewer benefits of statutory withholding of 
removal and CAT protection, align with the overall purposes of the June 
3 Proclamation and this rule: to address historic levels of migration 
at the southern border and efficiently process migrants arriving at the 
southern border during emergency border circumstances. See 89 FR at 
48718; id. at 48726-31.
    Moreover, with regard to concerns about the inability of statutory 
withholding of removal or CAT protection recipients to petition for 
beneficiary derivatives,\342\ this rule contains a family unity 
provision to help prevent family separation for noncitizens who can 
establish eligibility for statutory withholding of removal or CAT 
withholding. See 8 CFR 208.35(c), 1208.35(c). As discussed in further 
detail in Section III.C.1.e of this preamble, the family unity 
provision treats the following noncitizens as having established 
exceptionally compelling circumstances sufficient to avoid application 
of the limitation on asylum eligibility: those (1) who are found 
eligible for statutory withholding of removal or CAT withholding; (2) 
who would be eligible for asylum, but for the limitation on asylum 
eligibility set forth in the rule, the condition set forth in the 
Circumvention of Lawful Pathways rule, or both; and (3) who have a 
qualifying spouse or child. See id.
---------------------------------------------------------------------------

    \342\ The Departments note that, although there is no derivative 
protection under statutory withholding of removal or CAT protection, 
certain U.S.-based qualifying parents or legal guardians, including 
those granted withholding of removal, may petition for qualifying 
children and eligible family members to be considered for refugee 
status and possible resettlement in the United States. See USCIS, 
Central American Minors (CAM) Program, https://www.uscis.gov/CAM 
(last updated Mar. 7, 2024).
---------------------------------------------------------------------------

    Lastly, the Departments do not believe that the ability of a 
noncitizen to apply for statutory withholding of removal or CAT 
protection when subject to the rule's limitation on asylum eligibility 
will cause confusion. Noncitizens have long maintained the ability to 
pursue such protection, and DHS and EOIR personnel are well-trained in 
screening for, and adjudicating, such forms of protection. See 89 FR at 
48748 (explaining that ``AOs, supervisory AOs, and IJs receive training 
and have experience applying asylum, statutory withholding of removal, 
and CAT protection screening standards and in applying and reviewing 
decisions related to the ultimate asylum (for USCIS and EOIR) and 
statutory withholding of removal and CAT protection (for EOIR) merits 
standards'').
c. Requests for Reconsideration
    Comment: Several commenters opposed eliminating noncitizens' 
ability to request reconsideration of a negative credible fear 
determination by USCIS. Commenters stated that the opportunity to 
request reconsideration of a negative credible fear determination after 
IJ concurrence is an important safeguard against non-refoulement. One 
commenter noted that in the Asylum Processing IFR, the Departments 
counted at least 569 negative credible fear determinations that were 
changed to positive credible fear determinations after a request for 
reconsideration between FY 2019 and 2021. Commenters stated that USCIS 
should continue the practice of allowing requests for reconsideration, 
as it may be the only opportunity for noncitizens to present additional 
evidence that was not presented during the credible fear interview or 
to correct procedural defects in the credible fear interview, alleging 
that the IJ review process generally does not provide meaningful review 
and routinely affirms erroneous negative credible fear determinations. 
A commenter also claimed that even with the regulatory language 
acknowledging that USCIS maintains the discretion to reconsider its own 
negative credible fear determinations following IJ concurrence, it is 
unclear under the rule when or how USCIS would exercise its sua sponte 
authority to reconsider a negative credible fear finding.
    Response: The Departments disagree with comments urging USCIS to 
allow noncitizens to request reconsideration of negative credible fear 
determinations under the present rule. This rule does not eliminate the 
discretionary authority of USCIS to reconsider negative credible fear 
determinations concurred upon by an IJ, but instead only prohibits 
noncitizens from submitting a request to reconsider a negative credible 
fear determination in cases subject to the rule. 8 CFR 
208.35(b)(2)(v)(B). The Departments deem it appropriate to include this 
prohibition against requests for reconsideration in the rule to further 
its purpose of effectuating efficient yet fair credible fear case 
processing where emergency border circumstances are present. As noted 
in prior rulemakings, allowing requests for reconsideration of negative 
credible fear determinations diverts limited USCIS resources away from 
initial screenings, and relatively few such requests ultimately result 
in a reversal of the determination.\343\
---------------------------------------------------------------------------

    \343\ See Asylum Processing IFR, 87 FR at 18132; see also 88 FR 
at 31419.
---------------------------------------------------------------------------

    The Departments acknowledge that they previously provided 
information in the Asylum Processing IFR that USCIS counted at least 
569 negative credible fear determinations that were reversed after a 
request for reconsideration was submitted between FY 2019 through FY 
2021. The Departments note, however, that that number was out of a 
total of at least 5,408 requests for reconsideration that were 
submitted during those years. See 87 FR at 18132. Under the present 
rule, where emergency border circumstances are present and a credible 
fear determination is made pursuant to the rule's limitation on asylum 
eligibility, the Departments assess that, in light of the safeguards in 
place, efficiency interests outweigh the interest in providing an 
opportunity to request reconsideration.
    To the extent commenters argue that this provision of the rule 
implicates statutory or due process rights of noncitizens, the 
Departments note that noncitizens have no statutory right to request 
reconsideration of a negative credible fear determination. The Supreme 
Court has held that the due process rights of noncitizens applying

[[Page 81255]]

for admission at the border are limited to ``only those rights 
regarding admission that Congress has provided by statute.'' 
Thuraissigiam, 591 U.S. at 140. In establishing the streamlined 
procedures governing credible fear screening, Congress explicitly 
mandated that review of any negative credible fear determination made 
by an AO be conducted by an IJ and provided no mechanism for 
noncitizens to request reconsideration of the IJ's determination. INA 
235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III).
    With respect to commenters' concerns about fairness, the 
Departments note that all credible fear determinations, including 
determinations made under the processes set forth in this rule, will 
continue to be reviewed by a supervisory AO. See 8 CFR 208.30(e)(8); 
see also 89 FR at 48748. And the rule does not impact a noncitizen's 
right to request IJ review of a negative credible fear determination. 
Where requested, the IJ will evaluate the case de novo, including 
making a de novo determination as to whether there is a significant 
possibility the noncitizen could demonstrate they are not subject to 
the rule's limitation on asylum eligibility or are eligible for the 
exception. 8 CFR 208.35(b)(2)(iii)-(v), 1208.35(b). Accordingly, this 
rule ensures IJ review of the entirety of the negative credible fear 
determination, including application of the rule's limitation on asylum 
eligibility. To the extent commenters raise general concerns about IJ 
review of negative credible fear determinations, those concerns are 
outside the scope of this rulemaking.
    In response to the comment noting that it is unclear when USCIS 
would exercise its discretion to reconsider a negative credible fear 
determination sua sponte, the Departments note that the regulatory 
framework makes clear that USCIS possesses the inherent discretion to 
reconsider its own negative credible fear determination that has been 
concurred upon by an IJ, and that such discretion may be exercised on a 
case-by-case basis dependent on the facts and circumstances in an 
individual case. See, e.g., 8 CFR 1208.30(g)(2)(iv)(A) (2018) (noting 
that ``[t]he Service, however, may reconsider a negative credible fear 
finding that has been concurred upon by an immigration judge''); 
208.35(b)(2)(v)(B). As noted above, the Departments contend that the 
existing safeguards under the present rule comport with all statutory 
requirements and believe that these safeguards sufficiently address any 
concerns related to adequate review of negative credible fear 
determinations under the present rule.

D. Other Issues Relating to the Rule

1. Scope of the Rule and Implementation
a. Concerns That the Encounter Thresholds Are Too Low or Arbitrary
    Comment: Some commenters expressed concern with the 2,500-encounter 
threshold that would trigger the limitation on asylum eligibility for 
certain individuals who enter during emergency border circumstances. 
Some commenters characterized the threshold as ``arbitrary.'' Another 
commenter claimed that encounter rates have historically never fallen 
below the 2,500-encounter threshold due to the urgent humanitarian need 
and expressed concern that, contrary to the realities of forced 
displacement, the IFR limiting entries to 2,500 encounters effectively 
serves as a policy to close the border and end access to asylum.
    Several commenters remarked that the low threshold required for the 
limitation on asylum eligibility to be discontinued is unrealistic and 
would virtually guarantee the limitation would always be in place. One 
commenter expressed concern that 1,500 daily encounters is well below 
historical averages. Another commenter stated that in the past 6 FYs, 
monthly average border apprehensions consistently surpassed 1,500 
individuals. Similarly, another commenter stated that the ``emergency 
border circumstances'' would apply during 58 percent of all months this 
century. Another commenter stated that the 1,500-encounter threshold is 
unreasonable given the number of encounters at the SWB in 2024, which, 
according to the commenter, has lately hovered between 170,000 to 
190,000 per month, or around 6,000 people per day on average.
    While referencing the thresholds, a commenter remarked that the 
preamble acknowledges that the Departments cannot swiftly change from 
one means of processing to another. Citing high levels of border 
crossings since May 2023 (after the implementation of the Circumvention 
of Lawful Pathways rule), the commenter stated that the Departments' 
intent is to keep this rule in place indefinitely, punishing migrants 
in an attempt to deter them from seeking protection in the United 
States. A commenter warned that ``the mechanism for lifting the 
restrictions in the IFR is insufficient to meet the humanitarian needs 
at the U.S. border, jeopardizing the asylum system for many years to 
come.''
    Response: The Departments disagree that the numerical thresholds 
are arbitrary or too low. As explained in the IFR, the emergency border 
circumstances described in the June 3 Proclamation and this rule 
necessitate this rule's limitation on asylum eligibility and changes to 
the referral process and screening standard for statutory withholding 
of removal and CAT protection. See 89 FR at 48726-31. This is because, 
in such circumstances, DHS lacks the capacity to deliver timely 
consequences and must resort to large-scale releases of noncitizens 
pending section 240 removal proceedings. Id. at 48749. Such large-scale 
releases in the absence of this rule would lead to significant harms 
and incentivize human smuggling organizations to recruit more potential 
migrants based on the limitations on the Departments' ability to 
deliver timely decisions and consequences. Id. at 48749-50. The 1,500-
encounter threshold, as adopted in this rule, is a reasonable proxy for 
when the border security and immigration systems, as currently 
resourced, are no longer over capacity and the measures adopted in this 
rule are not necessary. Id. at 48750. And the 2,500-encounter 
threshold, as adopted in this rule, is a reasonable proxy for when 
there has been a significant degradation of DHS's ability to impose 
consequences at the border for individuals who do not establish a legal 
basis to remain in the United States. Id. at 48752. Were the resourcing 
of border security and immigration systems to change, this change (if 
sufficiently substantial) could trigger reassessment of these 
thresholds, in order to ensure that they reflect the Departments' 
ability to deliver timely decisions and consequences.
    In the IFR, the Departments demonstrated the reasonableness of the 
thresholds in two ways. First, the Departments explained that during 
the FY 2013 to FY 2019 pre-pandemic period, USBP total encounters 
(including all UCs) only exceeded 1,500 per day for a sustained period 
from October 2018 to August 2019. Id. at 48753. During that 7-year 
period, months in which daily encounters were between 1,500 and 2,500 
resulted in an average of 210 noncitizens released each day,\344\ while 
months in which daily

[[Page 81256]]

encounters exceeded 2,500 resulted in approximately 1,300 noncitizens 
released each day with CBP releasing as many as 46 percent of the 
individuals it processed pending section 240 removal proceedings. Id.
---------------------------------------------------------------------------

    \344\ Although the demographic composition of current encounters 
(e.g., a higher percentage of noncitizens encountered who assert 
fear claims) means that such a low release rate is likely 
unachievable in the near term, releases remain much lower when daily 
encounters are below the 2,500-encounter threshold. See 89 FR at 
48731; see also OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab, 
see cells L27 and M27).
---------------------------------------------------------------------------

    Second, the Departments demonstrated that at the 1,500-encounter 
level and assuming a similar level of voluntary returns and 
reinstatements to those seen during implementation of the Circumvention 
of Lawful Pathways rule, DHS would be able to refer for expedited 
removal more than 70 percent of the single adults and family unit 
individuals who are not quickly repatriated (through voluntary return 
or reinstatement), and would be able to repatriate a total of about 830 
noncitizens (i.e., 56 percent of the 1,500 encounters counted towards 
the threshold). Id. at 48752 & nn.274, 276. By contrast, at above 2,500 
encounters--the level at which the June 3 Proclamation and the IFR 
would again apply--DHS's ability to impose such consequences is 
significantly lower and decreases rapidly as encounters increase beyond 
that level; for instance, at that level DHS would be able to refer for 
expedited removal 43 percent of the single adults and family unit 
individuals who are not quickly repatriated, and would be able to 
repatriate a total of about 1,010 noncitizens (i.e., 40 percent of the 
2,500 encounters counted towards the threshold). Id. at 48752 nn.277-
278.
    In this second analysis as presented in the IFR, consistent with 
the June 3 Proclamation, DHS excluded encounters of UCs from non-
contiguous countries from the threshold counts. But as noted in the 
IFR, ``the demographics and nationalities encountered at the border 
significantly impact DHS's ability to impose timely consequences and 
the number of people who are ultimately released by CBP pending section 
240 removal proceedings. This is especially true for periods when CBP 
has encountered more UCs, family units, or individuals from countries 
to which it is difficult to effectuate removals.'' Id. at 48753. 
Consistent with this reality, the September 27 Proclamation and this 
rule include, in both thresholds, consideration of encounters of all 
UCs, including those from non-contiguous countries. As discussed in 
Section II.C.1 of this preamble and later in this Section III.D.1, most 
UCs are from non-contiguous countries, and the processing of all UCs 
requires the use of significant CBP resources.
    Including non-contiguous UCs in the 7-consecutive-calendar-day 
average calculation recognizes this impact. Depending on the levels of 
such UCs encountered at any given time, failing to include such UCs in 
the 1,500 and 2,500 encounter limits may result in an overestimate of 
resources available to the Departments to efficiently process 
noncitizens encountered at the SWB while delivering timely decisions 
and consequences to noncitizens who enter without a lawful basis to 
remain. This is because the number of UCs from non-contiguous countries 
encountered by USBP can fluctuate--something that models that assume 
stable demographics cannot fully account for. And if encounters of such 
UCs rise but are not included in the rule's thresholds, then those 
thresholds become much less useful predictors of overall capacity. 
Although encounters of UCs from non-contiguous countries have generally 
declined since the IFR took effect,\345\ their proportion of USBP 
encounters has increased,\346\ and the population of UCs from non-
contiguous countries at the border has surged on several occasions in 
the past.\347\
---------------------------------------------------------------------------

    \345\ See OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (USBP Encounters by Fam 
Status tab).
    \346\ See id.
    \347\ See OHSS, Immigration Enforcement and Legal Processes 
Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated Sept. 
10, 2024) (SWB encounters by family status from FY 2014 through May 
2024).
---------------------------------------------------------------------------

    As part of this final rule, DHS updated the second analysis 
discussed above to reflect more recent data and to demonstrate the 
impact on that analysis of counting all UCs--at current encounter 
levels--towards the encounter thresholds. The Office of Homeland 
Security Statistics (``OHSS'') updated the IFR's methodology by (1) 
applying fear claim rates for the entirety of the immediate post-
pandemic period (i.e., not ending in April 2024, as the prior analysis 
did), (2) assuming a demographic makeup (including with respect to UCs) 
similar to that observed between June 5, 2024, and July 30, 2024 for 
that entire period, and (3) including all UCs in the 1,500 and 2,500 
encounter figures.\348\
---------------------------------------------------------------------------

    \348\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (CLP v pre-CLP Proj 
Outcomes tab). The figures presented in the IFR were based on fear 
claim rates, demographics, and average expedited removal capacity 
under the Circumvention of Lawful Pathways rule; these rates were 
pulled in early April 2024. See 89 FR at 48752 nn.274, 276. For 
instance, based on data pulled in early April 2024, the figures in 
the IFR assumed that CBP could process approximately 900 USBP 
encounters for expedited removal per day and that 17 percent of 
encounters would result in rapid returns via voluntary return to 
Mexico, reinstatement of a removal order, or administrative removal. 
Id. Accounting for all of the immediate post-pandemic period (i.e., 
also, including April, May, and early June 2024), USBP averaged 
about 860 people processed for expedited removal per day during that 
time period. OHSS analysis of July 2024 Persist Dataset (Imm Pos 
Pandemic ERCF tab). CBP processed for expedited removal about 920 
people on average during that time. Id. From June 5, 2024 through 
August 31, 2024, CBP processed over 1,100 people for expedited 
removal per day and about 16 percent of encounters resulted in such 
rapid returns. OHSS analysis of data downloaded from UIP on 
September 3, 2024 (IFR Details tab, IFR ERCF tab, and CLP v pre-CLP 
Projection Tool tab).
---------------------------------------------------------------------------

    Under these parameters, at 1,500 encounters between the POEs 
(including all UCs) and assuming USBP is able to process 900 cases for 
expedited removal per day (as was approximately the case during the 
immediate post-pandemic period between May 12, 2023 and June 4, 2024), 
DHS would be able to refer for expedited removal 77 percent of the 
noncitizen single adults and individuals in family units who are not 
quickly repatriated, and would be able to repatriate a total of about 
880 noncitizens per day (i.e., under 60 percent of the 1,500 encounters 
counted towards the threshold).\349\
---------------------------------------------------------------------------

    \349\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (CLP v pre-CLP Proj 
Outcomes tab).
---------------------------------------------------------------------------

    Similarly, at 2,500 encounters between the POEs (including all UCs) 
and assuming USBP can process 900 people for expedited removal per day, 
DHS would be able to refer for expedited removal 46 percent of the 
single adults and individuals in family units who are not quickly 
repatriated, and would be able to repatriate a total of about 1,040 
noncitizens per day (i.e., over 40 percent of the 2,500 encounters 
counted towards the threshold).\350\
---------------------------------------------------------------------------

    \350\ Id.
---------------------------------------------------------------------------

    The Departments caution that this type of analysis depends on a 
range of assumptions regarding capacity, fear claim rates, screen-in 
rates, and geographic and demographic distribution of encounters, among 
other variables. A change in these variables--for instance, a spike in 
UC encounters--could place a strain on custody resources that would 
further reduce the Departments' overall capacity to deliver timely 
decisions and consequences, such as by processing noncitizens for 
expedited removal. The analysis does show, however, that the change to 
the thresholds to include counting of all UCs is incremental in nature 
and consistent with the rule's overall purpose.
    Finally, with respect to claims that either threshold effectively 
serves as a policy to ``close the border'' and end access to asylum, 
the Departments

[[Page 81257]]

disagree. The Departments also disagree with commenters' specific 
claims about historical encounter rates and numbers. Commenters are 
incorrect that daily encounters rates have never fallen below 
2,500.\351\ Commenters are also wrong that an average of 1,500 daily 
encounters is far below historical averages. From FY 2013 through FY 
2019, the 7-consecutive-calendar-day average of encounters was below 
1,500 nearly 80 percent of the time, and above 2,500 approximately 5 
percent of the time.\352\ And for over 70 percent of days during that 
time frame, the 7-consecutive-calendar-day average had been below 1,500 
encounters for 28 consecutive days.\353\ Over a longer time period, 
from FY 2009 through FY 2020, there were a total of only four months 
(all during the spring 2019 family unit surge) that encounters averaged 
more than 2,500 per day.\354\ One commenter argued that in the past six 
fiscal years, monthly average apprehensions have consistently surpassed 
1,500 noncitizens. But this only shows that the past six fiscal years 
have generally been times of historically high migrations, and the 
Departments established the 1,500-encounter daily threshold not by 
selecting an arbitrary figure but by estimating capacity to deliver 
timely consequences at current resource levels.
---------------------------------------------------------------------------

    \351\ Average daily encounters averaged 1,310 between FYs 2011 
and 2018. In FY 2009, average daily encounters were approximately 
1,200. See OHSS analysis of July 2024 Persist Dataset (Daily 
Encounters FY2000-2024 tab).
    \352\ Consistent with the September 27 Proclamation, this 
calculation includes encounters of UCs from non-contiguous 
countries. If, consistent with the June 3 Proclamation, one excludes 
such UCs from non-contiguous countries, the 7-consecutive-calendar-
day average was below 1,500 nearly 85 percent of the time and above 
2,500 only 4 percent of the time. See OHSS analysis of July 2024 
Persist Dataset (Trigger Analysis tab).
    \353\ Consistent with the September 27 Proclamation, this 
calculation includes encounters of UCs from non-contiguous 
countries. If, consistent with the June 3 Proclamation, one excludes 
such UCs from non-contiguous countries, the resulting figure is just 
below 80 percent. See OHSS analysis of July 2024 Persist Dataset 
(Trigger Analysis tab).
    \354\ OHSS analysis of July 2024 Persist Dataset (Encounters FY 
2000-2024 tab).
---------------------------------------------------------------------------

    Even since the IFR took effect, encounters have dropped to levels 
indicating that it is possible the 1,500-encounter threshold will be 
met in the future. If, consistent with the June 3 Proclamation and IFR, 
one excludes UCs from non-contiguous countries, the 7-consecutive-
calendar-day average has been below 2,000 encounters since June 
27.\355\ And if, consistent with the September 27 Proclamation and this 
rule, one includes such UCs, the 7-consecutive-calendar-day average has 
been below 2,000 encounters since June 29.\356\
---------------------------------------------------------------------------

    \355\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Section 2c Encounters Tab).
    \356\ Id.
---------------------------------------------------------------------------

b. Concerns Regarding Exceptions From the Encounter Thresholds
    Comment: A commenter remarked that there are too many exceptions to 
the types of encounters that are counted daily. The commenter stated 
that it is ``hard to count up to 1,500'' when there are so many 
exceptions. The commenter used the exception for non-contiguous country 
UCs, who are not counted under the June 3 Proclamation, as an example. 
The commenter stated that this exception encourages the trafficking of 
children and prevents reporting these as encounters. The commenter also 
objected to the exception for noncitizens who are determined to be 
inadmissible at a SWB POE, which the commenter asserted significantly 
limits the number of encounters considered.
    Another commenter expressed similar concerns regarding the 
exclusion of UCs from the 2,500-encounter threshold. The commenter 
stated that the current UC policies, influenced by the Flores 
Settlement Agreement and the William Wilberforce Trafficking Victims 
Protection Reauthorization Act of 2008, are susceptible to 
exploitation. The commenter further noted that during the current 
Administration, UC encounters have exponentially increased, with more 
than 480,000 UCs encountered at the southern border between POEs. The 
commenter cautioned that without counting all UC encounters towards the 
1,500-encounter threshold, existing policies may be further abused by 
criminal elements, leading to increased risks for UCs, such as human 
trafficking and other forms of exploitation. The commenter remarked 
that in addition to excluding non-contiguous country UCs, the encounter 
thresholds in the IFR also exclude 1,650 encounters every day at POEs, 
plus 30,000 noncitizens processed every month through the CHNV parole 
processes.
    Response: Regarding UCs from non-contiguous countries, as discussed 
in Section II.C.1 of this preamble, the September 27 Proclamation 
amends the June 3 Proclamation to remove section 2(c), which provided 
that UCs from non-contiguous countries shall not be included in 
calculating the number of encounters, and this rule makes a parallel 
change. As discussed in Section II.C.1 of this preamble, the 
Departments' experience implementing the IFR has shown that excluding 
encounters of UCs from non-contiguous countries results in an 
incomplete assessment of the Departments' resources and capabilities. 
UCs, regardless of their country of origin or nationality, require 
considerable resources to process and safely hold in CBP facilities and 
the Departments have in the past experienced surges of encounters of 
such UCs.\357\ One of the primary purposes of this rule is to alleviate 
undue strain on the limited resources of border security and 
immigration systems, and through their experience with the IFR the 
Departments have recognized the need to consider the full operational 
burden that results from all UC encounters at the southern border. The 
resource burden posed by UCs from non-contiguous countries, along with 
recent increases in the proportion of such UCs relative to types of 
encounters, support the Departments' determination that UCs from all 
countries, not just from contiguous countries, are relevant to the 
thresholds contained in the rule.
---------------------------------------------------------------------------

    \357\ See OHSS, Immigration Enforcement and Legal Processes 
Monthly Tables, https://www.dhs.gov/ohss/topics/immigration/enforcement-and-legal-processes-monthly-tables (last updated Sept. 
10, 2024) (SWB encounters by family status from FY 2014 through May 
2024).
---------------------------------------------------------------------------

    The Departments disagree that the encounter thresholds should 
include daily encounters at the SWB POEs or CHNV parolees. The IFR 
applies only when encounters strain the border security and immigration 
systems' capacity. To date, this strain has been caused primarily by 
increased encounters between POEs. CBP can more efficiently process 
those at SWB POEs, particularly those who have used the CBP One app to 
make an appointment. In the past several years, processing capacity at 
POEs has been significantly expanded, enabling CBP to manage processing 
of noncitizens in a safe and efficient manner. However, despite the 
efforts to increase capacity within the limits of available resources 
and funding, processing between POEs continues to tax DHS resources and 
remains very resource intensive.
    The CHNV processes do not adversely affect the Departments' 
resources at the southern border because noncitizens arriving under the 
CHNV processes travel by air to an interior POE.\358\ The Departments 
do not believe it necessary or appropriate to include noncitizens who 
use the CHNV processes as part of encounter calculations under this 
rule for that reason.
---------------------------------------------------------------------------

    \358\ See, e.g., Implementation of a Parole Process for 
Nicaraguans, 88 FR 1255, 1256, 1263 (Jan. 9, 2023); USCIS, Processes 
for Cubans, Haitians, Nicaraguans, and Venezuelans (last updated 
Aug. 29, 2024), https://www.uscis.gov/CHNV.

---------------------------------------------------------------------------

[[Page 81258]]

c. Other Concerns About the Encounter Thresholds
    Comment: A commenter wrote that it is reasonable to assume the 
threshold for suspending the rule will not be met in the foreseeable 
future, because even if the number of encounters dropped to the level 
where the 1,500-encounter threshold might be met, the Departments could 
issue a new IFR to keep the procedure in place. A commenter stated that 
the IFR provides no end dates and the Departments do not provide an 
explanation as to why the IFR should be in place indefinitely.
    Response: The Departments disagree with the suggestion that they 
would perpetually take actions to lower the threshold for 
discontinuation solely to keep these emergency measures in place. If 
the Departments intended to permanently have these measures in place, 
they could have made the IFR apply indefinitely without using encounter 
thresholds. The two changes to the threshold made in this rule and the 
September 27 Proclamation are incremental in nature and consistent with 
the underlying purpose of the June 3 Proclamation. The Secretary will 
monitor encounter levels and make relevant determinations consistent 
with the September 27 Proclamation. Should further policy changes prove 
necessary--whether in response to comments submitted in response to 
this final rule's request or in another context--the Departments may 
take appropriate action to implement such changes. Additionally, the 
rule does not contain specific end dates because its measures are 
designed to be responsive to patterns in daily encounters. The IFR does 
not contain an overall expiration date because, due to the 
unpredictable nature of migration trends and for so long as Congress 
fails to increase the Departments' resources and modernize the current 
U.S. immigration system, such measures will be necessary when the 
Departments' operational capacity, as measured by daily encounter 
thresholds, is greatly overwhelmed.
    Comment: A commenter stated that it would be challenging for 
noncitizens to know when thresholds have been met. The commenter stated 
that they had surveyed migrants in Mexico and over half of respondents 
in the first half of 2024 affirmed that they do not understand the 
requirements and processes for accessing U.S. territory, and that 
nearly half of respondents in certain areas confirmed that the main 
channel through which they receive information on policy changes is 
word of mouth, while around a third receive this information through 
social media. The commenter said noncitizens would not be able to 
discern the application of the IFR without access to official 
information, particularly given that, according to the commenter, the 
United States Government does not currently publish statistics on 
encounters. The commenter wrote that even when some noncitizens might 
be aware of the dynamics of irregular movements, this awareness is 
likely to be limited to the specific region of the SWB where they are 
located and would very likely not cover the overall number of 
encounters.
    The commenter stated that, given the swiftness with which the 
limitations established under the IFR can be invoked and applied, they 
are not likely to influence the ability of noncitizens in different 
parts of the transit route to adapt their decisions to increase their 
chances of receiving the protection that they need. The commenter 
stated that those who are already at or around Mexico's northern border 
when the rule's provision apply cannot meaningfully consider any 
potential alternative pathways. The commenter further stated that a 
significant proportion of people of concern present in Mexico could be 
ineligible for certain alternatives. For example, 97.9 percent of 
respondents to the commenter's protection monitoring activities during 
the first semester of 2024 reported having entered Mexico irregularly, 
which could render them ineligible for certain parole processes. The 
commenter stated that as a result, persons of concern are unlikely to 
become aware of when the additional limitations on asylum eligibility 
would apply with sufficient lead time to be able to adapt their 
decisions. This will thus undermine their ability to make decisions 
that increase their chances of receiving the protection that they need.
    The commenter further stated that confusion around changing 
policies and practices governing access to U.S. territory has fueled 
the widespread belief that there are certain moments when the U.S. 
border is ``open'' and others when it is ``closed,'' and that access to 
U.S. territory requires individuals to remain close to the border and 
attentive to any information suggesting that the border is ``open.'' 
The commenter stated that the IFR has already contributed to this 
dynamic, with migrants along the U.S.-Mexico border expressing their 
understanding that the new limitations effectively ``close off'' access 
to U.S. territory. According to the commenter, this has led to 
desperation and fostered the likelihood that the population resorts to 
imprecise and misleading information provided by human traffickers or 
on social media.
    Response: DHS posts statistics on SWB encounters on CBP's 
website.\359\ The website includes data extracted from CBP systems and 
data sources regarding encounters with single adults, individuals in 
family units, and UCs. Information about the status of the suspension 
and limitation on entry, and the related provisions in this rule, is 
available in English and Spanish at: https://www.dhs.gov/immigrationlaws. In addition, regardless of whether the threshold for 
discontinuing or continuing or reactivating the suspension and 
limitation on entry under the Proclamation or the limitation on asylum 
eligibility under this rule has been met, migrants may, for instance, 
arrive in the United States at a SWB POE pursuant to a process the 
Secretary determines is appropriate to allow for the safe and orderly 
entry of noncitizens into the United States.
---------------------------------------------------------------------------

    \359\ CBP, Southwest Land Border Encounters (last modified Sept. 
16, 2024), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.
---------------------------------------------------------------------------

    For similar reasons, the Departments do not believe that it is 
necessary to adjust the rule to ensure that the potentially ``abrupt'' 
nature of its provisions allows sufficient time for those already in 
Mexico to adjust their behavior in order to access protection. The IFR 
was not the first time that the Departments encouraged migrants to use 
lawful, safe, and orderly pathways to come to the United States. The 
Circumvention of Lawful Pathways rule also incentivized the use of such 
pathways, see generally 8 CFR 208.33, 1208.33, and since their 
inception, the CHNV parole processes have included an ineligibility for 
those who crossed into Mexico irregularly, see, e.g., Implementation of 
a Parole Process for Nicaraguans, 88 FR at 1263; Implementation of a 
Parole Process for Venezuelans, 87 FR 63507, 63515 (Oct. 19, 2022). And 
the CBP One app remains available to noncitizens in Mexico.\360\ The 
rule also provides an exception for those who are able to demonstrate 
exceptionally compelling circumstances, see 8 CFR 208.35(a)(2)(i)

[[Page 81259]]

and (ii), 1208.35(a)(2)(i) and (ii), and the rule's limitation on 
asylum eligibility does not apply those who are excepted under the 
Proclamation, see 8 CFR 208.35(a)(1), 1208.35(a)(1). And the rule 
preserves access to statutory withholding of removal, as well as CAT 
protection. See 8 CFR 208.35(b)(2), 1208.35(b). Thus, migrants already 
in Mexico have the ability under the rule to access available 
protection.
---------------------------------------------------------------------------

    \360\ See CBP, CBP One<SUP>TM</SUP> Mobile Application (last 
modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone. On August 23, 2024, CBP expanded the areas from 
which noncitizens can request appointments through the CBP One app. 
With this expansion, Mexican nationals will be able to request an 
appointment from anywhere within Mexico. Additionally, non-Mexican 
nationals will be able to request and schedule appointments from the 
Southern Mexico states of Tabasco and Chiapas, in addition to their 
existing ability to request and schedule an appointment from 
Northern and Central Mexico--enabling them to make appointments 
without having to travel all the way north to do so. See id.
---------------------------------------------------------------------------

    The Departments acknowledge the potential that some migrants would 
perceive the possibility of abrupt changes in procedures at the 
southern border as a reason to remain close to the border and attentive 
to any information suggesting that the border is or soon will be 
``open.'' In the IFR, the Departments explained that ``[t]he 14-day 
waiting period prior to a discontinuation provides time for the 
Departments to complete processing of noncitizens encountered during 
emergency border circumstances and to confirm that a downward trend in 
encounters is sustained.'' 89 FR at 48749 n.248. This rule makes an 
additional change that addresses this concern: The rule's provisions 
will not be discontinued unless there has been a 7 consecutive-
calendar-day average of less than 1,500 encounters that is sustained 
over a period of 28 days. The Departments expect that this change, 
coupled with the 14-day waiting period after the Secretary makes a 
factual determination to discontinue the suspension and limitation on 
asylum eligibility, will reduce any perceived incentive to remain close 
to the U.S.-Mexico border in anticipation of a rapid change in policy.
    Comment: A commenter wrote that while DHS has created a website 
that states whether the border is currently open or closed, it is 
unlikely that noncitizens in desperate conditions in Mexico would 
review the website before deciding to cross the border. Further, the 
commenter stated that, if the border were to reopen under the rule, it 
seems inevitable that smugglers would charge higher fees to move 
noncitizens across the border, and that if noncitizens understand the 
rule at all, they will flood the border when the suspension and 
limitation discontinues--leading again to its immediate closure. The 
commenter stated that the burden of tracking, identifying, and applying 
different standards over a matter of days is significantly more complex 
for USCIS personnel as they consider protection claims. The commenter 
expressed concern that the preamble to the IFR did not consider that 
this complexity would affect and complicate merits adjudications and 
lead to longer, more complex hearings in an already overwhelmed, 
backlogged system.
    Response: As noted in Section II.A.2 of this preamble, encounters 
between POEs have dropped substantially since implementation of the 
IFR, suggesting that many migrants have not responded as the commenter 
predicted. But in any event, if a migrant were to disregard the 
existence of the rule and other restrictions on crossing between POEs, 
or if a migrant who is unaware of the existence of the rule were to 
cross between the POEs, the rule would allow the Departments to swiftly 
deliver decisions and consequences, while allowing noncitizens who are 
able to demonstrate the existence of exceptionally compelling 
circumstances to avoid application of the rule's limitation on asylum 
eligibility and preserving access to statutory withholding of removal 
and CAT protection, as discussed in the preceding response.
    With respect to the commenter's suggestion that noncitizens could 
respond to the discontinuation of the rule's provisions by ``flood[ing] 
the border'' and ``leading again to its immediate closure,'' to the 
extent there is a prospect of such actions, this highlights the need 
for this rule, the overall effect of which will be to combat such 
actions by alleviating stresses on the border security and immigration 
systems at the southern border; it is not a reason to withdraw the 
rule. Moreover, the historical encounter data discussed in Section II.C 
of this preamble suggest that when regional migration decreases, 
encounter numbers often remain below 2,500 for very long periods. Those 
data militate against the commenter's view that encounters will 
inevitably rise quickly above 2,500.
    Further, as discussed in Section II.C of this preamble, the 
September 27 Proclamation and this rule revise the timeline for the 
1,500-encounter threshold to reduce the probability that an ephemeral 
drop in encounters would result in rapid shifts in applicable policy. 
With respect to the commenter's concern about complexity for Government 
personnel, the use of a 7-consecutive-calendar-day average, combined 
with the new requirement for the average to be below 1,500 encounters 
for each of 28 consecutive calendar days, also reduces the prospect of 
undue complexity. Although some section 240 removal proceedings and 
credible fear interviews may become more complex by virtue of this 
rule's provisions, many such proceedings may be avoided entirely. See, 
e.g., 89 FR at 48767 (``[T]he Departments expect the additional time 
spent by AOs and IJs on implementation of the rule to be mitigated by a 
comparatively smaller number of credible fear cases than AOs and IJs 
would otherwise have been required to handle in the absence of the 
rule.'').
2. Other Comments on Issues Relating to the Rule
    Comment: Commenters asked how USCIS' implementation of the IFR 
would be funded, remarking that the funds to execute the IFR as written 
have not been allocated.
    Response: USCIS applies the IFR's provisions as part of the 
credible fear determination or the full asylum adjudication. It is not 
a discrete or separate adjudication that would require its own funding 
stream separate from that which is used for credible fear 
determinations or asylum adjudications.
    Comment: Commenters expressed concern about their ability to 
comment on the proposals in DHS's recent Mandatory Bars NPRM, the 
comment period for which ended four days after the IFR published. For 
example, a commenter noted that, in the IFR, the Departments expressly 
asked for comment on the interaction between the two rules, including 
whether to explicitly apply the heightened ``reasonable probability'' 
standard to those who are subject to a mandatory bar but not subject to 
the Circumvention of Lawful Pathways rule, but the commenter asserted 
that they could not provide comment on those issues without knowing how 
and whether DHS plans to finalize the DHS Mandatory Bars NPRM. 
Commenters also stated that DHS failed to analyze the interaction 
between the two rulemakings, which they stated will create additional 
hurdles for noncitizens seeking asylum and will lead to inconsistencies 
and potential challenges in processing. Commenters expressed the need 
for a comprehensive examination of how the policies overlap to avoid 
uncertainty.
    Response: The Departments disagree that commenters did not have 
adequate opportunity to comment on the potential interaction between 
the DHS Mandatory Bars NPRM and the IFR. Indeed, as the commenters 
note, the Departments requested comment in the IFR on whether to expand 
8 CFR 208.35(b)(3) (directing asylum officers to apply a reasonable 
probability screening standard in protection screenings in the event 
that 8 CFR 208.35(a) is held to be invalid or unenforceable) to cover 
``those who are found not to have a significant possibility of 
eligibility for asylum because they are barred from asylum due to a 
mandatory bar to

[[Page 81260]]

asylum eligibility if the [DHS Mandatory Bars NPRM] is finalized.'' 89 
FR at 48756. The DHS Mandatory Bars NPRM provides ample notice of the 
proposed mandatory bars policy, and the commenters do not explain with 
any specificity why they must review any final rule associated with the 
DHS Mandatory Bars NPRM in order to provide relevant comments about its 
potential impact on the IFR.
    Moreover, the Departments have considered the interaction between 
the two rulemakings and do not believe any corresponding changes to 
this rule are necessary. While both rules address DHS screening 
procedures, the DHS Mandatory Bars NPRM relates to a different issue 
than the issues raised in this rulemaking. The DHS Mandatory Bars NPRM 
proposes to allow AOs to consider the applicability of certain 
statutory bars to asylum, statutory withholding of removal, and 
withholding of removal under the CAT regulations during credible fear 
screenings, but it does not propose changes to the substantive 
screening standards by which AOs make their credible fear 
determinations. See generally 89 FR at 41347-61. On the other hand, the 
IFR established a new ``reasonable probability'' standard for the 
statutory withholding and CAT screening of noncitizens determined to be 
subject to the IFR's limitation on asylum eligibility. 8 CFR 
208.35(b)(2)(i), 1208.35(b)(2)(iii). Except for this changed screening 
standard, the AO and IJ would otherwise follow the pre-existing 
standards at 8 CFR 208.30, 208.33, 1208.30, or 1208.33, as applicable. 
Id. Accordingly, as stated in the IFR, if DHS finalizes the DHS 
Mandatory Bars NPRM as drafted, the ``reasonable probability'' standard 
would still apply to determinations involving a noncitizen who is 
subject to this rule's limitation on asylum eligibility. 89 FR at 48739 
n.186.
    Comment: A commenter added that the Departments failed to explain 
how the IFR will interact with the Circumvention of Lawful Pathways 
rule.
    Response: In the IFR, the Departments explained how the IFR will 
interact with another recent rule, the Circumvention of Lawful Pathways 
rule. 89 FR at 48754. The Departments explained that they were adding 
to 8 CFR 208.13 and 1208.13 a paragraph (g), entitled ``Entry during 
emergency border circumstances,'' which ``explain[s] when a noncitizen 
is potentially subject to th[e] IFR's limitation on asylum eligibility 
and credible fear screening procedures and how this limitation and its 
associated procedures interact with the Lawful Pathways condition 
referenced in paragraph (f) of 8 CFR 208.13 and 1208.13.'' Id. These 
new paragraphs added to 8 CFR 208.13 and 1208.13 provide that, ``[f]or 
an alien who entered the United States across the southern border (as 
that term is described in section 4(d) of the Presidential Proclamation 
of June 3, 2024, Securing the Border) between the dates described in 
section 1 of such Proclamation and section 2(a) of such Proclamation 
(or the revocation of such Proclamation, whichever is earlier), or 
between the dates described in section 2(b) of such Proclamation and 
section 2(a) of such Proclamation (or the revocation of such 
Proclamation, whichever is earlier), refer to the provisions on asylum 
eligibility described in Sec.  208.35.'' 8 CFR 208.13(g), 1208.13(g).
    In short, during emergency border circumstances, those who enter 
across the southern border are subject to this rule, 
``[n]otwithstanding'' the Circumvention of Lawful Pathways rule or any 
other regulatory provision. See 8 CFR 208.35, 1208.35. A noncitizen who 
establishes exceptionally compelling circumstances under this rule has 
established exceptionally compelling circumstances under the 
Circumvention of Lawful Pathways rule. See 8 CFR 208.35(a)(2)(iii), 
1208.35(a)(2)(iii). And the credible fear process under this rule uses 
the same framework as the Circumvention of Lawful Pathways rule, except 
for the use of a ``reasonable probability'' screening standard. See 8 
CFR 208.35(b)(1)(ii), (b)(2)(i), (c), 1208.35(b)(2)(i), (b)(2)(iii), 
(c). The Departments described the provisions of the regulatory text in 
detail in the IFR's preamble. 89 FR at 48754-48759; id. at 48762-66.
    Comment: A commenter asserted that recent rulemakings have 
complicated the asylum system and that the Departments have not 
provided reliable information about those changes to affected 
noncitizens.
    Response: The Departments acknowledge that recent rulemakings have 
modified the credible fear screening process to better enable the 
Departments to deliver timely decisions and consequences to noncitizens 
entering across the southern border who do not have a basis to remain 
in the United States. Specifically, in the past two and a half years, 
the Departments have issued the Asylum Processing IFR, the 
Circumvention of Lawful Pathways rule, and the IFR discussed here. DHS 
has also issued a proposed rule--the DHS Mandatory Bars NPRM. Each rule 
has been accompanied by detailed preamble discussion and regulatory 
text. In addition to the public-facing materials, although not required 
to by law, the Departments have executed robust communications plans to 
notify and inform the public about the consequences of irregular 
migration while noting the expansion of lawful pathways and the tools 
that can be used to access those lawful pathways.\361\ The public 
engagement plans have both domestic and international dimensions.\362\ 
Domestically, these plans have included engagement with NGOs, 
international organizations, legal services organizations, and 
others.\363\ Internationally, the Departments have also executed 
communications campaigns throughout the Western Hemisphere in 
coordination with interagency partners and partner governments to 
educate migrants and would-be migrants about lawful pathways and 
consequences for not using them.\364\ This includes media engagements 
with in-country reporters, graphics and explainer videos, and press 
releases highlighting removal flights as a direct consequence of

[[Page 81261]]

coming to the United States irregularly.\365\
---------------------------------------------------------------------------

    \361\ See U.S. Department of State, U.S. Government Response to 
Migration in the Americas (Nov. 17, 2023), https://www.state.gov/briefings-foreign-press-centers/us-government-response-to-migration-in-the-americas; USCG, Press Release: Task Force continues to 
prevent irregular, unlawful maritime migration to United States 
(April 12, 2024), https://www.news.uscg.mil/Press-Releases/Article/3739500/task-force-continues-to-prevent-irregular-unlawful-maritime-migration-to-united/.
    \362\ See U.S. Department of State, U.S. Government Response to 
Migration in the Americas (Nov. 17, 2023), https://www.state.gov/briefings-foreign-press-centers/us-government-response-to-migration-in-the-americas; USCG, Press Release: Task Force continues to 
prevent irregular, unlawful maritime migration to United States 
(Apr. 12, 2024), https://www.news.uscg.mil/Press-Releases/Article/3739500/task-force-continues-to-prevent-irregular-unlawful-maritime-migration-to-united/; DHS, Fact Sheet: Department of State and 
Department of Homeland Security Announce Additional Sweeping 
Measures to Humanely Manage Border through Deterrence, Enforcement, 
and Diplomacy (May 10, 2023), https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-manage-border.
    \363\ See U.S. Department of State, Secretary Antony J. Blinken 
and Secretary of Homeland Security Alejandro Mayorkas Opening 
Remarks at the Ministerial Conference on Migration and Protection 
Reception (Apr. 19, 2022), https://www.state.gov/secretary-antony-j-blinken-and-secretary-of-homeland-security-alejandro-mayorkas-opening-remarks-at-the-ministerial-conference-on-migration-and-protection-reception/.
    \364\ See U.S. Department of State, U.S. Government Response to 
Migration in the Americas (Nov. 17, 2023), https://www.state.gov/briefings-foreign-press-centers/us-government-response-to-migration-in-the-americas; see also USCG, Press Release: Task Force continues 
to prevent irregular, unlawful maritime migration to United States 
(April 12, 2024), https://www.news.uscg.mil/Press-Releases/Article/3739500/task-force-continues-to-prevent-irregular-unlawful-maritime-migration-to-united/.
    \365\ See Ecuador Envivo, La tragedia detr[aacute]s de la 
migraci[oacute]n irregular, una desgarradora realidad (The tragedy 
behind irregular migration, a heartbreaking reality) (July 31, 
2024), https://ecuadorenvivo.com/blog/2024/07/31/la-tragedia-humana-detras-de-la-migracion-expertos-analizan-crisis-de-migracion-irregular/; see also ICE, ICE conducts single adult, family unit 
removal flights Aug. 9 (Aug. 9, 2024), https://www.ice.gov/news/releases/ice-conducts-single-adult-family-unit-removal-flights-aug-9-0.
---------------------------------------------------------------------------

    The Departments understand concerns about changes to southern 
border processing. However, as discussed throughout the June 3 
Proclamation, the IFR, and this rule, the circumstances at the southern 
border have changed, and U.S. policy has had to change with them to 
ensure the effective functioning of the immigration and border 
management systems. The Departments have consistently encouraged 
noncitizens seeking to enter the United States to pursue lawful, safe, 
and orderly pathways to do so, and they continue to provide that 
encouragement now.
    Comment: One commenter expressed concern that the Departments 
failed to analyze how the IFR interacts with the DHS Policy and 
Guidelines for the Use of Classified Information in Immigration 
Proceedings (May 9, 2024).\366\
---------------------------------------------------------------------------

    \366\ DHS, DHS Policy and Guidelines for the Use of Classified 
Information in Immigration Proceedings (May 9, 2024), https://www.dhs.gov/publication/dhs-policy-and-guidelines-use-classified-information-immigration-proceedings.
---------------------------------------------------------------------------

    Response: The Departments acknowledge that the IFR did not discuss 
DHS guidelines governing the use of classified or confidential 
information, but the IFR does not contain any provisions calling for or 
governing the use of classified information. Regardless, the rule and 
DHS's policy on the use of classified information in immigration 
proceedings are harmonious. The INA permits the use of classified 
information in certain immigration proceedings, and noncitizens have no 
right to examine classified national security information that DHS may 
consider or proffer in opposition to the noncitizen's admission to the 
United States or application for relief from removal. INA 235(c), 8 
U.S.C. 1225(c); INA 240(b)(4)(B), 8 U.S.C. 1229a(b)(4)(B); 8 CFR 
235.8(b)(3), 1240.33(c)(4). That was the case before DHS issued its 
updated policy and guidance on the use of classified information in 
immigration proceedings on May 9, 2024. The updated guidance does not 
alter those fundamental principles or the type of information that may 
be used in the immigration proceedings governed by the IFR,\367\ and so 
there was no need for the Departments to address the interaction 
between the IFR and the new classified information policy.
---------------------------------------------------------------------------

    \367\ The previous policy and guidelines permitted the use of 
classified national security information in an individual's 
immigration proceedings only as a matter of last resort. See DHS, 
DHS Guidelines for the Use of Classified Information in Immigration 
Proceedings (Oct. 4, 2004), https://www.dhs.gov/publication/dhs-policy-and-guidelines-use-classified-information-immigration-proceedings-october. The new policy and guidelines now permit the 
use of classified national security information as the Department 
deems necessary to protect our national security and public safety 
interests, subject to procedures outlined in the new guidance. See 
DHS, DHS Policy and Guidelines for the Use of Classified Information 
in Immigration Proceedings (May 9, 2024), https://www.dhs.gov/publication/dhs-policy-and-guidelines-use-classified-information-immigration-proceedings. Neither the new or old policies and 
guidelines provide the individual who is subject to the immigration 
proceedings any entitlement to review classified national security 
information. Such classified information would be reviewed either ex 
parte or in camera.
---------------------------------------------------------------------------

E. Statutory and Regulatory Requirements

1. Administrative Procedure Act
    Comment: Commenters expressed concerns with the Departments' 
decision to issue an IFR instead of an NPRM, and the Departments' 
invocation of the ``foreign affairs'' and ``good cause'' exceptions. 
Commenters stated that the Departments have not proved that either 
exception applies and, therefore, argued the IFR did not comply with 
the APA.
    Response: Under the APA, agencies must generally provide ``notice 
of proposed rule making'' in the Federal Register and, after such 
notice, ``give interested persons an opportunity to participate in the 
rule making through submission of written data, views, or arguments.'' 
5 U.S.C. 553(b) and (c). The APA further provides that the required 
publication or service of a substantive rule shall be made not less 
than 30 days before its effective date, except in certain 
circumstances. Id. 553(d). However, consistent with the APA, the 
Departments did not employ these procedures before issuing the IFR 
because (1) the IFR involved a foreign affairs function of the United 
States and thus is excepted from such requirements, id. 553(a)(1), and 
(2) the Departments found good cause to proceed with an immediately 
effective interim final rule, id. 553(b)(B), 553(d)(3). See also 89 FR 
at 48759-66 (explaining use of these APA exceptions). Because the 
Departments have now issued this final rule after soliciting comments, 
those concerns are moot--but regardless, the Departments address 
commenters' concerns below.
a. Foreign Affairs Exception
    Comment: A commenter suggested that the Departments' invocation of 
the foreign affairs exception is inappropriate because this exception 
has been ``selective[ly] appli[ed],'' pointing to other rules 
concerning processing of noncitizens at the border (the Circumvention 
of Lawful Pathways rule and the DHS Mandatory Bars NPRM) for which the 
Departments did not invoke this exception. Another commenter remarked 
that the foreign affairs exception cannot apply because the IFR is a 
``unilateral action'' by the United States, seemingly without any 
formal agreements with Mexico or other affected countries, and the 
rule's effects might exacerbate undesirable international consequences. 
A third commenter stated that the foreign affairs exception does not 
apply to rulemakings concerning the U.S. border, stating that these are 
matters of domestic policy. Similarly, another commenter noted that 
Federal courts have previously informed agencies that these exceptions 
to the APA's notice-and-comment requirement ``do not apply to 
regulations that alter domestic law around asylum eligibility.'' A 
fifth commenter expressing opposition to the Departments' invocation of 
the foreign affairs exception remarked that the exception's 
interpretation is ``overly broad.''
    Response: The IFR is excepted from the APA's notice-and-comment and 
delayed-effective-date requirements because it involves a ``foreign 
affairs function of the United States.'' 5 U.S.C. 553(a)(1). Courts 
have held that this exception applies when the rule in question is 
``clearly and directly involve[d]'' in ``a foreign affairs function.'' 
E.B. v. U.S. Dep't of State, 583 F. Supp. 3d 58, 63 (D.D.C. 2022) 
(cleaned up). In addition, although the text of the APA does not 
require an agency invoking this exception to show that such procedures 
may result in ``definitely undesirable international consequences,'' 
some courts have required such a showing. See, e.g., Rajah v. Mukasey, 
544 F.3d 427, 437 (2d Cir. 2008) (quotation marks omitted). This rule 
satisfies both standards. Nevertheless, the Departments provided an 
opportunity for public comment after issuing the IFR and in this final 
rule are responding to those comments.
    With respect to comments asserting this rule represents 
``unilateral action'' by the United States, the United States' border 
management strategy, as further developed in this rule, is predicated 
on the belief that migration is a shared responsibility among all 
countries in the

[[Page 81262]]

region--a fact reflected in the intensive and concerted diplomatic 
outreach on migration issues that DHS and the Department of State have 
made with partners throughout the Western Hemisphere.\368\ This 
strategy takes particular inspiration from the Los Angeles Declaration 
on Migration and Protection (``L.A. Declaration''), which was joined by 
world leaders during the Summit of the Americas on June 10, 2022, and 
has been endorsed by 22 countries.\369\
---------------------------------------------------------------------------

    \368\ See The White House, Joint Statement by the President of 
the United States Joe Biden and the President of Mexico 
Andr[eacute]s Manuel L[oacute]pez Obrador (Apr. 29, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/29/joint-statement-by-the-president-of-the-united-states-joe-biden-and-the-president-of-mexico-andres-manuel-lopez-obrador; see also Kathia 
Mart[iacute]nez, US, Panama, and Colombia aim to stop Darien Gap 
migration, AP News (Apr. 11, 2023), https://apnews.com/article/darien-gap-panama-colombia-us-migrants-cf0cd1e9de2119208c9af186e53e09b7.
    \369\ See Los Angeles Declaration on Migration and Protection, 
Endorsing Countries, https://losangelesdeclaration.com/endorsing-countries (last visited Aug. 2, 2024).
---------------------------------------------------------------------------

    Under the umbrella of this framework, the United States has been 
working closely with its foreign partners to manage the unprecedented 
levels of migration that countries throughout the region have recently 
been experiencing. This work includes efforts to expand access to and 
increase the number of lawful, safe, and orderly pathways, such as the 
Safe Mobility Initiative; \370\ conduct joint enforcement efforts, such 
as the Dari[eacute]n Campaign with Colombia and Panama and the mirrored 
patrols with the Government of Mexico along our shared border; and 
share information, technical assistance, and best practices. See 89 FR 
at 48759-60 & nn.300-02. These also include the commitment by the 
United States and Mexico to strengthen their joint humanitarian plan on 
migration. See id. at 48760 & n.310. The United States and endorsing 
countries continue to progress and expand upon our shared commitments 
made under this framework.
---------------------------------------------------------------------------

    \370\ See U.S. Dep't of State, Safe Mobility Initiative: Helping 
Those in Need and Reducing Irregular Migration in the Americas, 
https://www.state.gov/safe-mobility-initiative/ (last visited Sept. 
21, 2024).
---------------------------------------------------------------------------

    Given the particular challenges facing the United States and its 
regional partners at this moment, the Departments appropriately 
assessed that it was critical that the United States continue to lead 
the way in responding to ever-changing and increasing migratory flows, 
and that the IFR and the Proclamation--and the strong consequences they 
were intended to impose at the border--would send an important message 
to the region that the United States is prepared to put in place 
appropriate measures to prepare for and, if necessary, respond to 
ongoing migratory challenges.\371\ See 89 FR at 48761.
---------------------------------------------------------------------------

    \371\ See Muzaffar Chishti et al., At the Breaking Point: 
Rethinking the U.S. Immigration Court System, Migration Pol'y Inst., 
at 11 (2023), https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf (``In the case of 
noncitizens crossing or arriving at the U.S.-Mexico border without 
authorization to enter, years-long delays create incentives to file 
frivolous asylum claims that further perpetuate delays for those 
eligible for protection, undermining the integrity of the asylum 
system and border enforcement.''); Doris Meissner, Faye Hipsman, & 
T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting 
a Way Forward, Migration Pol'y Inst., at 9 (2018), https://www.migrationpolicy.org/sites/default/files/publications/MPI-AsylumSystemInCrisis-Final.pdf (``Incentives to misuse the asylum 
system may also be reemerging. For example, over the past five 
years, the number of employment authorization documents (EADs) 
approved for individuals with pending asylum cases that have passed 
the 180-day mark increased from 55,000 in FY 2012 to 270,000 in FY 
2016, and further to 278,000 in just the first six months of FY 
2017. This high and growing level of EAD grants may suggest that, as 
processing times have grown, so too have incentives to file claims 
as a means of obtaining work authorization and protection from 
deportation, without a sound underlying claim to humanitarian 
protection.'').
---------------------------------------------------------------------------

    In response to the comments that the Departments' invocation of the 
foreign affairs exception is overly broad and that because the IFR 
impacts asylum and issues at the southern border of the United States, 
it implicates only domestic policy and law and thus does not qualify 
for the foreign affairs exception, the Departments point out that the 
IFR stems from international cooperation and directly addresses 
international challenges. As one commenter noted, at least one court 
has determined that a rule imposing a limitation on asylum eligibility 
is not subject to the foreign affairs exception when that rule has only 
an indirect impact on foreign affairs. See Capital Area Immigrants' 
Rights Coalition v. Trump, 471 F. Supp. 3d 25, 56 (D.D.C. 2020). But 
recently Mexico and the United States have worked together on a joint 
humanitarian plan on migration intended ``to address the humanitarian 
situation caused by unprecedented migration flows at our shared border 
and in the region.'' \372\ In a joint statement following a meeting 
between President Biden and President L[oacute]pez-Obrador on April 28, 
2024, the presidents ``ordered their national security teams to work 
together to immediately implement concrete measures to significantly 
reduce irregular border crossings while protecting human rights.'' 
\373\ The IFR and this rule further this international mission by 
limiting heightened levels of migration. This contrasts with the 
``indirect international effects,'' including potential ``downstream 
effects in other countries or on international negotiations,'' that the 
court discussed in Capital Area Immigrants' Rights Coalition. Capital 
Area Immigrants' Rights Coalition, 471 F. Supp. 3d at 55. Given the 
IFR's direct and clear involvement in foreign affairs, the foreign 
affairs exception applies.
---------------------------------------------------------------------------

    \372\ The White House, Mexico and United States Strengthen Joint 
Humanitarian Plan on Migration (May 2, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
    \373\ The White House, Joint Statement by the President of the 
United States Joe Biden and the President of Mexico Andr[eacute]s 
Manuel L[oacute]pez Obrador (Apr. 29, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/29/joint-statement-by-the-president-of-the-united-states-joe-biden-and-the-president-of-mexico-andres-manuel-lopez-obrador.
---------------------------------------------------------------------------

    In addition to the IFR's clear and direct involvement in foreign 
affairs, the Departments believed that conducting a notice-and-comment 
process and providing a delayed effective date likely would have led to 
a surge to the southern border before the Departments could finalize 
the rule, as occurred in anticipation of the end of the Title 42 public 
health Order.\374\ Regional partner countries have repeatedly 
emphasized the ways in which U.S. policy announcements have a direct 
and immediate impact on migratory flows through their countries. See 88 
FR at 31444. For example, one foreign partner opined that the formation 
of caravans in the spring of 2022 were spurred by rumors of the United 
States Government terminating the Title 42 public health Order and then 
the officially announced plans to do so. Id. Such effects are precisely 
the kind of ``definitely undesirable international consequences'' that 
the Departments seek to avoid. The Departments appropriately concluded 
that the emergency measures taken in the IFR would help address this 
regional challenge, rather than exacerbate it as one commenter 
suggested, and that any decrease in migration that results would help 
relieve the strain not just on the U.S.-Mexico border, but also on

[[Page 81263]]

countries throughout the hemisphere.\375\ The actions the United States 
took in the IFR thus affected conditions beyond the southern border and 
demonstrated a commitment to addressing irregular migration in the 
region, even as foreign partners have been taking actions themselves 
that are aligned with a shared interest in reducing migration.\376\ 
Thus, regardless of whether the foreign affairs exception has been 
invoked for other rulemakings involving border issues, that exception 
is applicable here. See 5 U.S.C. 553(a)(1). The Departments note, 
however, that the Circumvention of Lawful Pathways rule did invoke the 
foreign affairs exception to the APA's delayed-effective-date 
requirement on similar grounds to the IFR. See 88 FR at 31444-45.
---------------------------------------------------------------------------

    \374\ See 89 FR at 48761-62. Note that the encounter projections 
included in the IFR excluded encounters of people who had registered 
with the CBP One app along with administrative encounters at POEs, 
but included non-CBP One enforcement encounters at POEs, which at 
the time averaged about 190 per day since May 2023, based on OHSS 
analysis of March 2024 OHSS Persist Dataset; see also CBP, CBP 
One\TM\ Appointments Increased to 1,450 Per Day (June 30, 2023), 
https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day; Decl. of Blas Nu[ntilde]ez-Neto ] 
9, E. Bay Sanctuary Covenant v. Biden, No. 4:18-cv-06810-JST (N.D. 
Cal. June 16, 2023) (Dkt. 176-2).
    \375\ See 88 FR at 11713 (noting that in the 60 days immediately 
following DHS's resumption of routine repatriation flights to 
Guatemala and Honduras in 2021, average daily encounters fell by 38 
percent for Guatemala and 42 percent for Honduras).
    \376\ See, e.g., The White House, Mexico and United States 
Strengthen Joint Humanitarian Plan on Migration (May 2, 2023), 
https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/02/mexico-and-united-states-strengthen-joint-humanitarian-plan-on-migration/.
---------------------------------------------------------------------------

b. Good Cause Exception
    Comment: Commenters stated that the good cause exception did not 
apply to the IFR because the Departments' claim that proceeding via 
NPRM would yield a surge in border encounters was misguided, not 
supported by evidence, and an insufficient reason to invoke the good 
cause exception. Similarly, commenters stated that the IFR acknowledged 
that border encounters were lower in 2024 than the year prior, belying 
the claim of a border emergency. Commenters expressed concern that 
there is no indication of a new emergency sufficient for the 
Departments to immediately change their rules without allowing the 
public an opportunity to engage with or be warned about the coming 
changes. Commenters further claimed that evidence shows that migration 
rates rise independently of U.S. efforts to enact consequences, that 
any change in policy leads to a short-term decrease in encounters and, 
thus, that the IFR should not have been excepted from the APA. 
Commenters noted that the increase in encounters in December 2023 was 
not tied to any policy change. Commenters also criticized the 
Departments' discounting of the lack of a surge after the Circumvention 
of Lawful Pathways NPRM, stating that although at that time the Title 
42 public health Order remained in effect, ``it is disingenuous to 
compare the current IFR with the lifting of Title 42, which, as the 
agencies report, led to increased border entries.'' Commenters 
expressed opposition to the Departments' invocation of the good cause 
exception, remarking that the assumption that ``not seeking safety in 
the United States protects the welfare of people who otherwise would 
undertake that dangerous journey is unsubstantiated and false.''
    Commenters compared the IFR to the Circumvention of Lawful Pathways 
NPRM, which according to the commenters did not invoke the good cause 
exception. Commenters wrote that the good cause exception should not 
have applied to the IFR because providing notice would have been both 
``practicable and in the public interest.'' Commenters stated that the 
Departments' good cause exception claim of an emergency is based on 
``long standing structural challenges,'' such as backlogged immigration 
case processing and limited resources.
    Response: The Departments' decision to invoke the good cause 
exceptions to the APA's notice-and-comment and delayed-effective-date 
procedures at 5 U.S.C. 553(b)(B) and (d)(3) was reasonable and 
appropriate. Notwithstanding that the Departments had ample basis to 
forgo advance notice and comment, the Departments nevertheless provided 
an opportunity for public comment and in this final rule are responding 
to those comments.
    An agency may forgo notice and comment when it is ``impracticable, 
unnecessary, or contrary to the public interest.'' Id. 553(b)(B). Here, 
the notice-and-comment procedures were impracticable and contrary to 
the public interest because the delays associated with such procedures 
would have unduly postponed implementation of a policy that was 
urgently needed to avert significant public harm. While courts have 
``narrowly construed'' this exception, it can ``excuse[ ] notice and 
comment in emergency situations, where delay could result in serious 
harm, or when the very announcement of a proposed rule itself could be 
expected to precipitate activity by affected parties that would harm 
the public welfare.'' Am. Pub. Gas Ass'n v. U.S. DOE, 72 F.4th 1324, 
1339-40 (D.C. Cir. 2023) (internal citations omitted). An advance 
announcement of the IFR would have seriously undermined a key goal of 
the policy in disincentivizing substantial levels of irregular 
migration, see, e.g., 89 FR at 48754, and instead would have 
incentivized noncitizens to irregularly enter the United States before 
the IFR took effect.
    First, the ``impracticable'' prong of the good cause exception 
``excuses notice and comment in emergency situations . . . or where 
delay could result in serious harm.'' \377\ Findings of 
impracticability are ``inevitably fact- or context-dependent,'' \378\ 
and when reviewing such findings, courts generally consider, among 
other factors, the harms that might have resulted while the agency 
completed standard rulemaking procedures \379\ and the agency's 
diligence in addressing the problem it seeks to address.\380\
---------------------------------------------------------------------------

    \377\ Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); see, 
e.g., id. (upholding a claim of good cause to address ``a possible 
imminent hazard to aircraft, persons, and property within the United 
States'' (quotation marks omitted)); Haw. Helicopter Operators Ass'n 
v. FAA, 51 F.3d 212, 214 (9th Cir. 1995) (upholding a claim of good 
cause to address 20 air tour accidents over a four-year period, 
including recent incidents indicating that voluntary measures were 
insufficient to address the threat to public safety).
    \378\ Mid-Tex Elec. Co-op, Inc. v. FERC, 822 F.2d 1123, 1132 
(D.C. Cir. 1987); see Petry v. Block, 737 F.2d 1193, 1203 (D.C. Cir. 
1984) (when evaluating agency ``good cause'' arguments, ``it is 
clear beyond cavil that we are duty bound to analyze the entire set 
of circumstances''). Courts have explained that notice-and-comment 
rulemaking may be impracticable, for instance, where air travel 
security agencies would be unable to address threats, Jifry, 370 
F.3d at 1179, if ``a safety investigation shows that a new safety 
rule must be put in place immediately,'' Util. Solid Waste 
Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) 
(ultimately finding that not to be the case and rejecting the 
agency's argument), or if a rule was of ``life-saving importance'' 
to mine workers in the event of a mine explosion, Council of S. 
Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981).
    \379\ See Util. Solid Waste Activities Grp., 236 F.3d at 754-55 
(explaining that ``a situation is `impracticable' when an agency 
finds that due and timely execution of its functions would be 
impeded by the notice otherwise required in Sec.  553, as when a 
safety investigation shows that a new safety rule must be put in 
place immediately'' (cleaned up)).
    \380\ See, e.g., Tri-Cty. Tel. Ass'n, Inc. v. FCC, 999 F.3d 714, 
720 (D.C. Cir. 2021) (``[T]his is not a case of unjustified agency 
delay. The Commission did act earlier, . . . [and t]he agency needed 
to act again . . . .'').
---------------------------------------------------------------------------

    The critical need to immediately implement more effective border 
management measures is described at length in the June 3 Proclamation, 
the IFR, and Section II.A of this preamble. Despite the strengthened 
consequences in place at the SWB and adjacent coastal borders, 
including the Circumvention of Lawful Pathways rule and other measures 
(which led to the highest numbers of returns and removals in more than 
a decade, 89 FR at 48713), when the IFR was published, the U.S. 
Government continued to contend with exceptionally high levels of 
irregular migration along the southern border, including record-high 
total USBP encounter levels on the SWB as recently as December 
2023.\381\ While encounter

[[Page 81264]]

levels in calendar year 2024 prior to issuance of the IFR had decreased 
from these record numbers, there was still a substantial and elevated 
level of migration. Historically high percentages of migrants were 
claiming fear. 89 FR at 48713.
---------------------------------------------------------------------------

    \381\ There were approximately 250,000 USBP encounters along the 
SWB in December 2023, higher than any previous month on record, see 
OHSS analysis of July 2024 Persist Dataset (Encounters FY 2000-2024 
tab).
---------------------------------------------------------------------------

    DHS was forced to place many of these individuals into the 
backlogged immigration court system, a process that can take several 
years to result in a decision or consequence.\382\ Even then, it can 
take a substantial period to effectuate the removal of these 
individuals.\383\ This difficulty in predictably delivering timely 
decisions and consequences further compounded incentives for migrants 
to make the dangerous journey to the SWB, regardless of any individual 
noncitizen's ultimate likelihood of success on an asylum or protection 
application. 89 FR at 48714. The emergency border circumstances were 
not, however, due solely to longstanding structural challenges such as 
case backlogs in immigration court and the lack of government 
resources, as one commenter suggested; rather, the heightened level of 
encounters at the southern border occurred despite recent increases in 
the number of immigration court judges, immigration court cases 
completed, individuals processed through expedited removal, and 
expanded opportunities to use lawful, safe, and orderly processes. Id. 
at 48712-13. The Departments reasonably determined that the heightened 
levels of migration and forced displacement that resulted in the 
President's determination to apply the suspension and limitation on 
entry and the Departments' determination to adopt the IFR would further 
strain resources, risk overcrowding in USBP stations and border POEs in 
ways that pose significant health and safety concerns, and create a 
situation in which large numbers of migrants--only a small proportion 
of whom are likely to be granted asylum or other protection--would be 
encouraged to put their lives in the hands of dangerous organizations 
to make the hazardous journey north based on a perceived lack of 
immediate consequences. See id. at 48763. The Departments acted 
immediately to safeguard their ability to enforce our Nation's 
immigration laws in a timely way and at the scale necessary with 
respect to those who seek to enter without complying with our laws. See 
id.
---------------------------------------------------------------------------

    \382\ EOIR decisions completed in July 2024 were, on average, 
initiated in February 2022, during the significant operational 
disruptions caused by the COVID-19 pandemic (with encounters several 
months earlier than that), but 60 percent of EOIR cases initiated in 
February 2022 were still pending as of July 2024, so the final mean 
processing time (once all such cases are complete) will be longer. 
OHSS analysis of EOIR data as of July 2024 (Mean EOIR Filed Dates 
tab); EOIR, EOIR Strategic Plan 2024, Current Operating Environment, 
https://www.justice.gov/eoir/strategic-plan/strategic-context/current-operating-enviroment (last visited Aug. 2, 2024) (``EOIR [ ] 
suffered operational setbacks during the COVID-19 pandemic years of 
FY 2020 through FY 2022, including declining case completions due to 
health closures and scheduling complications and delays in agency 
efforts to transition to electronic records and the efficiencies 
they represent. While the challenges of the pandemic were overcome 
by adaptive measures taken during those years, the pandemic's impact 
on the pending caseload is still being felt.''). While EOIR does not 
report statistics on pending median completion times for removal 
proceedings in general, it does report median completion times for 
certain types of cases, such as detained cases and cases involving 
UCs. See, e.g., EOIR, Median Unaccompanied Noncitizen Child (UAC) 
Case Completion and Case Pending Time (July 19, 2024), https://www.justice.gov/eoir/media/1344951/dl?inline (median completion time 
of 1,241 days); EOIR, Median Completion Times for Detained Cases 
(July 19, 2024), https://www.justice.gov/eoir/media/1344866/dl?inline (median completion time of 46 days in the third quarter of 
2024 for removal, deportation, exclusion, asylum-only, and 
withholding-only cases); EOIR, Percentage of DHS-Detained Cases 
Completed within Six Months (July 19, 2024), https://www.justice.gov/eoir/media/1344886/dl?inline (reporting seven 
percent of detained cases not completed within six months); see also 
89 FR at 48749-54 (discussing the limits in the Departments' ability 
to quickly repatriate noncitizens when encounters are elevated, 
which results in the release of many of these noncitizens into the 
United States); Section III.D.1 of this preamble (describing how the 
rule's thresholds target emergency border circumstances exceeding 
the Departments' capacity to effectively process, detain, and 
remove, as appropriate, the noncitizens encountered).
    \383\ Miriam Jordan, One Big Reason Migrants Are Coming in 
Droves: They Believe They Can Stay, N.Y. Times (Jan. 31, 2024), 
https://www.nytimes.com/2024/01/31/us/us-immigration-asylum-border.html (``Most asylum claims are ultimately rejected. But even 
when that happens, years down the road, applicants are highly 
unlikely to be [removed]. . . .''); OHSS analysis of July 2024 
Persist Dataset (Removal Orders tab); see also 88 FR at 31326, 
31381.
---------------------------------------------------------------------------

    Second, under the ``contrary to the public interest'' prong of the 
good cause exception, it has long been recognized that agencies may use 
the good cause exception, and need not take public comment in advance, 
when significant public harm would result from the notice-and-comment 
process.\384\ If, for example, advance notice of a coming price 
increase would immediately produce market dislocations and lead to 
serious shortages, advance notice need not be given.\385\ A number of 
cases follow this logic in the context of economic regulation.\386\
---------------------------------------------------------------------------

    \384\ See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. 
Cir. 2012) (noting that the ``contrary to the public interest'' 
prong of the ``good cause'' exception ``is appropriately invoked 
when the timing and disclosure requirements of the usual procedures 
would defeat the purpose of the proposal--if, for example, 
announcement of a proposed rule would enable the sort of financial 
manipulation the rule sought to prevent . . . [or] in order to 
prevent the amended rule from being evaded'' (cleaned up)); DeRieux 
v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct. App. 
1974) (``[W]e are satisfied that there was in fact `good cause' to 
find that advance notice of the freeze was `impracticable, 
unnecessary, or contrary to the public interest' within the meaning 
of Sec.  553(b)(B). . . . Had advance notice issued, it is apparent 
that there would have ensued a massive rush to raise prices and 
conduct `actual transactions'--or avoid them--before the freeze 
deadline.'').
    \385\ See, e.g., Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp. 
Emer. Ct. App. 1975) (``[W]e think good cause was present in this 
case based upon [the agency's] concern that the announcement of a 
price increase at a future date could have resulted in producers 
withholding crude oil from the market until such time as they could 
take advantage of the price increase.'' (quotation marks omitted)).
    \386\ See, e.g., Chamber of Com. of U.S. v. S.E.C., 443 F.3d 
890, 908 (D.C. Cir. 2006) (``The [`good cause'] exception excuses 
notice and comment in emergency situations, where delay could result 
in serious harm, or when the very announcement of a proposed rule 
itself could be expected to precipitate activity by affected parties 
that would harm the public welfare.'' (citations omitted)); Mobil 
Oil Corp. v. Dep't of Energy, 728 F.2d 1477, 1492 (Temp. Emer. Ct. 
App. 1983) (``On a number of occasions . . . , this court has held 
that, in special circumstances, good cause can exist when the very 
announcement of a proposed rule itself can be expected to 
precipitate activity by affected parties that would harm the public 
welfare.'').
---------------------------------------------------------------------------

    With respect to comments stating that migration rates can rise 
independently of policy changes, commenters are correct that there are 
increases in migration rates that do not appear to be a result of 
changes in U.S. policies, such as the increase in encounters in 
December 2023. But that does not diminish the impact of even short-term 
surges after announcements of policy changes, which the Departments 
have experienced time and again, as detailed in the IFR. See 89 FR at 
48764-66.
    The Departments reasonably assessed that announcing this rule in 
advance would have likely yielded a surge. As explained in the IFR, the 
Departments were responding to emergency border circumstances, and 
advance announcement of the response--a significant change in border 
policy that increased the Departments' ability to swiftly process and 
remove, as appropriate, more noncitizens who enter the United States 
irregularly--would have significantly incentivized migrants to engage 
in actions likely to compound those very challenges.\387\

[[Page 81265]]

These incentives are exacerbated by smugglers, who routinely emphasize 
the significance of recent or upcoming policy developments, among other 
tactics, and do so particularly when there is a change announced in 
U.S. policy.\388\ For the same reasons, ``the [need] for immediate 
implementation'' outweighed the ``principles'' underlying the 
requirement for a 30-day delay in the effective date, justifying the 
Departments' finding of good cause to forgo it.\389\ The stark drop in 
encounters following implementation of the Proclamation and IFR, as 
discussed in Section II.A.2 of this preamble, is strong evidence that 
announcements of such changes in policy can have significant effects on 
migration patterns; by making the IFR immediately effective, the 
Departments avoided triggering a surge in migration that might 
otherwise have occurred during a notice-and-comment period or pending a 
delayed effective date.
---------------------------------------------------------------------------

    \387\ See Decl. of Robert E. Perez ]] 4-15, Innovation Law Lab, 
No. 19-15716 (9th Cir. Mar. 3, 2020) (Dkt. 95-2) (noting that on 
February 28, 2020, the Ninth Circuit lifted a stay of a nationwide 
injunction of the Migrant Protection Protocols, a program 
implementing the Secretary's contiguous return authority under 
section 235(b)(2)(C) of the INA, 8 U.S.C. 1225(b)(2)(C), and almost 
immediately, hundreds of migrants began massing at POEs across the 
southern border and attempting to immediately enter the United 
States, creating a severe safety hazard that forced CBP to 
temporarily close POEs in whole or in part).
    \388\ See Nick Miroff & Carolyn Van Houten, The Border is 
Tougher to Cross Than Ever. But There's Still One Way into America, 
Wash. Post (Oct. 24, 2018), https://www.washingtonpost.com/world/national-security/theres-still-one-way-into-america/2018/10/24/d9b68842-aafb-11e8-8f4b-aee063e14538_story.html.
    \389\ Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) 
(cleaned up).
---------------------------------------------------------------------------

    The increase in SWB encounters preceding the end of the Title 42 
public health Order and the increase in border encounters that occurred 
in December 2023 were far-reaching across multiple sectors of the SWB 
and significantly greater than what DHS resources and operations are 
designed to handle. Increasing encounters raised detention capacity 
concerns anew, and, at that point, DHS faced an urgent situation, 
including a significant risk of overcrowding in its facilities.\390\ 
Given the nature of its facilities, increased numbers and custody 
duration increase the likelihood that USBP facilities will become 
quickly overcrowded.\391\ In response to the comment noting skepticism 
over the Departments' assumption that deterring irregular migration 
will protect migrants' welfare, the Departments disagree: crowding, 
particularly given how USBP facilities are necessarily designed, 
increases the potential risk of health and safety concerns for 
noncitizens and Government personnel.\392\ The Departments thus 
assessed that there would be a significant risk of such an urgent 
situation occurring if they undertook notice-and-comment procedures for 
the IFR or delayed its effective date.
---------------------------------------------------------------------------

    \390\ See Decl. of Matthew J. Hudak ]] 11, 17, Florida v. 
Mayorkas, Case No. 3:22-cv-9962 (N.D. Fla. May 12, 2023) (Dkt. 13-
1).
    \391\ Id. ]] 6, 14, 17.
    \392\ Id. ] 17.
---------------------------------------------------------------------------

    The Departments' determination in the IFR was also consistent with 
the United States' past practice. For example, and in response to the 
comment that the Departments did not invoke the good cause exception in 
promulgating the Circumvention of Lawful Pathways rule, the Departments 
provided notice and an opportunity to comment on that rule while the 
Title 42 public health Order remained in effect \393\ but invoked the 
good cause exception (as well as the foreign affairs exception) to 
bypass a delayed effective date that would have resulted in a gap 
between the end of the Title 42 public health Order and the 
implementation of the rule. See 88 FR at 31445-47. Contrary to the 
comment asserting that it was disingenuous for the Departments to 
compare the potential surge of migrants between the end of Title 42 and 
the effective date of the Circumvention of Lawful Pathways rule with 
the potential surge associated with the delayed implementation of this 
rule, the Departments merely refer to the Title 42 surge to illustrate 
that a surge would be likely given the significance of the border 
policy change made by the IFR, not that the surge would have been of 
precisely the same degree. See 89 FR at 48761-62.
---------------------------------------------------------------------------

    \393\ The Departments noted, however, that the Circumvention of 
Lawful Pathways rule was exempt from notice-and-comment requirements 
pursuant to the good cause exception at 5 U.S.C. 553(b)(B) for the 
same reasons that the rule was exempt from delayed effective date 
requirements under 5 U.S.C. 553(d). See 88 FR at 31445 n.377.
---------------------------------------------------------------------------

    Similarly, when implementing the parole process for Venezuelans, 
DHS implemented the process without prior public procedures, and 
witnessed a drastic reduction in irregular migration by 
Venezuelans.\394\ Had the parole process been announced before a 
lengthy notice-and-comment period, thousands of Venezuelan nationals 
would have likely attempted to cross the United States and Mexican 
borders before the ineligibility criteria went into effect and before 
the United States could return Venezuelan nationals to Mexico. See 89 
FR at 48766.
---------------------------------------------------------------------------

    \394\ See 88 FR at 31317 (``A week before the announcement of 
the Venezuela parole process on October 12, 2022, Venezuelan 
encounters between POEs at the SWB averaged over 1,100 a day from 
October 5-11. About two weeks after the announcement, Venezuelan 
encounters averaged under 200 per day between October 18 and 24.'').
---------------------------------------------------------------------------

    DHS similarly concluded in January 2017 that it was imperative to 
give immediate effect to a rule designating Cuban nationals arriving by 
air as eligible for expedited removal because ``[p]re-promulgation 
notice and comment would . . . endanger[ ] human life and hav[e] a 
potential destabilizing effect in the region.'' \395\ The ``publication 
of the rule as a proposed rule . . . would [have] signal[ed] a 
significant change in policy while permitting continuation of the 
exception for Cuban nationals, [and] could [have led] to a surge in 
migration of Cuban nationals seeking to travel to and enter the United 
States during the period between the publication of a proposed and a 
final rule.'' \396\ A surge of this kind ``would [have] threaten[ed] 
national security and public safety by diverting valuable Government 
resources from counterterrorism and homeland security 
responsibilities'' and ``could also have [had] a destabilizing effect 
on the region, thus weakening the security of the United States and 
threatening its international relations,'' and ``could [have] 
result[ed] in significant loss of human life.'' \397\
---------------------------------------------------------------------------

    \395\ Eliminating Exception to Expedited Removal Authority for 
Cuban Nationals Arriving by Air, 82 FR 4769, 4770 (Jan. 17, 2017).
    \396\ Id.
    \397\ Id.; accord U.S. Dep't of State, Visas: Documentation of 
Nonimmigrants Under the Immigration and Nationality Act, as Amended, 
81 FR 5906, 5907 (Feb. 4, 2016) (finding the good cause exception 
applicable because of short-run incentive concerns).
---------------------------------------------------------------------------

    Given the emergency border circumstances facing the Departments, 
the delays associated with requiring a notice-and-comment process for 
the IFR would have been contrary to the public interest because an 
advance announcement of the rule would have incentivized even more 
irregular migration by those seeking to enter the United States before 
the IFR took effect.
c. Length and Sufficiency of Comment Period
    Comment: Commenters remarked that the 30-day post-promulgation 
comment period was not long enough to allow for ``meaningful[ ] 
comment'' on the IFR, including from experts. Multiple commenters 
recommended that the Departments either rescind the IFR, reissue it 
with a longer comment period, or both, and suggested the new comment 
period be at least 60 days or 90 days. A few commenters expressed 
concern with the IFR's publication four days before the end of the 30-
day comment period for the DHS Mandatory Bars NPRM, stating that the 
Departments did not give the public an adequate opportunity to analyze 
or comment on them separately or in conjunction.

[[Page 81266]]

    Response: As explained earlier in this Section III.E of this 
preamble, the Departments did not provide notice and an opportunity to 
comment or provide for a delayed effective date because the foreign 
affairs and good cause exceptions to those procedures applied. See 5 
U.S.C. 553(a)(1), (b)(B). Thus, the IFR became effective on June 5, 
2024, after the Proclamation was issued and the IFR was placed in 
public inspection. See 89 FR at 48710. The Departments invited the 
public to provide post-promulgation comments on the ``rulemaking by 
submitting written data, views, comments, and arguments on all aspects 
of this IFR by'' July 8, 2024. Id. It bears noting that the APA does 
not impose any requirements governing the process for submitting public 
comments when an agency voluntarily chooses to receive them following 
the promulgation of a rule that is exempt from notice-and-comment 
procedures; much less does it establish any set number of days for 
which the Departments would have to leave such a comment period open.
    This post-promulgation comment period spanned 30 days from the date 
of publication (from June 7, 2024, through July 8, 2024) and 34 days 
from the date the IFR was filed for public inspection (the afternoon of 
June 4, 2024). See 89 FR at 48710; id. at 48772. The Departments 
believe this comment period was sufficient to allow for meaningful 
public input, as evidenced by the 1,067 public comments received, 
including numerous detailed comments from interested 
organizations.\398\
---------------------------------------------------------------------------

    \398\ Document Comments, Securing the Border, https://www.regulations.gov/document/USCIS-2024-0006-0002/comment.
---------------------------------------------------------------------------

    Even where notice and comment is required, the APA does not require 
that the comment period be any particular length. See 5 U.S.C. 553(b), 
(c). And although Executive Orders 12866 and 13563 generally recommend 
a comment period of at least 60 days, they do not impose any binding 
requirement that a 60-day period be utilized in every case. In fact, 
courts have found 30 days to be a reasonable comment period length, 
finding that such a period is generally ``sufficient for interested 
persons to meaningfully review a proposed rule and provide informed 
comment,'' even when ``substantial rule changes are proposed.'' Nat'l 
Lifeline Ass'n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (citing 
Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)); see also 
Connecticut Light & Power Co. v. Nuclear Regul. Comm'n, 673 F.2d 525, 
534 (D.C. Cir. 1982) (noting that a 30-day comment period was not 
unreasonable despite complexity of proposed rule). Comment periods 
shorter than 30 days, often in the face of exigent circumstances, have 
also been deemed adequate. See, e.g., Omnipoint Corp., 78 F.3d at 629-
30 (concluding 15 days for comments was sufficient); NW Airlines, Inc. 
v. Goldschmidt, 645 F.2d 1309, 1321 (8th Cir. 1981) (finding 7-day 
comment period sufficient).
    Regarding commenters' concerns about the comment period in light of 
the DHS Mandatory Bars NPRM, the Departments first emphasize that the 
two rules regard separate aspects of DHS screening procedures, as 
discussed above in Section III.D.2 of this preamble. Nevertheless, the 
Departments explained the relationship between the two rules in the IFR 
by noting that, ``[i]f DHS were to finalize that rule as drafted, [the 
IFR]'s `reasonable probability' standard would still apply when the 
noncitizen is subject to this rule's limitation on asylum 
eligibility.'' 89 FR at 48739 n.186; see id. at 48756. In addition, 
because the DHS Mandatory Bars NPRM was published prior to the IFR, 
commenters were able to use that NPRM to inform their comments on the 
IFR. Accordingly, the Departments disagree that commenters were 
provided an inadequate opportunity to comment on the interaction of 
these two rules.
    Here, the 30-day comment period allowed for significant, meaningful 
public participation. Commenters have provided numerous and detailed 
comments regarding the IFR, and the Departments appreciate their effort 
to provide thorough commentary for the Departments' consideration 
during the preparation of this final rule. The 30-day comment period 
also allowed the Departments to swiftly finalize a critical border 
measure needed to address the emergency border circumstances posed by 
the Departments' lack of resources for delivering timely consequences 
to the heightened number of migrants attempting to enter the southern 
border without a viable legal basis for doing so. See 89 FR at 48749-
54.
2. Impacts, Costs, and Benefits (E.O. 12866 and E.O. 13563)
    Comments: One commenter reasoned that the effects of removal on 
noncitizens should not be disregarded because the costs are not low. 
The commenter stated that the costs resulting from removal would 
``encourage refoulement for individuals attempting to reach safety.'' 
The commenter stated that correctly identifying meritorious claims of 
fear is an invaluable process that should not be categorized as costs 
in ``additional time and resources.'' The commenter further stated that 
the Departments cannot simply dismiss the task of identifying 
meritorious claims or characterize their failure to do as purported 
cost savings, as the commenter alleges is done in the IFR.
    Response: The commenter misrepresents the IFR's discussion of costs 
and impacts, see 89 FR at 48766-67, which acknowledged that a 
noncitizen who would have received asylum in the absence of the rule 
would incur costs from the denial of that benefit. The IFR also 
acknowledged that noncitizens may incur further costs upon removal. The 
Departments have described these potential costs qualitatively not as a 
means of dismissing the importance of such costs, but in order to 
assess the costs and benefits of the rule in accordance with certain 
executive orders addressing the regulatory process. See id.
    Furthermore, the Departments disagree with the commenter's 
suggestion that the rule does not result in cost savings. The rule does 
not cause a reduction in overall resources dedicated to immigration 
processing and enforcement. Rather, it prevents those resources from 
being spread so thin. As the IFR's analysis explains, given ongoing 
strains on limited Federal Government immigration processing and 
enforcement resources, any reduction in new asylum claims would 
necessarily increase the availability of those resources and allow for 
more timely adjudications of existing claims. The benefits of the rule 
include reductions in strains on limited Federal Government immigration 
processing and enforcement resources; preservation of the Departments' 
continued ability to safely, humanely, and effectively enforce and 
administer the nation's immigration laws; and a reduction in the role 
of exploitative TCOs and smugglers. Id. at 48767. Some of these 
benefits accrue to noncitizens whose ability to receive timely 
decisions on their claims might otherwise be hampered by the severe 
strain that further surges in irregular migration would impose on the 
Departments. Id.
3. Alternatives
a. Address Root Causes of Migration
    Comment: A few commenters specifically urged the United States 
Government to address ``root causes'' of migration. Many commenters 
blamed United States foreign policy generally for creating conditions 
in foreign countries that have caused irregular migration. For example, 
one commenter stated that the United States must

[[Page 81267]]

amend its foreign policies ``which contribute to poverty and injustice 
in the countries migrants are trying to escape.'' Another commenter 
called immigration ``payback'' for the United States's foreign 
policies. Some commenters specified foreign policies they would like to 
see changed, such as those regarding weapons sales, fossil fuels, the 
environment, humanitarian aid, and sanctions on foreign governments. 
Other commenters criticized the Government and corporations for 
contributing to destabilization in other countries leading to 
immigration. Commenters suggested that the Government should disrupt 
corporate greed causing destabilization in other countries.
    Response: As a preliminary matter, these comments are outside the 
scope of this rulemaking. Regardless, the Departments disagree with the 
suggestion that addressing the root causes of migration obviates the 
necessity of the rule. Rather, the United States' ongoing efforts, 
along with those of partner nations, to address the root causes of 
migration and abate adverse effects from unprecedented levels of global 
irregular migration will not immediately resolve the urgent border 
security and immigration systems' situations. Efforts to address the 
root causes of irregular migration will take significant time to create 
impact, and in the meantime the more targeted policies set forth in the 
IFR and this rule are necessary to alleviate the current acute stress 
on the border security and immigration systems.
    The Departments nonetheless agree with commenters that addressing 
root causes is a necessary element of regional migration management. 
For example, the U.S. Strategy for Addressing the Root Causes of 
Migration in Central America, directed by the President in Executive 
Order 14010, 86 FR 8267 (Feb. 5, 2021), focuses on a coordinated, 
place-based approach to improve the underlying causes that push Central 
Americans to migrate, and it takes into account, as appropriate, the 
views of bilateral, multilateral, and private sector partners, as well 
as civil society.\399\ The strategy includes addressing economic, 
governance, and security challenges through five pillars: (1) 
addressing economic insecurity and inequality; (2) combating corruption 
and strengthening democratic governance; (3) promoting human rights and 
labor rights; (4) countering and preventing violence; and (5) combating 
sexual and gender-based violence.\400\ In March 2024, the White House 
announced that the Administration is on track to meet its commitment in 
the root causes strategy to provide $4 billion to the region over four 
years.\401\
---------------------------------------------------------------------------

    \399\ Nat'l Sec. Council, U.S. Strategy for Addressing the Root 
Causes of Migration in Central America at 4 (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf.
    \400\ The White House, Fact Sheet: Update on the U.S. Strategy 
for Addressing the Root Causes of Migration in Central America (Mar. 
25, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/03/25/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-3/.
    \401\ Id.
---------------------------------------------------------------------------

    The United States has also worked closely with its regional 
partners to prioritize and implement a strategy that advances safe, 
orderly, legal, and humane migration, including taking measures to 
address the root causes of migration, expand access to lawful pathways, 
improve the U.S. asylum system, and address the pernicious role of 
smugglers. The IFR provided a detailed account of the United States' 
efforts throughout the region to implement such strategies. See 89 FR 
at 48759-62. For instance, the United States, along with 21 other 
countries in the Western Hemisphere, has endorsed the L.A. Declaration, 
which proposes a comprehensive approach to managing migration 
throughout the Western Hemisphere. See id. at 48759. Under the L.A. 
Declaration's framework, the United States has been working closely 
with foreign partners to manage the unprecedented levels of migration 
that countries throughout the region have been experiencing, including 
efforts to expand access to and increase lawful pathways; conduct joint 
enforcement efforts; and share information, technical assistance, and 
best practices. Id. at 48759-60.
    Additionally, the Government has developed and implemented a number 
of policy measures, including the Circumvention of Lawful Pathways rule 
and other measures, which are complemented by a range of actions taken 
by foreign partners in the region, such as campaigns by Colombia and 
Panama to counter smuggling networks in the Dari[eacute]n Gap. The 
Government believes that migration is a shared responsibility among all 
countries in the region, which is reflected in the intensive and 
concerted diplomatic outreach on migration issues that DHS and the 
Department of State have made with partners throughout the Western 
Hemisphere.
    Consistent with these efforts, this rule will further incentivize 
noncitizens to avoid irregular migration and instead avail themselves 
of other lawful, safe, and orderly means for seeking protection in the 
United States or elsewhere. The Departments agree with commenters that 
recent surges in irregular migration have been caused by multiple 
factors, including the growing understanding by smugglers and migrants 
that DHS's capacity to impose timely consequences at the border is 
limited by the lack of resources and tools available and by partner 
nations' operational constraints.
    Although this rule does not purport to--and a single rule cannot--
address all of the root causes and factors driving migration, the 
Departments assess that this rule has significantly increased their 
ability to deliver timely decisions and consequences at the southern 
border with currently available resources, combating perceptions and 
messaging to the contrary. Given the challenges facing the United 
States and its regional partners, this regulatory effort--and the 
strong consequences it imposes at the southern border--have sent and 
will continue to send an important message throughout the region that 
the United States has put in place appropriate measures to prepare for 
and, if necessary, respond to ongoing migratory challenges.
    In short, the Departments acknowledge that international migration 
trends are the product of exceedingly complex factors and are shaped 
by, among other things, family and community networks, labor markets, 
environmental and security-related push factors, and rapidly evolving 
criminal smuggling networks. See 88 FR at 31327-28 & n.59. The United 
States Government is working to address these root causes of migration, 
including by cooperating closely with partner countries, and to abate 
adverse effects from unprecedented levels of irregular migration.
b. Prioritize Funding and Other Resources
    Comment: Many commenters urged the United States Government to 
prioritize funding, other resources, or alternative policies to make 
border processing and asylum adjudications more effective and 
efficient. Commenters suggested various priorities for funding, 
including hiring more personnel and staff, such as immigration 
officers, IJs, and court personnel; allocating more funding to already 
existing personnel and staff; allocating more funding and other 
resources to local governments and organizations that assist 
immigrants; increasing access to legal representation and mental health 
services; and devoting more resources to asylum processing and 
adjudications at POEs and the interior.

[[Page 81268]]

Other commenters suggested more generally that the Government devote 
more resources to recent arrivals and the asylum system. A few 
commenters specified that the Government should provide additional 
funding for the Shelter and Services Program and the Case Management 
Pilot Program. One commenter suggested that the Government create a 
system to require asylum seekers to have their applications vetted in 
their home countries as a way to reduce costs and migration. Another 
commenter suggested sending noncitizen arrivals with family members in 
the United States to their families. One commenter stated that the 
Government should expand capacity at the border, while another 
commenter questioned DHS's ability to increase capacity at POEs.
    Response: The Departments acknowledge commenters' suggestions for 
increasing resources, both financial and otherwise, to account for the 
increased arrivals at the southern border, but those suggestions are 
outside the scope of this rulemaking, and they would require 
congressional action. As discussed in the IFR, the circumstances that 
the Departments faced in June 2024 existed despite the Departments' 
efforts to address substantial levels of migration and were a direct 
result of Congress's failure to update outdated immigration laws and 
provide needed funding and resources for the efficient operation of the 
border security and immigration systems. See 89 FR at 48712-15. The 
Administration has repeatedly requested additional resources from 
Congress, only some of which have been provided. See id. at 48728. 
USCIS also implemented a new fee schedule, effective April 1, 2024, 
that adjusted the fees to fully recover costs and maintain adequate 
service.\402\ While the new fee rule does provide for increased funding 
for the Refugee, Asylum, and International Operations Directorate, 
keeping pace with USCIS' protection screening and affirmative asylum 
workloads requires additional funding, as reflected in the President's 
FY 2025 Budget. 89 FR at 48729.
---------------------------------------------------------------------------

    \402\ See U.S. Citizenship and Immigration Services Fee Schedule 
and Changes to Certain Other Immigration Benefit Request 
Requirements, 89 FR 6194, 6194 (Jan. 31, 2024); U.S. Citizenship and 
Immigration Services Fee Schedule and Changes to Certain Other 
Immigration Benefit Request Requirements; Correction, 89 FR 20101 
(Mar. 21, 2024) (making corrections).
---------------------------------------------------------------------------

    Additional financial support would require additional congressional 
actions, including significant additional appropriations, which are 
outside the scope of this rulemaking. The Departments agree with the 
commenters that additional resources would provide substantial benefits 
for managing the border and immigration systems but decline to wait to 
act pending receipt of additional funding from Congress. DHS notes that 
despite this lack of additional funding it has taken steps to increase 
processing at SWB POEs, including through use of the CBP One app.\403\
---------------------------------------------------------------------------

    \403\ See Memorandum for William A. Ferrara, Exec. Ass't Comm'r, 
Off. of Field Operations, from Troy A. Miller, Acting Comm'r, CBP, 
Re: Guidance for Management and Processing of Undocumented 
Noncitizens at Southwest Border Land Ports of Entry (Nov. 1, 2021), 
https://www.cbp.gov/sites/default/files/assets/documents/2021-Nov/CBP-mgmt-processing-non-citizens-swb-lpoes-signed-Memo-11.1.2021-508.pdf.
---------------------------------------------------------------------------

    Additionally, the Departments note that they are leading ongoing 
Federal Government efforts to support NGOs, local and state 
governments, and other migrant support organizations as they work to 
respond to the unprecedented migration impacting communities across the 
United States. As noted in the Circumvention of Lawful Pathways rule, 
FEMA spent $260 million in FYs 2021 and 2022 on grants to non-
governmental and state and local entities through the EFSP-H to assist 
migrants arriving at the SWB with shelter and transportation. See 88 FR 
at 31327 (citing 88 FR at 11704-05). In December 2022, $75 million was 
awarded through the program.\404\ In addition, the Bipartisan Year-End 
Omnibus, which was enacted on December 29, 2022, directed CBP to 
transfer $800 million in funding to FEMA to support sheltering and 
related activities for noncitizens encountered by DHS. The Omnibus 
authorized FEMA to utilize this funding to establish a new Shelter and 
Services Program and to use a portion of the funding for the existing 
EFSP-H, until the Shelter and Services Program is established.\405\ For 
FY 2023, there were $363.8 million in available funds to enable non-
federal entities to provide humanitarian services to noncitizen 
migrants following their release from DHS.\406\ In FY 2024, that figure 
increased to nearly $650 million.\407\
---------------------------------------------------------------------------

    \404\ See FEMA, Release No. HQ-22-232, Emergency Food and 
Shelter Program National Board Allocates $75 Million for 
Humanitarian Assistance (Dec. 23, 2022), https://www.fema.gov/press-release/20230103/emergency-food-and-shelter-program-national-board-allocates-75-million.
    \405\ Public Law 117-328, Division F, Title II, Security, 
Enforcement, and Investigations, U.S. Customs and Border Protection, 
Operations and Support, 131 Stat. 4459, 4730 (2022).
    \406\ FEMA, Shelter and Services Program (June 14, 2024), 
https://www.fema.gov/grants/shelter-services-program.
    \407\ Id.
---------------------------------------------------------------------------

    The Departments do not agree with commenter's suggestions that 
alternative policies, including vetting migrants in their home 
countries and sending those who arrive the United States who have 
family members in the United States to those family members, should be 
pursued in place of this rule. In addition to being far outside the 
scope of the rule, such policies would lack the demonstrably effective 
incentive structure of this rule. The Departments nonetheless agree 
that the United States must consistently engage with partners 
throughout the Western Hemisphere to address the hardships that cause 
people to leave their homes and come to our southern border. During the 
emergency border circumstances underlying the rule, the Departments' 
limited resources must be focused on processing those who are most 
likely to be persecuted or tortured if removed and overall border 
security and immigration systems efficiencies. Swift removal of 
noncitizens without meritorious claims is critical to deterring 
noncitizens from seeking entry under the belief that they will be 
released and able to remain in the United States for a significant 
period.
    Comment: Some commenters stated that the Government ``should focus 
on educating the public about the complexities of immigration'' and 
``provide information to the American people'' regarding contributions 
of immigrants to society.
    Response: The Departments maintain publicly accessible information 
regarding the border security and immigration systems and routinely 
publicize law enforcement action and efforts against human trafficking, 
smuggling, and TCOs that profit from irregular migration.\408\ The 
Departments will continue to make such information publicly available 
through routine publication. To the extent commenters suggest that the 
Departments should inform the American public about the contributions 
migrants have made to the United States, the Departments respectfully 
note that such action is outside the scope of this rulemaking as it is 
unrelated to and would have no immediate effect on encounters at the 
southern border.
---------------------------------------------------------------------------

    \408\ See DHS, Securing the Border (last updated Aug. 6, 2024), 
https://www.dhs.gov/immigrationlaws; DHS, Border Security (last 
updated Nov. 7, 2023), https://www.dhs.gov/topics/border-security.
---------------------------------------------------------------------------

c. Further Expand Refugee Processing or Other Lawful Pathways
    Comment: Several commenters suggested increasing access to asylum 
and humanitarian protections. Commenters expressed concern that the 
United States' annual rates of refugee admissions have not kept pace 
with

[[Page 81269]]

worldwide demand for refugee protections, driving migrants to seek 
alternative, and oftentimes irregular, migration routes. While many 
commenters focused on noncitizens arriving at the border, at least one 
commenter suggested expanding protections for ``those who have long 
called the United States home.'' Many commenters stated that the 
Government ``should be creating accessible pathways to citizenship.'' 
Many commenters emphasized the need for expanded lawful pathways and 
speeding up processing times. One commenter requested that the 
Government ``invest in expanding pathways to lawful status.'' Several 
commenters implored the Government to focus ``on a solutions 
strategy.''
    Response: The United States has made and will continue to make 
extensive efforts to expand refugee processing and lawful pathways 
generally.\409\ As explained in detail in the IFR, in recent years, the 
Government has overseen the largest expansion of lawful, safe, and 
orderly pathways and processes for noncitizens to come to the United 
States in decades. 89 FR at 48760. Such steps include promulgating the 
Circumvention of Lawful Pathways rule, refocusing a significant portion 
of DHS's southern border workforce to prioritize migration management 
above other border security missions, implementing the CHNV parole 
processes, implementing the Safe Mobility Initiative in several 
countries, expanding country-specific family reunification parole 
processes, expanding opportunities to enter the United States for 
seasonal employment, establishing a mechanism for over 1,400 migrants 
per day to schedule a time and place to arrive at POEs through the CBP 
One app, increasing proposed refugee admissions from the Western 
Hemisphere from 5,000 in FY 2021 to up to 50,000 in FY 2024, completing 
approximately 89 percent more immigration court cases in FY 2023 
compared to FY 2019, and increasing the IJ corps by 66 percent from FY 
2019 to FY 2023. 89 FR at 48712-13.
---------------------------------------------------------------------------

    \409\ See DHS, Fact Sheet: DHS Continues to Strengthen Border 
Security, Reduce Irregular Migration, and Mobilize International 
Partnerships (June 4, 2024), https://www.dhs.gov/news/2024/06/04/fact-sheet-dhs-continues-strengthen-border-security-reduce-irregular-migration-and (citing continued efforts to expand lawful 
pathways and processes, including establishing country-specific 
parole processes for certain nationals, working with interagency 
partners and the private sector to increase access to H-2 
nonimmigration visa programs, expanding capacity at POEs to increase 
CBP One app processing capabilities, and implementing new family 
reunification parole processes among other efforts).
---------------------------------------------------------------------------

    Despite these and other efforts to expand lawful pathways and 
provide border security, and while DHS is processing noncitizens in 
record numbers and with record efficiency, the border security and 
immigration systems have not been able to keep pace with the number of 
noncitizens arriving at the southern border. Simply put, the 
Departments do not have adequate resources and tools to deliver timely 
decisions and consequences to individuals who cross irregularly and 
cannot establish a legal basis to remain in the United States, or to 
provide timely protection to those ultimately found eligible for 
protection, when noncitizens are arriving at such elevated volumes.
    Further, existing levels of migration make clear that the efforts 
described above, on their own, are insufficient to change the 
incentives of migrants, reduce the risks associated with current levels 
of irregular migration and the current surges of migrants to the 
border, and protect migrants from human smugglers that profit from 
their vulnerability. The Departments note that, while they continue to 
explore the possibility of providing additional lawful pathways, this 
rule does not create, expand, or otherwise constitute the basis for any 
lawful pathway. The Departments further note that requests that the 
United States create a path to citizenship is outside the scope of this 
rulemaking.
d. Expand Asylum Merits Process
    Comment: One commenter stated that instead of finalizing the IFR, 
the Departments should consider expanding the use of the AMI process 
outlined in the Asylum Processing IFR. The commenter stated that the 
rule has the same stated purpose of increasing efficiency and fairness 
of asylum adjudications for those in expedited removal, but that DHS 
had reduced its use of the AMI process in the last quarter of 2022 and 
has not explained why finalizing the IFR is preferable.
    Response: The Departments do not view the present rulemaking and 
the Asylum Processing IFR as mutually exclusive. Rather, the 
Departments view these rulemakings as complementary efforts. The AMI 
process promulgated in the Asylum Processing IFR is predicated on a 
noncitizen receiving a positive credible fear determination and seeks 
to make the process following a positive credible fear determination 
more efficient and streamlined, while maintaining fairness; meanwhile, 
the present rulemaking establishes a limitation on asylum eligibility 
and addresses the credible fear process itself. While both rulemakings 
seek to increase efficiency and maintain fairness, they do so by 
focusing on separate parts of the process--one primarily prior to and 
during a credible fear determination (the present rulemaking) and one 
following service of a positive credible fear determination (the Asylum 
Processing IFR). Additionally, the Asylum Processing IFR was written 
with the express intent of being implemented in a discretionary manner. 
As the Departments explained, the discretion of USCIS to place an 
individual with a positive credible fear determination into the AMI 
process under the rule or to issue an NTA for removal proceedings under 
section 240 of the INA was a necessary part of the rule in order for it 
to function, as the rule would have to be implemented in a reality in 
which USCIS did not have all of the resources necessary to place every 
case with a positive credible fear determination into the AMI process. 
See 87 FR at 18185. Accordingly, the Asylum Processing IFR provided 
USCIS complete discretion to place a case with a positive credible fear 
determination into the AMI process or to issue an NTA. 8 CFR 208.30(f).
    As explained in the preamble to the IFR, there are simply not 
enough AOs available to conduct fear screenings to keep pace with 
current sustained high encounter rates. See 89 FR at 48714. USCIS has a 
finite number of AOs to conduct all of its casework, including fear 
screenings, and does not plan on placing cases into the AMI process in 
circumstances in which the noncitizen did not establish a significant 
possibility that they would ultimately be able to establish by a 
preponderance of the evidence that the limitation on asylum eligibility 
does not apply or that they qualify for the exception; such an approach 
would not be a prudent use of resources given current operational 
realities. See 89 FR at 48756. The Departments nonetheless formulated 
the present rulemaking in a manner that preserves the ability of USCIS 
to exercise its discretion to place cases with positive credible fear 
determinations in the AMI process should USCIS have the resources 
available to do so in the future. See id.; see also 8 CFR 
208.35(b)(2)(ii). The Departments will continue to implement the Asylum 
Processing IFR in a manner consistent with the way the rule was 
envisioned to function, enrolling new cases in the process at the 
discretion of USCIS, in accordance with available resources.

[[Page 81270]]

e. Other Congressional Action
    Comment: Many commenters stated that the Administration should work 
with Congress on comprehensive legislative reforms. Commenters 
emphasized the need for meaningful legislative reform of the U.S. 
immigration system. Several commenters demanded that Congress address 
``the issue of immigration.'' Commenters pointed to a variety of 
reforms that they believed Congress should implement. However, one 
commenter disagreed with any suggestion that the border crisis was the 
result of any failure of Congress and felt it was the Administration's 
consistent ``abdication'' of border security and immigration 
enforcement that has resulted in the sustained, high rate of encounters 
since 2021.
    Response: These are suggestions for Congress and are outside the 
scope of this rulemaking. Nevertheless, the Departments acknowledge the 
commenters' expressed frustration with Congress's failure to update 
outdated immigration laws and provide needed funding and resources for 
the efficient operation of the border security and immigration systems. 
The Departments observe that this failure, combined with unprecedented 
levels of irregular migration along the southern border, makes up the 
causal background of the June 3 Proclamation and this rule, and they 
therefore disagree with one commenter's suggestion that the current 
border circumstances can be ascribed to the Administration's alleged 
``abdication'' of border security, and in no part to any congressional 
inaction. As explained in the June 3 Proclamation and the IFR, in the 
absence of congressional action to provide appropriate resources to DHS 
and EOIR and to reform the outdated statutory framework, the rule 
implements new policies to substantially improve the Departments' 
ability within that framework to deliver timely decisions and 
consequences to noncitizens who lack a lawful basis to remain. See 89 
FR at 48715. Although the Departments are adopting these measures to 
respond to the emergency situation at the southern border, they are not 
a substitute for congressional action, which remains the only long-term 
solution to the challenges the Departments have confronted on the 
border.
f. Additional Suggested Measures or Revisions
    Comment: One commenter suggested that the Departments ``engage in 
meaningful dialogue with legal experts and humanitarian groups to 
develop compassionate and effective approaches to migration.''
    Response: The Departments appreciate the commenter's suggestion and 
welcome the views of legal experts and humanitarian groups. Indeed, the 
Departments have sought comment on their rules relating to border 
management--such as the Asylum Processing IFR, Circumvention of Lawful 
Pathways rule, DHS Mandatory Bars NPRM, and the IFR here--and have 
either considered and responded to those comments, or, in the case of 
the DHS Mandatory Bars NPRM, are in the process of doing so. 
Additionally, such experts and organizations are able to petition the 
Departments for rulemaking, through which process they may present 
their proposals for consideration by the Departments. The Departments 
appreciate the thoughtful comments and feedback they have received from 
the public, including legal experts and humanitarian groups, and hope 
that the public's interest in aiding the Departments in their efforts 
to manage the border continues. Further, since the June 3 Proclamation 
and the IFR came into force, DHS has continually engaged advocacy, non-
governmental, and international organization partners to seek their 
feedback and perspectives.
    Comment: One commenter made several suggestions for additional, 
stricter measures instead of or in addition to this rule. Such 
suggested measures included strictly limiting parole into the United 
States, reinstating MPP and requiring noncitizens to wait in Mexico 
pending removal proceedings, rescinding enforcement priorities and 
enforcing immigration law in the interior of the United States, 
expanding expedited removal, terminating policies the commenter viewed 
as hindering immigration enforcement, requiring AOs to apply all 
mandatory bars to asylum and statutory withholding of removal in 
credible fear screenings, raising the standard for withholding of 
removal and deferral of removal to the ``reasonable probability'' 
standard for all credible fear proceedings, and terminating USCIS's 
policy of accepting requests for reconsideration after an IJ has 
concurred with an AO's negative credible fear determination. The 
commenter, addressing the instant rule, requested that the Departments 
eliminate ``overbroad and easy to exploit loopholes,'' specifically 
stating that the Departments should ``strike'' the exception for those 
who establish exceptionally compelling circumstances. One commenter 
stated that the rule should also apply to the northern border.
    Response: The Departments acknowledge the commenters' varying 
viewpoints and concerns but believe that even if some of the 
alternatives proposed by the commenters are suitable to pursue, they 
would not obviate the need for this rule. Proposals to broadly limit 
lawful pathways to enter the United States, such as parole processes, 
are outside the scope of this rulemaking, as are other comments 
advocating for immigration policy changes or reforms unrelated to the 
IFR.
    The Departments nonetheless note that this rule does not provide 
for, prohibit, or otherwise set any policy regarding DHS's 
discretionary authority to make parole determinations. Even so, in the 
Departments' experience, the various parole processes work in tandem 
with other lawful pathways in a complementary manner to address surges 
in migration. Examples of the success of DHS's discretionary parole 
processes include the CHNV parole processes and family reunification 
parole processes resulting in use of lawful pathways for entry into the 
United States. Importantly, the parole processes themselves are lawful 
pathways for qualifying individuals seeking to come to the United 
States, and this rule does not discourage their use. The parole 
processes are lawful, safe, and orderly pathways that the Departments 
wish to encourage in light of the urgent circumstances.
    The Departments disagree with commenters' suggestion to reinstate 
MPP for the reasons stated in the IFR and the Circumvention of Lawful 
Pathways rule. See 89 FR at 48752 n.271; 88 FR at 31370.
    Regarding commenters' request for expansion of expedited removal, 
the Departments observe that, among the series of steps the Government 
has taken to strengthen consequences for irregular entry at the border, 
DHS has processed record numbers of individuals through expedited 
removal. For example, in the months between May 12, 2023, and June 4, 
2024, CBP processed more than 359,000 noncitizens encountered at and 
between POEs along the SWB for expedited removal \410\--almost twice as 
many as any prior full FY.\411\ Indeed, under the IFR, from June 5 
through August 31, 2024:
---------------------------------------------------------------------------

    \410\ OHSS analysis of July 2024 Persist Dataset (Imm Post 
Pandemic ERCF tab).
    \411\ OHSS analysis of June 2024 Enforcement Lifecycle and July 
2024 OHSS Persist Dataset. Prior to FY 2024, the single-year FY 
record for Southwest Border cases processed for expedited removal 
was 202,000 in FY 2013 (Historic CFIs tab).

---------------------------------------------------------------------------

[[Page 81271]]

    <bullet> DHS removed or returned more than 119,000 individuals 
encountered at the SWB \412\ to more than 140 countries, including by 
operating more than 400 international repatriation flights; \413\
---------------------------------------------------------------------------

    \412\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (IFR details tab).
    \413\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (Flights and Removals tab).
---------------------------------------------------------------------------

    <bullet> DHS has doubled the percentage of noncitizens encountered 
at the SWB who are removed or returned directly from CBP custody 
compared to the immediate post-pandemic period (32 percent compared to 
16 percent); \414\
---------------------------------------------------------------------------

    \414\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    <bullet> DHS has more than tripled the percentage of noncitizens 
encountered by USBP at the SWB who are processed through expedited 
removal (up from 18 percent to 59 percent; expedited removal processing 
was already at record levels, as noted above); \415\ and
---------------------------------------------------------------------------

    \415\ Id.
---------------------------------------------------------------------------

    <bullet> DHS has decreased the percentage of noncitizens 
encountered at the SWB who are released by USBP pending their section 
240 removal proceedings by more than half (from 64 percent to 31 
percent).\416\
---------------------------------------------------------------------------

    \416\ Id.
---------------------------------------------------------------------------

    However, as explained at length in the IFR, DHS's ability to apply 
expedited removal is subject to resource constraints. See, e.g., 89 FR 
at 48752. At high levels of encounters, DHS simply lacks sufficient 
resources, such as AOs to conduct fear screenings and temporary 
processing facilities, to refer noncitizens for expedited removal 
processing. The mismatch in resources and encounters has created stress 
on the border security and immigration systems, forcing DHS to rely on 
processing pathways outside of expedited removal.
    With respect to the suggestion that mandatory bars be considered at 
the screening stage under a reasonable possibility standard, DHS is 
considering that issue in a separate rulemaking. See Mandatory Bars 
NPRM.
    The Departments decline to apply the ``reasonable probability'' 
standard to screen all statutory withholding of removal and CAT 
protection claims during all credible fear interviews at this time. 
Although the Departments acknowledge the commenters' concerns, the 
Departments emphasize that the primary focus of this rule is to 
substantially improve the Departments' ability, during periods of high 
encounters, to deliver timely decisions and consequences to noncitizens 
who lack a lawful basis to remain. Application of a the ``reasonable 
probability'' standard under emergency border circumstances as defined 
in the rule satisfies these goals.
    The suggestion to generally disallow USCIS from accepting requests 
for reconsideration of negative credible fear determinations exceeds 
the scope of this rulemaking, which regards the procedures applied 
during emergency border circumstances. The Departments note that during 
such circumstances, if it was determined at the credible fear interview 
that there is not a significant possibility a noncitizen could 
ultimately demonstrate by a preponderance of the evidence that they are 
not subject to the IFR's limitation on asylum eligibility or are 
eligible for the exception to the limitation, the noncitizen would not 
be permitted to submit requests for reconsideration with USCIS. See 8 
CFR 208.35(b)(2)(v)(B). In such circumstances, USCIS may, in its sole 
discretion, reconsider a negative determination. See id.; see also 89 
FR at 48756.
    The Departments disagree with the concern one commenter raised 
about what it characterized as ``loopholes.'' The exceptions to the 
limitation on eligibility for asylum are necessary to prevent undue 
hardship. The Departments have limited the means of avoiding the 
limitation on asylum eligibility to those identified in the June 3 
Proclamation and to exceptionally compelling circumstances in an effort 
to maximize the rule's applicability.
    With respect to a commenter's suggestion that the rule apply to the 
northern border, the Departments do not currently assess that 
application of the rule is necessary at the U.S.-Canada land border. 
Instead, the United States is implementing other measures to address 
irregular migration at that border, such as the Additional Protocol of 
2022 to the Safe Third Country Agreement between the United States and 
Canada, which expands the Agreement to apply to noncitizens who claim 
asylum or other protection within 14 days of crossing the U.S.-Canada 
land border between POEs, including certain mutually designated bodies 
of water. See Implementation of the 2022 Additional Protocol to the 
2002 U.S.-Canada Agreement for Cooperation in the Examination of 
Refugee Status Claims from Nationals of Third Countries, 88 FR 18227 
(Mar. 28, 2023). Under the Safe Third Country Agreement, with limited 
exceptions, noncitizens who cross from Canada to the United States 
cannot pursue an asylum or other protection claim in the United States 
and are instead returned to Canada to pursue their claim.
    Comment: A commenter suggested exempting persons who manifest a 
credible fear from penalties arising from expedited removal, including 
restrictions on subsequent admission to the United States, and 
conditioning the implementation of restrictions on eligibility for 
protection at the border ``on the actual availability of an alternative 
pathway[ ].''
    Response: The Departments acknowledge the commenters' suggestions 
but do not believe the alternatives proposed by the commenters are 
suitable to address operational concerns or meet the Departments' 
policy objectives.
    With regard to comments recommending that all noncitizens who 
manifest a fear be exempted from facing ``penalties'' arising from 
expedited removal, including restrictions on future admission to the 
United States, the Departments note that such a change would require a 
change to the INA, and thus is not within the Department's authority. 
See INA 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A) (providing that 
noncitizens removed pursuant to an order of expedited removal are 
inadmissible for a period of five or ten years following the date of 
such removal).
    With regard to the commenter's suggestion to condition the 
limitation on asylum eligibility on whether each individual had a 
lawful, safe, and orderly pathway available to them, the Departments 
note that the current framework already effectively does so. Any 
noncitizen without documents sufficient for lawful admission to the 
United States may pre-schedule a time and place to present at a POE 
through the CBP One app.\417\ Those who cannot wait for such an 
appointment may present at a POE and seek an exception to the 
Proclamation's suspension and limitation on entry or establish 
exceptionally compelling circumstances before an AO or IJ, both of 
which except them from the limitation on asylum eligibility. See 8 CFR 
208.35(a), 1208.35(a). To the extent commenters think these mechanisms 
are insufficient, the Departments have considered those arguments but 
believe that the rule strikes an appropriate balance between managing 
emergency border circumstances and protecting noncitizens' access to 
asylum, as discussed in Section III.C.1.b of this preamble.
---------------------------------------------------------------------------

    \417\ See CBP, CBP One<SUP>TM</SUP> Mobile Application (last 
modified Sept. 23, 2024), https://www.cbp.gov/about/mobile-apps-directory/cbpone.

---------------------------------------------------------------------------

[[Page 81272]]

F. Out of Scope

    Comment: In addition to the comments discussed above, commenters 
also discussed a range of topics that are outside the scope of this 
rule. For example, some commenters shared a general concern relating to 
overpopulation; a recommendation that the United States accept a 
certain number of noncitizens each year to compensate for labor 
shortages; a suggestion that the Government provide legal counsel at no 
expense to noncitizens or otherwise fund court-appointed counsel; a 
suggestion to issue ``general rules or guidelines in lieu of case by 
case assessments that would allow asylum officers to quickly approve 
certain cases''; a suggested amendment to the DHS Mandatory Bars NPRM 
to require AOs to apply all mandatory bars to asylum and statutory 
withholding of removal at the credible fear stage; a recommendation to 
preclude USCIS from considering requests for reconsideration of 
negative credible fear or reasonable fear determinations that have been 
reviewed by an IJ; concern with and strong opposition to the United 
States' military support for Israel; a request for open borders; a 
request for the Government to focus its efforts on providing asylum 
seekers access to mental health services; requests related to custody 
and detention of noncitizens and asylum seekers, such as investing in 
``non-custodial processing centers''; concerns about family separation 
and reunification policies; a recommendation to provide ``relief for 
undocumented caregivers by modernizing existing rules''; suggestions 
relating to work authorization for migrants and asylum seekers; 
sentiments that the Government should provide funding to support 
migrant communities with public services and respite; a recommendation 
that the Government grow ``federal support for case management 
support''; claims that the President does not have authority under 
sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), 
for the policies and objectives of the Proclamation; a claim that the 
President's use of his authority under section 212(f) of the INA, 8 
U.S.C. 1182(f), to issue the Proclamation is a departure from how other 
presidents have used the authority in the past, relying on statements 
from the Ninth Circuit's decision in Hawaii v. Trump, 878 F.3d 662, 689 
(9th Cir. 2017), rev'd and remanded, 585 U.S. 667 (2018); challenges to 
DHS's parole authority and use of parole; and a recommendation to give 
second chances to noncitizens involved in unlawful activities and to 
shut down operations such as the Western Hemisphere Institute for 
Security Cooperation because they further perpetuate drug-related 
violence.
    Response: These comments address matters beyond the scope of the 
rule and do not require further response. To the extent that 
commenters' concerns raised in relation to actions taken under sections 
212(f) and 215(a) of the INA, 8 U.S.C. 1182(f), 1185(a), apply also to 
the legality of actions taken by the Departments, and not only to the 
President's June 3 Proclamation or DHS's implementation of it, those 
concerns are addressed in Section III.A.1 of this preamble.

IV. Requests for Comments

A. Aligning the Geographic Reach of the Circumvention of Lawful 
Pathways Rule With That of the Proclamation and This Rule

    The Departments request comment on whether to expand the geographic 
reach of the Circumvention of Lawful Pathways rebuttable presumption to 
include those who enter at southern coastal borders, irrespective of 
whether they traveled through a third country. See 8 CFR 208.33(a)(1), 
1208.33(a)(1). The Circumvention of Lawful Pathways rule's rebuttable 
presumption of asylum ineligibility applies to a noncitizen who 
``enters the United States from Mexico at the southwest land border or 
adjacent coastal borders.'' See 8 CFR 208.33(a)(1), 1208.33(a)(1). In 
addition, among other requirements, the rebuttable presumption only 
applies if the noncitizen traveled through a country other than the 
noncitizen's country of citizenship, nationality, or, if stateless, 
last habitual residence, that is a party to the Refugee Convention or 
the Refugee Protocol. See 8 CFR 208.33(a)(1)(iii), 1208.33(a)(1)(iii).
    The Departments specifically welcome comment on two proposals: 
first, whether, in 8 CFR 208.33(a)(1) and 1208.33(a)(1), the 
Departments should remove the words ``from Mexico at the southwest land 
border or adjacent coastal borders'' and replace them with the words 
``across the southern border (as that term is described in section 4(d) 
of Presidential Proclamation 10773).'' Second, the Departments welcome 
comment on whether to add to the beginning of 8 CFR 208.33(a)(1)(iii) 
and 1208.33(a)(1)(iii) a clause that reads, ``After the alien entered 
the United States by sea, or''--so that paragraph (a)(1)(iii) would 
state in full, ``After the alien entered the United States by sea, or 
after the alien traveled through a country other than the alien's 
country of citizenship, nationality, or, if stateless, last habitual 
residence, that is a party to the 1951 United Nations Convention 
relating to the Status of Refugees or the 1967 Protocol relating to the 
Status of Refugees.'' In a future final rule, the Departments may adopt 
the first proposal, the second proposal, or both.
    Although this request for comment is similar to the Departments' 
request for comment in the Circumvention of Lawful Pathways rule, see 
88 FR at 31440-44, the Departments are now seeking comments on the 
geographic scope in the broader context of this Securing the Border 
\418\ rulemaking. Given the intervening Securing the Border rulemaking, 
the comments that will be most useful are those that are informed by 
the full range of actions taken to address migration since the end of 
the Title 42 public health Order. Accordingly, although the Departments 
intend to incorporate any comments received on the 2023 Circumvention 
of Lawful Pathways rule's request for comment into the docket for this 
request for comment, those who submitted comments in response to that 
request for comment are encouraged to update their comments in light of 
the intervening Securing the Border rulemaking and resubmit their 
comments here.
---------------------------------------------------------------------------

    \418\ Although the Departments have not referred to the present 
rule as the ``Securing the Border rule'' throughout this preamble, 
the Departments do so in this request for comment to distinguish the 
present rule from the Circumvention of Lawful Pathways rule in an 
effort to avoid confusion.
---------------------------------------------------------------------------

    Unlike the Circumvention of Lawful Pathways rule, the Proclamation 
and the Securing the Border rule apply to certain noncitizens entering 
the United States across the ``southern border,'' which includes 
``southern coastal borders.'' 89 FR at 48491; see also 8 CFR 208.13(g), 
1208.13(g). Section 4(b) of the Proclamation defines ``southern coastal 
borders'' to mean ``all maritime borders in Texas, Louisiana, 
Mississippi, Alabama, and Florida; all maritime borders proximate to 
the southwest land border, the Gulf of Mexico, and the southern Pacific 
coast in California; and all maritime borders of the United States 
Virgin Islands and Puerto Rico.'' 89 FR at 48491. The term ``southern 
border'' adopted by the Proclamation and the Securing the Border rule 
is categorically broader than the term ``adjacent coastal borders'' 
adopted in the Circumvention of Lawful Pathways rule, which the 
Departments defined as ``any coastal border at or near the U.S.-Mexico 
border.'' 88 FR at 31320. In contrast to this definition, the term 
``southern coastal borders'' encompasses certain specified coastlines 
that are not at or

[[Page 81273]]

near the U.S.-Mexico border, such as the maritime borders of Puerto 
Rico and the United States Virgin Islands. 89 FR at 48711 n.4.
    The Departments believe it is best to align the geographic reach of 
the Circumvention of Lawful Pathways rule to that in the Proclamation, 
which was adopted by the Securing the Border rule, for three reasons: 
(1) to make clear to noncitizens intending to migrate to the United 
States that timely consequences will result if they resort to crossing 
irregularly no matter where along the southern border they cross; (2) 
to deter smugglers and noncitizens from using dangerous maritime 
migration to avoid the rebuttable presumption of asylum ineligibility 
if the noncitizen did not travel through a country other than the 
noncitizen's country of citizenship, nationality, or, if stateless, 
last habitual residence, that is a party to the 1951 United Nations 
Convention relating to the Status of Refugees or the 1967 Protocol 
relating to the Status of Refugees, see 8 CFR 208.33(a)(1)(iii), 
1208.33(a)(1)(iii); and (3) to ensure consistency in implementation. 
This modification to the geographic reach of the Circumvention of 
Lawful Pathways rule would encourage noncitizens to avoid dangerous 
maritime migration and further persuade them to utilize lawful, safe, 
and orderly pathways. As discussed in more detail below, maritime 
migration results in life-threatening risks for both migrants and DHS 
personnel.
    When the Departments initially proposed the Circumvention of Lawful 
Pathways rule, the rule would have covered migrants who entered the 
United States from Mexico ``at the southwest land border''--that is, 
``along the entirety of the U.S. land border with Mexico.'' 88 FR at 
11704 n.1; see also id. at 11750, 11751. However, the Departments 
received comment from the public expressing concern that limiting the 
rebuttable presumption to only those who entered the United States from 
Mexico by land would incentivize noncitizens without documents 
sufficient for lawful admission to circumvent the land border by making 
the hazardous attempt to reach the United States by sea. 88 FR at 
31320. Concurring with this concern, the Departments modified the 
geographic reach of the rebuttable presumption to include ``adjacent 
coastal borders'' so that it applied to noncitizens who crossed into 
the United States from Mexico via adjacent coastal borders. Further, 
this definition mirrored the geographic reach of the Centers for 
Disease Control and Prevention's (``CDC'') Title 42 public health Order 
and, as implemented by CBP, the Amended CDC Order issued in May 2020. 
Id. Because CBP had been interpreting the term in this way for three 
years before the Circumvention of Lawful Pathways rule's finalization, 
the Departments believed this consistency with the Title 42 public 
health Order in geographic application would help prevent smugglers 
from exploiting what could be perceived as a loophole by persuading 
migrants to take the perilous journey of trying to reach the United 
States by sea upon the termination of the Order. Id.
    The Departments now believe that further expanding the geographic 
scope of the Circumvention of Lawful Pathways rule beyond ``adjacent 
coastal borders,'' and, with respect to those who arrive by sea, 
removing the restriction that the rule only applies to noncitizens who 
enter the United States from Mexico, could be supported by the same 
justification for the Securing the Border rule's inclusion of southern 
coastal borders: these changes would ``help avoid any incentive for 
maritime migration to such locations'' that are currently covered by 
the Securing the Border rule but not by the Circumvention of Lawful 
Pathways rule. 89 FR at 48711 n.4. For example, expanding the scope of 
the Circumvention of Lawful Pathways rule in this manner would mean 
that a noncitizen who enters the United States at a border via the Gulf 
of Mexico would be subject to the Circumvention of Lawful Pathways rule 
regardless of whether they transited through Mexico. Further, as an 
operational matter, this would ensure consistency in processing. 
Aligning the geographic scope of the Circumvention of Law Pathways rule 
with that of the Securing the Border rule would eliminate one 
operational switch that DHS personnel would have to make when the 
provisions of the Securing the Border rule discontinue in the absence 
of emergency border circumstances. This would allow DHS personnel to 
operate consistently with respect to noncitizens encountered utilizing 
maritime migration to cross the southern coastal borders, all of whom 
would be presumptively ineligible for asylum.
    Maritime migration poses unique hazards to life and safety to both 
migrants and DHS personnel.\419\ Human smugglers and noncitizens 
migrating to the United States continue to use unseaworthy, overly 
crowded vessels, piloted by inexperienced mariners, without any safety 
equipment--including, but not limited to, personal flotation devices, 
radios, maritime global positioning systems, or vessel locator 
beacons.\420\ The USCG regularly interdicts noncitizens employing 
maritime migration in the Gulf of Mexico and Atlantic Ocean in 
makeshift, overcrowded vessels.\421\ In FY 2022, over 12,500 
noncitizens were interdicted by the USCG and in FY 2023, that figure 
was nearly 13,500.\422\ This is a dramatic increase from previous 
years. For example, between FY 2017 and FY 2020, annual maritime 
interdictions never exceeded 3,600.\423\ Between October 1, 2023 and 
April 30, 2024, the USCG carried out 35 maritime migration 
interdictions in the Mona Passage and waters near Puerto Rico, with 
nearly 1,200 noncitizens interdicted at sea from various countries such 
as the Dominican Republic, Haiti, and Venezuela.\424\ Between October 
1, 2022 and August 5, 2023, the USCG interdicted over 6,900 migrants 
from Cuba alone.\425\ In August 2024, the

[[Page 81274]]

USCG interdicted a disabled migrant vessel and repatriated 182 migrants 
back to Haiti.\426\ In May 2024, the USCG located and intercepted a 30-
foot makeshift vessel with over 60 migrants crammed into it traveling 
nearly 63 miles north of Punta Cana, Dominican Republic.\427\ During a 
second interdiction occurring on May 20, 2024, CBP's Air and Marine 
Operations interdicted a ``grossly overloaded makeshift vessel'' 
carrying 68 migrants located two miles from Puerto Rico's 
coastline.\428\
---------------------------------------------------------------------------

    \419\ The Departments also reiterate the explanation of the 
dangers of maritime migration in the Circumvention of Lawful 
Pathways rule. See 88 FR at 31441-42.
    \420\ See David C. Adams, James Wagner, At Least 40 Migrants Die 
in Boat Fire Off Haitian Coast, U.N. says, N.Y. Times (July 19, 
2024), https://nytimes.com/2024/07/19/world/americas/boat-fire-haiti-migrants.html; Samantha Schmidt, Paulina Villegas, Hannah 
Dormido, Dreams and Deadly Seas: Bahamas Human Smuggling by Boat, 
The Wash. Post (July 27, 2023), https://www.washingtonpost.com/nation/interactive/2023/bahamas-human-smuggling-by-boat/ (``The 
United States . . . Coast Guard cutters have been rescuing migrants 
from foundering or overcrowded boats every few days.''); Adriana 
Gomez Licon, Situation `dire' as Coast Guard seeks 38 missing off 
Florida, Associated Press (Jan. 26, 2022), https://apnews.com/article/florida-capsized-boat-live-updates-f251d7d279b6c1fe064304740c3a3019; Gina Martinez, Coast Guard rescues 
more than 180 people from overloaded sailboat in Florida Keys, CBS 
News, CW44 Tampa (Nov. 22, 2022), https://www.cbsnews.com/news/coast-guard-rescues-more-than-180-people-overloaded-sailboat-florida-keys/.
    \421\ USCG, Press Release: Coast Guard repatriates 136 migrants 
to Dominican Republic, following 3 separate interdictions near 
Puerto Rico (May 28, 2024), https://www.news.uscg.mil/Press-Releases/Article/3789058/coast-guard-repatriates-136-migrants-to-dominican-republic-following-3-separate; see also USCG, Press 
Release: Coast Guard repatriates 119 migrants to Dominican Republic 
following 2 interdictions near Puerto Rico (Apr. 29, 2024), https://www.news.uscg.mil/Press-Releases/Article/3758973/coast-guard-repatriates-119-migrants-to-dominican-republic-following-2-interdic/.
    \422\ OHSS analysis of July 2024 Persist Dataset (Maritime 
Interdictions tab).
    \423\ Id.
    \424\ USCG, Press Release: Coast Guard repatriates 136 migrants 
to Dominican Republic, following 3 separate interdictions near 
Puerto Rico (May 28, 2024), https://www.news.uscg.mil/Press-Releases/Article/3789058/coast-guard-repatriates-136-migrants-to-dominican-republic-following-3-separate.
    \425\ USCG, Press Release: Coast Guard repatriates 27 people to 
Cuba (Aug. 5, 2023), https://www.news.uscg.mil/Press-Releases/Article/3484466/coast-guard-repatriates-27-people-to-cuba/ cuba/.
    \426\ USCG, Press Release: Coast Guard repatriates 182 migrants 
to Haiti (Aug. 21, 2024), https://www.news.uscg.mil/Press-Releases/Article/3878831/coast-guard-repatriates-182-migrants-to-haiti/.
    \427\ USCG, Press Release: Coast Guard repatriates 136 migrants 
to Dominican Republic, following 3 separate interdictions near 
Puerto Rico (May 28, 2024), https://www.news.uscg.mil/Press-Releases/Article/3789058/coast-guard-repatriates-136-migrants-to-dominican-republic-following-3-separate/.
    \428\ Id.
---------------------------------------------------------------------------

    In FY 2023, the USCG recorded 112 noncitizen deaths, including 
those presumed dead, as a result of irregular maritime migration. IOM's 
Missing Migrants Project found that from 2014 to 2024, in the Americas, 
the maritime route from the Caribbean to the United States resulted in 
the second-highest number of dead and missing migrants, after the U.S.-
Mexico border crossing.\429\ The intention behind the Circumvention of 
Lawful Pathways rule is to discourage individuals from resorting to 
irregular migration, including markedly more dangerous maritime 
migration, and to instead incentivize noncitizens to utilize lawful, 
safe, and orderly pathways and processes to come to the United States. 
Expanding the geographic scope of the Circumvention of Lawful Pathways 
rule's rebuttable presumption would expand that incentive structure to 
cover the entire southern border, rather than just a portion of it.
---------------------------------------------------------------------------

    \429\ IOM, Missing Migrants Project: Migration Within the 
Americas, https://missingmigrants.iom.int/region/americas (last 
visited Aug. 15, 2024). IOM cautions that ``[c]ollecting information 
about migrants who die or disappear on maritime routes while 
attempting to migrate by boat in the Caribbean is also very 
challenging. The remote nature of maritime routes, the secrecy in 
which boats set out, and the lack of information on trajectories 
means that many shipwrecks carrying migrants are never identified. 
It is rarely known exactly how many people were on board boats that 
ran into trouble at sea, making it difficult to verify how many 
people went missing, or to know any information about their 
identities.'' Id.
---------------------------------------------------------------------------

    The United States has taken significant steps to expand safe and 
orderly options for migrants, including migrants from the Caribbean 
region, to lawfully enter the United States.\430\ The United States has 
increased and will continue to increase refugee processing in the 
Western Hemisphere; country-specific and other available processes for 
individuals seeking parole for urgent humanitarian reasons or 
significant public benefit, including the Cuba and Haiti parole 
processes; and opportunities to lawfully enter the United States for 
the purpose of seasonal employment.\431\ In addition, the United States 
has resumed the Cuban Family Reunification Program and resumed and 
increased participation in the Haitian Family Reunification 
Program.\432\ The availability of these pathways serves as important 
background for the proposal to expand the geographic reach of the 
Circumvention of Lawful Pathways rebuttable presumption to include 
those who enter at southern coastal borders, irrespective of whether 
they traveled through a third country. Such pathways for migrants from 
this region provide meaningful opportunities for these individuals to 
use a lawful, safe, and orderly pathway to enter the United States, 
even if they did not first travel through a third country where they 
could request such protection. Accordingly, the Departments are 
considering and seeking comment on applying the Circumvention of Lawful 
Pathways rebuttable presumption to those who enter the United States 
via the southern coastal border, irrespective of whether they traveled 
through a third country, to discourage noncitizens from using dangerous 
maritime migration routes.
---------------------------------------------------------------------------

    \430\ See DHS, DHS Continues to Prepare for End of Title 42; 
Announces New Border Enforcement Measures and Additional Safe and 
Orderly Processes (Jan. 5, 2023), https://www.dhs.gov/news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-border-enforcement-measures-and.
    \431\ See DHS, Fact Sheet: DHS Continues to Strengthen Border 
Security, Reduce Irregular Migration, and Mobilize International 
Partnerships (June 4, 2024), https://www.dhs.gov/news/2024/06/04/fact-sheet-dhs-continues-strengthen-border-security-reduce-irregular-migration-and.
    \432\ See DHS, DHS Modernizes Cuban and Haitian Family 
Reunification Parole Processes (Aug. 10, 2023), https://www.dhs.gov/news/2023/08/10/dhs-modernizes-cuban-and-haitian-family-reunification-parole-processes.
---------------------------------------------------------------------------

B. Extending the Applicability of the Circumvention of Lawful Pathways 
Rebuttable Presumption

    Currently, the Circumvention of Lawful Pathways rule applies to a 
noncitizen who, inter alia, entered the United States from Mexico 
``between May 11, 2023 and May 11, 2025'' and ``[s]ubsequent to the end 
of implementation of the Title 42 public health Order.'' 8 CFR 
208.33(a)(1)(i)-(ii), 1208.33(a)(1)(i)-(ii). When issuing that rule, 
the Departments acknowledged that ``aspects of the present situation at 
the border are likely to continue for some time and are unlikely to be 
significantly changed in a short period,'' but the Departments opted 
for a two-year ``entry period'' to, inter alia, address the surge in 
migration that, in the absence of the Circumvention of Lawful Pathways 
rule, was anticipated to follow the lifting of the Title 42 public 
health Order and to provide sufficient time to implement and assess the 
effects of the policy contained in that rule. See 88 FR at 11727; 88 FR 
at 31421. The Departments are now considering, and request comment on, 
whether to extend the entry period indefinitely so that the rebuttable 
presumption will apply to noncitizens who entered the United States 
without documents sufficient for lawful admission any time on or after 
May 11, 2023, and, if the applicability is extended, other appropriate 
changes. See 8 CFR 208.33(a)(1)(i), 1208.33(a)(1)(i); see also, e.g., 
id. 208.33(c), 1208.33(d) (providing the ongoing applicability of the 
Circumvention of Lawful Pathways rebuttable presumption to any future 
asylum applications filed by noncitizens who enter during the entry 
period regardless of when the application was filed, except in the case 
of certain children who entered as part of a family unit if they later 
apply for asylum as principal applicants).
    In the Circumvention of Lawful Pathways NPRM, the Departments 
specifically welcomed comment on whether the proposed two-year duration 
of the rule's applicability ``should be modified, including whether it 
should be shorter, longer, or of indefinite duration.'' See 88 FR at 
11708. In response to comments received on the NPRM, the Departments 
maintained the proposed two-year period in the Circumvention of Lawful 
Pathways final rule because that rule's focus was to respond to the 
anticipated surge in migration upon the termination of the Title 42 
public health Order. See 8 CFR 208.33(a)(1)(i), 1208.33(a)(1)(i); 88 FR 
at 31421-22. The Departments stated that a 24-month period would 
provide ``sufficient time to implement and assess the effects of the 
policy contained in this rule'' and that ``a 24-month period is 
sufficiently long to impact the decision-making process for noncitizens 
who might otherwise pursue irregular migration and make the dangerous 
journey to the United States, while a shorter duration, or one based on 
specified conditions, would likely not

[[Page 81275]]

have such an effect.'' 88 FR at 31421. The Departments further stated 
that the United States would continue to build on the multi-pronged, 
long-term strategy with our foreign partners throughout the region to 
support conditions that would decrease irregular migration, work to 
improve refugee processing and other immigration pathways in the 
region, and implement other measures as appropriate, including 
continued efforts to increase immigration enforcement capacity and 
streamline processing of asylum seekers and other migrants. Id.
    The Departments recognized, however, ``that there is not a specific 
event or demarcation that would occur at the 24-month mark,'' and 
stated that they would ``closely monitor conditions during this period 
in order to review and make a decision, consistent with the 
requirements of the APA, whether additional rulemaking is appropriate 
to modify, terminate, or extend the rebuttable presumption and the 
other provisions of th[e] rule.'' Id. The Departments explained that 
such review and decision would consider all relevant factors, such as 
resource limitations and the Departments' capacity to safely, humanely, 
and efficiently administer the immigration system; the availability of 
lawful pathways to seek protection in the United States and partner 
nations; and foreign policy considerations. Id. The Departments also 
expected to consider their experience under the Circumvention of Lawful 
Pathways rule at the 24-month mark, including the effects of the 
rebuttable presumption on those pursuing asylum claims. Id. In 
addition, the Departments expected to consider changes in policy views 
and imperatives, including foreign policy objectives, in making any 
decision regarding the future of the rule. Id. The Departments did not 
identify specific metrics for extending the rule ex ante, given the 
dynamic nature of the circumstances at the SWB and the multifaceted 
domestic and foreign policy challenges facing the Departments. Id.
    The Departments have considered these factors and propose and seek 
comment on an indefinite extension of the applicability of the 
Circumvention of Lawful Pathways rule's rebuttable presumption and 
credible fear provisions. The Departments also seek comment on whether 
other changes to the Circumvention of Lawful Pathways rule's provisions 
would be appropriate if its applicability becomes indefinite. First, as 
detailed in the IFR, although the Circumvention of Lawful Pathways rule 
did not fully mitigate the very high levels of irregular migration 
during the immediate post-pandemic period, it yielded tangible results 
that ameliorated a situation that otherwise would have been more 
challenging. See 89 FR at 48723-31.\433\ Extending the entry period for 
the Circumvention of Lawful Pathways rule would ensure that DHS can 
continue to deliver timely consequences, where appropriate, to more 
noncitizens encountered, even at levels of migration below the 
threshold at which the suspension and limitation on entry under this 
rule would be active. As the Departments explained in the IFR, ``at 
1,500 daily encounters between POEs . . . DHS would be able to quickly 
remove the majority of the people it processes at the border on any 
given day who have no legal basis to remain in the United States.'' Id. 
at 48752. This estimate was expressly based on the Departments' 
demonstrated performance under the Circumvention of Lawful Pathways 
rule, see id., and therefore accounted for the effects of that policy 
as well as the most recent data on capacity limitations, demographics, 
fear claim rates, and other variables. See id. Even with the 
Proclamation and Securing the Border rule in place, the absence of the 
Circumvention of Lawful Pathways rebuttable presumption would mean that 
when encounters between POEs begin to exceed 1,500 encounters and the 
threshold for continuing or reactivating the measures in this rule is 
not yet met, the Departments' ability to deliver timely decisions and 
consequences would likely be impaired.\434\
---------------------------------------------------------------------------

    \433\ Between May 12, 2023, and June 4, 2024, CBP placed into 
expedited removal approximately 920 individuals encountered at and 
between POEs each day on average. OHSS analysis of July 2024 Persist 
Dataset (Imm Post Pandemic ERCF tab). While encounters at the SWB 
and in coastal sectors averaged over 5,000 per day for the period 
from May 12, 2023, to June 4, 2024, border encounters remained below 
the levels projected to occur in the absence of the Circumvention of 
Lawful Pathways rule. Id.; 89 FR at 48724 & n.99.
    \434\ Assuming similar processing capacity as during the 
immediate post-pandemic period and the same mix of encounter 
demographics as observed during the first two months of enforcement 
under the IFR, OHSS estimates that at 1,500 encounters (including 
all UCs) approximately 58 percent of single adult and family unit 
encounters would be quickly repatriated (including voluntary 
returns, reinstatements, and expedited removals) with the rebuttable 
presumption in effect, versus 46 percent in the absence of the 
rebuttable presumption. OHSS analysis of July 2024 Persist Dataset 
and data downloaded from UIP on September 3, 2024 (CLP v pre-CLP 
Proj Outcomes tab). At 2,500 encounters per day, OHSS estimates that 
41 percent of single adult and family unit encounters would be 
quickly repatriated with the rebuttable presumption in effect, 
versus 34 percent in the absence of the rebuttable presumption. Id.
---------------------------------------------------------------------------

    Second, the Departments continue to be subject to significant 
resource limitations, see 89 FR at 48728-31, such that--as explained 
earlier in this section--even at levels of encounters below the 2,500-
encounter threshold contained in section 2(b) of the Proclamation, DHS 
would not be able to quickly remove the majority of those encountered 
who do not have a basis to remain.\435\ In such circumstances, DHS will 
need policy interventions like the Circumvention of Lawful Pathways 
rule to continue delivering timely consequences. Although there were 
months during the FY 2013-FY 2019 period ``in which daily encounters . 
. . between 1,500 and 2,500 resulted in an average of 210 individuals 
released each day,'' see 89 FR at 48753, such a low release rate would 
be unrealistic given today's demographic mix of encounters, even at 
1,500 daily encounters, particularly in the absence of policy 
interventions such as the Circumvention of Lawful Pathways rule. For 
instance, even under the Circumvention of Lawful Pathways rule, 
assuming that USBP processes 900 noncitizens per day for expedited 
removal at 1,500 daily encounters between POEs, and assuming a similar 
level of voluntary returns and reinstatements as observed during the 
immediate pre-pandemic period, DHS would be able to refer into 
expedited removal 77 percent of single adults and individuals in family 
units to expedited removal, and would likely release over 530 single 
adults and individuals in family units.\436\ This is due to current 
resource limits for expedited removal, current demographics, and fear-
claim and screen-in rates under the Circumvention of Lawful Pathways 
rule.\437\ If one adjusts the calculation to use the fear-claim and 
comprehensive screen-in rates that existed during the pre-pandemic 
period, over 700 single adults and family members would be 
released.\438\ In short, unless the Departments extend the entry period 
of the Circumvention of Lawful Pathways rule, DHS's ability to deliver 
timely consequences would be further degraded because releases pending

[[Page 81276]]

section 240 removal proceeding would be significantly higher. If the 
demographics were to shift such that the Circumvention of Lawful 
Pathways rule was no longer necessary to manage steady-state levels of 
migration, the Departments could at that time revise policy as 
appropriate.
---------------------------------------------------------------------------

    \435\ After the conditions for discontinuing the suspension and 
limitation on entry under section 2(a) of the Proclamation are met, 
the suspension and limitation on entry in this rule will continue or 
reactivate when the 2,500-encounter threshold in section 2(b) of the 
Proclamation is reached. This numerical gap between discontinuation 
and continuation or reactivation is important for operational 
reasons, see 89 FR at 48753, but also potentially results in periods 
of relatively high encounter numbers that the Circumvention of 
Lawful Pathways rule is needed to manage.
    \436\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (CLP v pre-CLP Proj 
Outcomes tab).
    \437\ Id.
    \438\ Id.
---------------------------------------------------------------------------

    Third, even as the United States has continued to coordinate 
extensively with its regional partners to expand the availability of 
lawful, safe, and orderly pathways, the Departments have found that 
these efforts are strengthened by the imposition of appropriate 
measures to prepare for and respond to ongoing migration challenges as 
needed. A key component of the Departments' engagement with foreign 
counterparts has been their ability to demonstrate a willingness to 
impose, and as appropriate expand, meaningful policy and operational 
measures in direct response to the pressures caused by migratory flows. 
See 89 FR at 48759. The Departments believe that ``leading by example'' 
has been an important part of our overall regional engagement and 
helped encourage regional partners to continue to adopt new and 
creative policy and operational migration responses. Id. By extending 
the applicability of the Circumvention of Lawful Pathways rule, the 
Departments believe it would not only demonstrate to our regional 
partners that we are committed to disincentivizing irregular migration, 
but it would also encourage our international partners to maintain 
their mutual efforts to address the unprecedented migration of people 
in the Western Hemisphere.
    Fourth, with respect to the effects of the rule in general and on 
those who migrate irregularly in particular, experience has proven that 
the ability to deliver swift consequences for those who do not use 
lawful, safe, and orderly pathways or processes for entering the United 
States is critical; the expiration of the Circumvention of Lawful 
Pathways rule would limit the Departments' abilities to deliver 
consequences where appropriate, likely changing the perception and 
decision-making calculus of would-be migrants and thus could be a pull-
factor and serve to increase border encounters. Extending the entry 
period indefinitely would avoid creating the impression among those 
contemplating crossing irregularly that no timely consequences will 
apply to them if they wait until the suspension and limitation on 
asylum eligibility provided for in the Securing the Border rule is 
lifted and then cross irregularly.
    The indefinite applicability of the entry period would also ensure 
that the Circumvention of Lawful Pathways rule's incentive for migrants 
to utilize lawful, safe, and orderly pathways will continue should the 
enhanced measures in the Securing the Border rule not be in effect in 
the future. Although initially designed as a temporary measure, the 
Circumvention of Lawful Pathways rule is also a critical component of 
DHS's broader efforts to incentivize migrants to use the lawful, safe, 
and orderly pathways and processes that the United States Government 
has made available to them, thereby reducing irregular migration and 
allowing more efficient and timely processing at the southern border. 
See 88 FR at 31318. Since 2021, the Departments have steadily expanded 
such pathways, including by increasing refugee processing in the 
Western Hemisphere; providing country-specific and other available 
processes for individuals seeking parole for urgent humanitarian 
reasons or significant public benefit; and expanding the availability 
of the CBP One app to allow noncitizens to schedule appointments to 
present at a POE rather than risking their lives by crossing the border 
unlawfully.\439\ To encourage noncitizens to continue to pursue such 
pathways, rather than putting their lives in the hands of dangerous 
smugglers and resorting to irregular migration that strains the border 
security and immigration system, the Departments are considering 
extending the Circumvention of Lawful Pathways rule indefinitely.
---------------------------------------------------------------------------

    \439\ See DHS, Fact Sheet: DHS Continues to Strengthen Border 
Security, Reduce Irregular Migration, and Mobilize International 
Partnerships (June 4, 2024), https://www.dhs.gov/news/2024/06/04/fact-sheet-dhs-continues-strengthen-border-security-reduce-irregular-migration-and.
---------------------------------------------------------------------------

    Fifth, there are a variety of factors outside of DHS's control that 
an indefinite extension could help mitigate. Political unrest abroad, 
natural disasters and climate change, perceptions about U.S. elections 
or changes in domestic policy, implications of elections in the region, 
large-scale economic fluctuations, and the migration management 
practices of regional partners (e.g., their enforcement practices or 
visa policies)--all have the potential to serve as push or pull factors 
and dramatically impact encounters at the southern border. See 88 FR 
31327. An indefinite extension would ensure consistency in U.S. border 
management practices and maintain a basic tool necessary to address 
potential migration surges.
    Sixth, the Departments believe this approach would complement 
recent policy initiatives, including this Securing the Border rule, by 
allowing DHS to continue to deliver timely consequences to more 
noncitizens encountered who do not have a legal basis to remain, even 
at levels of migration below the threshold at which the suspension and 
limitation on entry would be continued or reactivated.
    Finally, extending the applicability of the rebuttable presumption 
would guard against a circumstance where an adverse litigation outcome 
against any aspect of this rule or its limitation on asylum eligibility 
would leave the Departments without sufficient tools in place to 
address high volumes of migration. Litigation against the IFR remains 
ongoing,\440\ as does litigation against the Circumvention of Lawful 
Pathways Rule.\441\ Maintaining the rebuttable presumption as a 
fallback measure is a commonsense way to address the possibility of a 
judicial decision that temporarily or permanently impairs the 
Departments' ability to implement this rule.
---------------------------------------------------------------------------

    \440\ See Las Americas Immigrant Advocacy Ctr. v. DHS, No. 1:24-
cv-1702-RC (D.D.C. filed June 12, 2024).
    \441\ See East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810, 
2023 WL 4729278 (N.D. Cal. July 25, 2023), vacatur stayed pending 
appeal East Bay Sanctuary Covenant v. Biden, No. 23-16032 (9th Cir. 
Aug. 3, 2023); M.A. v. Mayorkas, No. 23-cv-01843 (D.D.C. June 6, 
2023); Texas v. Mayorkas, No. 23-cv-00024 (W.D. Tex. May 23, 2023); 
and Indiana v. Mayorkas, 23-cv-00106 (D.N.D. May 31, 2023).
---------------------------------------------------------------------------

    In considering whether to extend the temporal applicability of the 
Circumvention of Lawful Pathways rule's rebuttable presumption and 
credible fear provisions and, if so, how to implement such a change, 
the Departments expect to consider other changes to the rule's 
provisions warranted by an extension, and as necessary to achieve the 
goals of the rule. The Departments request comment regarding any such 
changes and particularly welcome comments addressing whether and how 
extending the Circumvention of Lawful Pathways rule's temporal 
applicability--especially an indefinite extension--would warrant:
    <bullet> Amendments to the continuing applicability provisions at 8 
CFR 208.33(c)(1) and 1208.33(d)(1) regarding future applicability of 
the rebuttable presumption of asylum ineligibility to those who enter 
and are subject to the Circumvention of Lawful Pathways rule's 
provisions;
    <bullet> Amendments to the exception to continuing applicability at 
8 CFR 208.33(c)(2) and 1208.33(d)(2) for certain asylum applications 
filed after May 11, 2025, by noncitizens who entered as children in a 
family unit and who later apply for asylum as principal applicants;

[[Page 81277]]

    <bullet> Amendments to the grounds for necessarily rebutting the 
rebuttable presumption;
    <bullet> Amendments to the exceptions to the rebuttable 
presumption; and
    <bullet> The addition or amendment of any other specific regulatory 
provisions related to the Circumvention of Lawful Pathways rule in 
light of the proposal to extend the temporal application of the 
rebuttable presumption and related credible fear provisions.

V. Regulatory Requirements

A. Administrative Procedure Act

    The Departments have forgone the Administrative Procedure Act's 
(``APA'') delayed-effective-date procedure in implementing this rule 
because the Departments have found good cause to do so and because this 
rule relates to a foreign affairs function of the United States. See 5 
U.S.C. 553(d)(3), (a)(1).\442\ This rule generally adopts the 
provisions of the IFR with a few technical amendments and changes to 
the calculation of thresholds to ensure those provisions can remain in 
force until there has been a sustained decrease in daily encounters. 
None of the amendments, crucially, implicate the justifications for the 
30-day waiting period. The purpose of the waiting period is ``to give 
affected parties time to adjust their behavior before the final rule 
takes effect.'' Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 
(9th Cir. 1992). Here, however, that purpose would not be served by 
delaying the effective date of the rule: The IFR has been in effect 
since June 5, and the limited changes adopted in this rule do not 
require anyone other than the Departments themselves to change their 
conduct or to take any particular steps in advance of the effective 
date. See United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 
1977) (noting that the ``legislative history of the APA'' indicates 
that the waiting period ``was not intended to unduly hamper agencies 
from making a rule effective immediately,'' but intended ``to `afford 
persons affected a reasonable time to prepare for the effective date of 
a rule . . . or to take other action which the issuance may prompt' '' 
(citing S. Rep. No. 752, 79th Cong., 1st Sess. 15 (1946); H.R. Rep. No. 
1980, 79th Cong., 2d Sess. 25 (1946))). Instead, the changes made by 
this rule address the encounter thresholds that the Departments will 
use to determine the applicability of the rule's suspension and 
limitation on entry and better ensure that the measures devised to deal 
with emergency border circumstances will remain in place until there 
has been a sustained easing of those circumstances.
---------------------------------------------------------------------------

    \442\ There is also good cause to forgo notice and comment on 
the rule's updates to the cross-reference to the definition of 
``victim of a severe form of trafficking in persons'' in 8 CFR 
208.33(a)(3)(i)(C) and 1208.33(a)(3)(i)(C) from ``Sec.  214.11'' to 
``Sec.  214.201.'' Notice and an opportunity to comment on that 
technical change to the cross-reference is unnecessary as it does 
not change the substance of the provision and merely updates a 
cross-reference that has been rendered imprecise by a subsequent 
rulemaking. See 89 FR at 34931-32 (moving the definitions from 8 CFR 
214.11 to the newly created 8 CFR 214.201).
---------------------------------------------------------------------------

    In finding good cause to bypass the 30-day waiting period, the 
Departments have taken care to ``balance the necessity for immediate 
implementation against principles of fundamental fairness which require 
that all affected persons be afforded a reasonable [amount of] time to 
prepare for the effective date of [the] rul[e].'' Gavrilovic, 551 F.2d 
at 1105. Here, that balance tips considerably in favor of immediate 
implementation, where the limited changes introduced by this rule 
preserve the status quo and do not interfere with the operative 
provisions of the IFR. At most, the amendments in this rule are 
designed to buttress the IFR's effectiveness in dealing with the 
emergency border circumstances by better ensuring that its limitation 
on asylum eligibility and other measures will stay in place until there 
has been a sustained improvement in encounter patterns across the 
southern border. For instance, the September 27 Proclamation and this 
rule provide that UCs from non-contiguous countries should be included 
in calculating the number of encounters to determine whether the 
suspension and limitation on entry remain in effect or are 
discontinued. They additionally provide that the suspension and 
limitation on entry are not to be discontinued unless there has been a 
7-consecutive-calendar-day average of less than 1,500 encounters that 
is sustained over a period of 28 days. The changes to the threshold 
represent an incremental improvement upon the prior thresholds. These 
changes fine-tune the statistical parameters for tracking daily 
encounters so as to immunize the emergency measures from transitory 
blips in the data, but do not disturb or add to requirements imposed by 
the IFR.
    Even in the narrow circumstances where the changes made in this 
final rule might have an effect on whether the rule's provisions apply, 
a waiting period would provide little benefit. The amendments do not 
impose new requirements or obligations on migrants contemplating a 
border crossing, nor on other entities that might claim an interest in 
the rulemaking, such as legal service organizations looking to help 
noncitizens navigate the immigration system (or, to the extent such 
interests should be considered, smugglers and TCOs angling to learn 
about legal developments ahead of time so as to exploit perceived gaps 
in the border processing regime). All of those parties have long been 
on notice of the substantive provisions of the June 3 Proclamation and 
the IFR, none of which this rule purports to invalidate. The 
Proclamation and the IFR went into effect months ago and have since 
been the subject of regular public updates from DHS, as well as 
detailed coverage from the national news press.\443\
---------------------------------------------------------------------------

    \443\ See DHS, Fact Sheet: President Biden's Presidential 
Proclamation and Joint DHS-DOJ Interim Final Rule Cut Encounters at 
Southwest Border by 55 Percent (July 24, 2024), https://www.dhs.gov/news/2024/07/24/fact-sheet-president-bidens-presidential-proclamation-and-joint-dhs-doj-interim; CBP, Statistics Show Lowest 
Southwest Border Encounters in Nearly Four Years (Aug. 16, 2024), 
https://www.cbp.gov/newsroom/national-media-release/cbp-releases-july-2024-monthly-update; Miriam Jordan & J. David Goodman, Amid 
Talk of Border Chaos, Crossings Have Sharply Declined, N.Y. Times 
(July 20, 2024), https://www.nytimes.com/2024/07/20/us/border-immigration-current-situation.html; Rebecca Santana & Elliot Spagat, 
Border arrests fall more than 40% after Biden's halt to asylum 
processing, Homeland Security says, AP News (June 26, 2024), https://apnews.com/article/border-arrests-biden-asylum-mexico-immigration-6e302f06f567b96d88cc1333aa6d10fe.
---------------------------------------------------------------------------

    To the extent the threshold adjustments might have any effect in 
the next 30 days--i.e., by preventing the IFR's emergency measures from 
being discontinued, when they otherwise would have turned off under the 
old parameters--this would only heighten the impetus for human 
smugglers and other criminals to inflate or distort the significance of 
the policy development to manufacture a sense of urgency among migrants 
and induce them to attempt to enter the country without delay.\444\ As 
the Departments explained in the IFR, individuals contemplating entry 
into the United States may respond to both real and perceived 
incentives that stem from changes to border management and immigration

[[Page 81278]]

policies. 89 FR at 48764. In such circumstances, it may be easier for 
smugglers to ``prey on migrants by spreading rumors, misrepresenting 
facts, or creating a sense of urgency to induce migrants to make the 
journey by overemphasizing the significance of recent or upcoming 
policy developments, among other tactics, and do so particularly when 
there is a change announced in U.S. policy.'' Id.
---------------------------------------------------------------------------

    \444\ See Nick Miroff & Carolyn Van Houten, The Border is 
Tougher to Cross Than Ever. But There's Still One Way into America, 
Wash. Post (Oct. 24, 2018), https://www.washingtonpost.com/world/national-security/theres-still-one-way-into-america/2018/10/24/d9b68842-aafb-11e8-8f4b-aee063e14538_story.html; Valerie Gonzalez, 
Migrants rush across US border in final hours before Title 42 
expires, AP News (May 11, 2023), https://apnews.com/article/immigration-border-title-42-mexico-asylum-8c239766c2cb6e257c0220413b8e9cf9 (``Even as migrants were racing to 
reach U.S. soil before the rules expire, Mexican President 
Andr[eacute]s Manuel L[oacute]pez Obrador said smugglers were 
sending a different message. He noted an uptick in smugglers at his 
country's southern border offering to take migrants to the United 
States and telling them the border was open starting Thursday.'').
---------------------------------------------------------------------------

    Immediate implementation is warranted not only in the absence of 
any benefit that advance notice would provide, but also to avoid the 
significant costs that would accrue to the Department if they had to 
toggle between applying and discontinuing the emergency border measures 
while waiting for this rule to go into effect. That is especially true 
for the amendment expanding the timeline over which a decline in 
encounters must be observed before the agencies will lift the 
suspension and limitation on entry consistent with the June 3 
Proclamation. Prior to this rule, a one-day drop in the 7-consecutive-
day average to a number below 1,500 encounters would have triggered the 
process by which the agencies must discontinue the emergency border 
measures--even if that drop turned out to be a mere one-off event 
amidst a longer pattern of daily encounters far exceeding 1,500. The 
amendments contained in this rule guard against such situations where 
the agencies' ability to consistently apply the rule's important 
measures might be disrupted by short-lived and intermittent 
fluctuations in the longitudinal tracking data.\445\ That rationale 
extends to the decision to bypass the 30-day waiting period for this 
rule. Unless the amendments are implemented immediately, the agencies 
could face a predicament where they would have to abruptly suspend the 
emergency measures if the 7-consecutive-calendar-day-average dipped 
below 1,500 for a single day, only to then reverse course and reimpose 
the same measures as soon as encounters rose again to an average of 
2,500 or more. Such sudden shifts in the implementation of the June 3 
Proclamation and IFR would be operationally burdensome to the agencies 
and would require the development and issuance of starkly differing 
instructions and internal guidance based on whether the measures had 
been discontinued, continued, or reactivated. The possibility of such 
shifts is arguably an inevitable consequence of the decision to limit 
the applicability of the rule's provisions to the existence of a 
temporary circumstance; at the same time, the Departments have sought 
to temper the frequency and severity of such shifts through two means: 
(1) in the IFR, providing for a gap between the 1,500-encounter 
threshold and the 2,500-encounter threshold, see 89 FR at 48753; and 
(2) in this rule, making modest changes to the provisions governing 
encounter calculations and discontinuation mechanics.
---------------------------------------------------------------------------

    \445\ For similar reasons, the June 3 Proclamation provides that 
the suspension and limitation on entry remain in place for 14 days 
after the agencies have determined there has been an average of less 
than 1,500 encounters. This allows ``the Departments to complete 
processing of noncitizens encountered during emergency border 
circumstances and to confirm that a downward trend in encounters is 
sustained.'' 89 FR at 48749.
---------------------------------------------------------------------------

    Finally, for similar reasons, immediate implementation is justified 
in light of the United States' foreign policy priorities. Because this 
rule involves a foreign affairs function of the United States, it is 
exempt from the APA's delayed-effective-date requirement. See 5 U.S.C. 
553(a)(1); see also 89 FR at 48759-62. It is conceivable that had a 30-
day waiting period been imposed, a very substantial one-day drop in the 
encounters average would have led to a discontinuation of the emergency 
provisions of the Proclamation and IFR. That in turn could have had a 
direct and immediate impact on migratory flows through other countries 
in the region, as those countries have articulated before. See 89 FR at 
48761. Past experience has shown that even a perceived policy 
development can touch off a surge in irregular migration throughout the 
region. One regional partner, for example, concluded that the formation 
of caravans in the spring of 2022 was attributable to rumors of the 
termination of the Title 42 public health Order, which were followed by 
an official announcement. Id. Such effects are precisely the kind of 
``definitely undesirable international consequences'' that the 
Departments seek to avoid by forgoing a waiting period. Rajah, 544 F.3d 
at 437 (quotation marks omitted). Immediate implementation also allows 
the United States to demonstrate its continued and shared commitment to 
addressing irregular migration in the region, an objective that 
directly involves a foreign affairs function of the United States. See 
89 FR at 48761-62.
    In sum, the amendments introduced in this final rule do not 
fundamentally change the way in which the IFR addresses the emergency 
circumstances at the border and instead ensure that the system created 
in response to those circumstances remains in force until a decrease in 
encounters proves to be sustained. As a result, the purpose of the 
delayed-effective-date-requirement--providing affected parties time to 
adjust to changes in the status quo--would not be served by delaying 
effectiveness here, where the changes preserve the status quo. 
Moreover, even in the narrow circumstances in which this rule's changes 
to the thresholds would have an effect (by avoiding a discontinuation 
of the rule's emergency procedures due to a short-term change in 
encounter numbers), the Departments are unable to identify sufficient 
particular hardships to affected persons that would contravene fairness 
and potentially outweigh the Departments' considered assessment of the 
need for immediate implementation, including the need to avoid 
disruptive changes to the continuation of the rule's emergency 
provisions. There is good cause to forgo the 30-day waiting period for 
this rule and to instead implement it without delay.

B. Executive Order 12866 (Regulatory Planning and Review), Executive 
Order 13563 (Improving Regulation and Regulatory Review), and Executive 
Order 14094 (Modernizing Regulatory Review)

    Executive Orders 12866 (``Regulatory Planning and Review''), as 
amended by Executive Order 14094 (``Modernizing Regulatory Review''), 
and 13563 (``Improving Regulation and Regulatory Review'') direct 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying costs and benefits, reducing costs, harmonizing rules, and 
promoting flexibility.

[[Page 81279]]

    The Office of Management and Budget has designated this rule a 
``significant regulatory action'' as defined under section 3(f)(1) of 
Executive Order 12866, as amended by Executive Order 14094. 
Accordingly, the Office of Management and Budget has reviewed this 
rule.
1. Effects Under a Without-IFR Baseline
    The primary effect of the final rule, as compared to a without-IFR 
baseline,\446\ is to reduce incentives for irregular migration and 
illegal smuggling activity. As a result, the primary effects of this 
rule will be felt by noncitizens outside of the United States. In 
addition, for those who are present in the United States and described 
in the Proclamation, the rule will likely decrease the number of asylum 
grants and likely reduce the amount of time that noncitizens who are 
determined to be ineligible for asylum and who are determined to lack a 
reasonable probability of establishing eligibility for protection from 
persecution or torture would remain in the United States. Noncitizens, 
however, can avoid the limitation on asylum eligibility under this rule 
if they meet an exception to the rule's limitation or to the 
Proclamation, including by presenting at a POE pursuant to a pre-
scheduled time and place or by showing exceptionally compelling 
circumstances. Moreover, noncitizens who in credible fear screenings 
establish a reasonable probability of persecution or torture would 
still be able to seek statutory withholding of removal or CAT 
protection in proceedings before IJs.
---------------------------------------------------------------------------

    \446\ The benefits and costs of a regulation under Executive 
Order 12866 are generally measured against a no-action baseline: an 
analytically reasonable forecast of the way the world would look 
absent the regulatory action being assessed, including any expected 
changes to current conditions over time. See OMB Circular No. A-4 11 
(Nov. 9, 2023), https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf. For purposes of this analysis, the Departments 
use the without-IFR baseline as the primary baseline, and a with-IFR 
baseline as a secondary baseline. The primary baseline also serves 
as the baseline for the significance determination under section 
3(f)(1) of Executive Order 12866.
---------------------------------------------------------------------------

    The benefits of the rule are expected to include reductions in 
strains on limited Federal Government immigration processing and 
enforcement resources; preservation of the Departments' continued 
ability to safely, humanely, and effectively enforce and administer the 
immigration laws; and a reduction in the role of exploitative TCOs and 
smugglers. Some of these benefits accrue to noncitizens whose ability 
to receive timely decisions on their claims might otherwise be hampered 
by the severe strain that further surges in irregular migration would 
impose on the Departments.
    The direct costs of the rule are borne by noncitizens and the 
Departments. To the extent that any noncitizens are denied or do not 
seek asylum by virtue of the rule but would have received asylum in the 
absence of this rule, such an outcome would entail not only the loss of 
asylum but also its attendant benefits, although such persons may be 
granted statutory withholding of removal and withholding or deferral of 
removal under the CAT. Unlike asylees, noncitizens granted these more 
limited forms of protection do not have a path to citizenship and 
cannot petition for certain family members to join them in the United 
States. Such noncitizens may also be required to apply for employment 
authorization more frequently than an asylee would. As discussed in 
this preamble, the rule's manifestation of fear and reasonable 
probability standards may also engender a risk that some noncitizens 
with meritorious claims may not be referred for credible fear 
interviews or to removal proceedings to seek asylum and protection. In 
these cases, there would likely be costs to noncitizens that result 
from their removal.
    The rule may also require additional time for AOs and IJs, during 
credible fear screenings and reviews, respectively, to inquire into the 
applicability of the rule and the noncitizen's fear claim. Similarly, 
where its provisions apply to a given case, applying the rule will 
require additional time during asylum adjudications before USCIS and 
before IJs during section 240 removal proceedings. On the other hand, 
in the absence of this rule's provisions, AOs and IJs would have to 
make other inquiries into potential fear claims under steady-state 
regulations and into asylum eligibility under the Circumvention of 
Lawful Pathways rule. In addition, as discussed throughout this 
preamble, the rule is expected to result in significantly reduced 
irregular migration and to filter out a greater portion of cases that 
are unlikely to ultimately be successful on the merits. Accordingly, 
the Departments expect the additional time spent by AOs and IJs on 
implementation of the rule to be mitigated by a comparatively smaller 
number of credible fear cases and full adjudications on the merits than 
AOs and IJs would otherwise have been required to handle in the absence 
of the rule.
    Other entities may also incur some indirect, downstream costs as a 
result of the rule. The effects should be considered relative to the 
baseline condition that would exist in the absence of this rule, which 
as noted above is the continued application of the Circumvention of 
Lawful Pathways rule. As compared to the baseline condition, this rule 
is expected to reduce irregular migration. DHS has recently described 
the impact of noncitizens on the U.S. labor market. See, e.g., 89 FR 
67459, 67486-88.
2. Effects Under a With-IFR Baseline
    The only expected effects of this rule relative to a with-IFR 
baseline would involve the changes to the thresholds discussed above. 
As explained in Section II.C.1 of this preamble, the amendments 
marginally reduce the probability that the suspension and limitation on 
entry will be discontinued prematurely or remain discontinued during 
periods in which high levels of migration place significant strain on 
the Departments' resources and capabilities. The amendments do so by 
(1) requiring the 7-consecutive-calendar-day average below 1,500 
encounters to persist for 28 consecutive calendar days before the 14-
day waiting period is triggered, and by (2) including encounters of UCs 
from non-contiguous countries when calculating encounters for the 
purpose of the thresholds under sections 2(a) and 2(b) of the 
Proclamation.
    It is challenging to predict with certainty the effects of the 
Departments' decision to adopt these changes. Although in some 
circumstances the Departments' decision could reduce the likelihood 
that the rule's limitation on asylum eligibility and changes to the 
credible fear process would be discontinued or remain discontinued, the 
Departments have not assigned a specific probability to such 
circumstances occurring. Encounter levels are driven by a variety of 
factors, many of which are external to the United States and difficult 
to predict, such as family and community networks, labor markets, 
environmental and security-related push factors, and rapidly evolving 
criminal smuggling networks. See 88 FR at 31327-28 & n.59.
    If the changes to the thresholds were to result in this rule's 
emergency provisions remaining activated for a longer period of time 
than they would have been under the IFR, those changes would amplify 
this rule's effects relative to a with-IFR baseline. In such a 
circumstance, the same analysis presented with respect to the without-
IFR baseline above would apply here as well, but the marginal impacts 
of this final rule (compared to the with-IFR baseline) are expected to 
be smaller than the marginal impacts of the IFR (compared to the 
without-IFR baseline). For instance, the primary effects of this

[[Page 81280]]

rule would still be felt by noncitizens outside of the United States. 
And for those who are present in the United States, the rule would 
still likely decrease the number of asylum grants and likely reduce the 
amount of time that noncitizens who are ineligible for asylum and who 
lack a reasonable probability of persecution or torture would remain in 
the United States. The changes made in this rule may decrease the 
administrative burdens associated with discontinuing and continuing or 
reactivating the measures contained in the rule.
3. Discontinuation Analysis Under a Without-IFR Baseline
    For purposes of this assessment, the Departments have also analyzed 
the potential effects of the 7-consecutive-calendar-day average of 
encounters falling below 1,500. If that average remains below 1,500 
encounters for 28 consecutive calendar days, and the 2,500-encounter 
threshold is not reached during the 14-day waiting period, the rule's 
provisions will be discontinued 14 days after the Secretary's 
determination and remain so until one day after the Secretary 
determines that the 7-consecutive-calendar-day average of encounters 
has reached 2,500.
    The effects of discontinuation would depend on a wide range of 
factors that are difficult to predict and may involve factors arising 
from events occurring outside the United States, or entirely outside 
the Departments' control. Some such factors would include:
    <bullet> Whether the Circumvention of Lawful Pathways rule would 
apply at the time of the discontinuation; \447\
---------------------------------------------------------------------------

    \447\ In Section IV.B of this preamble, the Departments seek 
comment on whether to extend the applicability of that rule to 
certain noncitizens who enter the United States after May 11, 2025.
---------------------------------------------------------------------------

    <bullet> Whether metrics such as fear-claim rates and screen-in 
rates during the discontinuation period would resemble rates previously 
observed under the Circumvention of Lawful Pathways rule; \448\
---------------------------------------------------------------------------

    \448\ As noted in Section II.A.2 of this preamble, under this 
rule, from June 5, 2024, through August 31, 2024, 27 percent of 
those encounters between POEs at the SWB and processed for expedited 
removal claimed fear, compared to a 57 percent fear-claim rate under 
the Circumvention of Lawful Pathways rule and a 37 percent fear-
claim rate during the pre-pandemic period. OHSS analysis of July 
2024 Persist Dataset and data downloaded from UIP on September 3, 
2024 (Summary Statistics tab). Similarly, with this rule's 
``reasonable probability'' standard in place, the comprehensive 
screen-in rate for those USBP encounters manifesting fear has 
decreased to approximately 57 percent, compared to approximately 62 
percent for those screened under the Circumvention of Lawful Pathway 
rule with its lower ``reasonable possibility'' standard in place, 
and 83 percent in the pre-pandemic period. OHSS analysis of July 
2024 Persist Dataset and data downloaded from UIP on September 3, 
2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    <bullet> Whether, in the absence of a discontinuation, such rates 
would continue to resemble those observed from June 5, 2024, through 
August 31, 2024;
    <bullet> Encounter levels and related demographics during the 
discontinuation period, which, in turn, are influenced by factors such 
as family and community networks, economic conditions, environmental 
and security-related push factors, responses to policy changes such as 
the discontinuation itself, and rapidly evolving criminal smuggling 
networks;
    <bullet> Available processing resources;
    <bullet> Tactical changes by smugglers and migrants;
    <bullet> Misinformation, disinformation, or malinformation 
generated by smugglers and circulating online among migrant 
communities; and
    <bullet> Whether and how soon the 2,500-encounter threshold for 
continuing or reactivating the rule's provisions would be reached.
    Assuming the Circumvention of Lawful Pathways rule remains in 
effect at the time of a discontinuation, in the immediate aftermath of 
a discontinuation, the Departments would begin the processing of 
noncitizens under the Circumvention of Lawful Pathways rule's 
provisions: the Departments would apply the rebuttable presumption of 
asylum ineligibility during covered credible fear screenings and 
section 240 removal proceedings and employ a ``reasonable possibility 
of persecution or torture'' standard to screen for potential 
eligibility for statutory withholding of removal and CAT protection for 
those noncitizens who are unable to establish a significant possibility 
that the rebuttable presumption does not apply or that they can rebut 
it. Although it is impossible to reliably address these uncertainties 
quantitatively, the Departments offer a number of observations about 
the potential outcomes of a discontinuation while the Circumvention of 
Lawful Pathways rule applies.
    Although the Circumvention of Lawful Pathways rule meaningfully 
improved the Departments' capacity to deliver timely decisions and 
consequences and is a critical tool for the Departments to incentivize 
the use of lawful, safe, and orderly pathways, see Section IV of this 
preamble, it did not yield efficiency benefits comparable to those 
delivered by the IFR.\449\ Under the Circumvention of Lawful Pathways 
rule, the average processing time for USBP encounters, from encounter 
to removal, was 44 days--down from 75 days in the pre-pandemic period; 
under the IFR, the average processing time decreased more than 25 
percent as compared to the time period under the Circumvention of 
Lawful Pathways rule, to 32 days.\450\ A comparison of the number of 
expedited removals processed per day is also instructive. Under the 
Circumvention of Lawful Pathways rule, USBP referred, on average, about 
860 people for expedited removal per day,\451\ while under the IFR, 
USBP referrals for expedited removal increased approximately 28 
percent, to an average of nearly 1,100 persons per day.\452\
---------------------------------------------------------------------------

    \449\ As discussed elsewhere in this preamble and in the 
Circumvention of Lawful Pathways rule, high encounter rates at the 
southern border, combined with inadequate resources and tools to 
keep pace, have limited DHS's ability to impose timely consequences 
through expedited removal, the main consequence available at the 
border under title 8 authorities. See 89 FR at 48714. This mismatch 
between the resources made available by Congress and large numbers 
of encounters creates significant stress on the border and 
immigration systems that forces DHS to rely on slower processing 
pathways--limiting the Departments' ability to more quickly deliver 
consequences to individuals who do not have a legal basis to remain 
in the United States.
    \450\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
    \451\ OHSS analysis of July 2024 Persist Dataset (Imm Post 
Pandemic ERCF tab).
    \452\ OHSS analysis of data downloaded from UIP on September 3, 
2024 (IFR ERCF tab).
---------------------------------------------------------------------------

    In particular, the elimination of lengthy and suggestive advisals 
and the shift to a manifestation standard under the Securing the Border 
rule contributes to a substantially lower proportion of noncitizens 
encountered between POEs at the SWB being referred for credible fear 
interviews. Fear-claim rates dropped from 57 percent under the 
Circumvention of Lawful Pathways rule to a 27 percent fear-claim rate 
under the IFR.\453\
---------------------------------------------------------------------------

    \453\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (Summary Statistics tab).
---------------------------------------------------------------------------

    The reduction in fear-claim rates allows USCIS to focus its 
resources more effectively and efficiently on those noncitizens who may 
have a fear of return to their native country or their country of 
removal or indicate an intention to seek fear-based relief or 
protection and enables DHS to more swiftly process and remove those who 
do not manifest a fear or express an intent to apply for asylum.\454\ 
Congress has not provided the resources necessary to timely and 
effectively process and interview all those who

[[Page 81281]]

invoke credible fear procedures through the expedited removal process 
at the southern border, including under the Circumvention of Lawful 
Pathways rule. See 89 FR at 48732. When the Departments' ability to 
timely process, detain, and remove, as appropriate, noncitizens who do 
not establish a legal basis to remain in the United States is limited, 
it exacerbates the risk of severe overcrowding in USBP facilities and 
POEs and creates a situation in which large numbers of migrants--only a 
small proportion of whom are likely to be granted asylum--are not able 
to be expeditiously removed but are instead referred to backlogged 
immigration courts. Id. This situation is self-reinforcing: the 
expectation of a lengthy stay in the United States and the lack of 
timely consequences for irregular migration encourage more migrants to 
make the dangerous journey to the southern border to invoke credible 
fear procedures and take their chances on being allowed to remain in 
the country for a lengthy period. Id.
---------------------------------------------------------------------------

    \454\ Id. (showing both reduced rates of fear claims/fear 
manifestation and reduced time from encounter to negative fear 
removals).
---------------------------------------------------------------------------

    The Securing the Border rule expressly guards against the resource 
strains posed by very high levels of encounters; the day after the 
Secretary makes a factual determination that there have been 2,500 
daily encounters, the Departments will again implement the Securing the 
Border rule, thereby reestablishing stronger incentives against 
irregular migration. But as discussed in Section II.C.1 of this 
preamble, the Departments may not be able to fully realize the benefits 
of the Securing the Border rule in the first few days of reactivation, 
because encounters made prior to reactivation must still be processed 
under the Circumvention of Lawful Pathways rule. Unnecessary 
discontinuations and reactivations also impose unnecessary costs on the 
Departments. And frequent discontinuations--which the changes made in 
this rule seek to avoid--risk signaling to migrants that emergency 
border circumstances are so temporal and episodic that the rule's 
measures can be avoided entirely by simply waiting in Mexico for a 
short period of time--which could lead to a cycle of surges that 
significantly disrupt border processing.
    Finally, there are of course other differences between the two 
frameworks as well. For instance, the Circumvention of Lawful Pathways 
rule affects the asylum eligibility of a smaller number of migrants, 
because that rule generally does not affect the asylum eligibility of 
Mexican nationals. For such persons, the application of the 
Circumvention of Lawful Pathways rule instead of the Securing the 
Border rule could result in greater access to asylum and its attendant 
benefits, and even those determined to be subject to the Circumvention 
of Lawful Pathways rule's rebuttable presumption of asylum 
ineligibility will be screened for statutory withholding of removal and 
CAT protection at the ``reasonable possibility'' standard, rather than 
the ``reasonable probability'' standard applied during statutory 
withholding of removal and CAT protection screenings under the Securing 
the Border rule.
4. Effects of Expansion and Extension of Circumvention of Lawful 
Pathways Rebuttable Presumption
    In Section IV of this preamble, the Departments also propose to 
extend and expand the applicability of the Circumvention of Lawful 
Pathways rebuttable presumption. First, in Section IV.A of this 
preamble, the Departments request comment on whether to expand the 
rebuttable presumption (which currently applies to noncitizens who 
``enter[ ] the United States from Mexico at the southwest land border 
or adjacent coastal borders'' after traveling through certain third 
countries) such that the rebuttable presumption would also apply to 
noncitizens who enter across southern coastal borders by sea and 
irrespective of whether such noncitizens traveled through a third 
country before entry across the southern costal borders. This would 
expand the geographic reach of the rebuttable presumption. Second, in 
Section IV.B of this preamble, the Departments request comment on 
whether to indefinitely extend the entry period (currently scheduled to 
end on May 12, 2025) so that the rebuttable presumption will apply to 
noncitizens who enter the United States without documents sufficient 
for lawful admission any time on or after May 11, 2023. See 8 CFR 
208.33(a)(1)(i), 1208.33(a)(1)(i).
    The potential effects of such an expansion and extension are 
described in Section IV of this preamble. The expansion would (1) make 
clear to noncitizens intending to migrate to the United States that 
timely consequences will result if they resort to irregular migration 
no matter where along the southern border they cross; (2) deter 
smugglers and noncitizens from using dangerous maritime migration to 
avoid the rebuttable presumption of asylum ineligibility if the 
noncitizen did not travel through a country other than the noncitizen's 
country of citizenship, nationality, or, if stateless, last habitual 
residence, that is a party to the 1951 United Nations Convention 
relating to the Status of Refugees or the 1967 Protocol relating to the 
Status of Refugees, see 8 CFR 208.33(a)(1)(iii), 1208.33(a)(1)(iii); 
and (3) ensure consistency in implementation between the Circumvention 
of Lawful Pathways rule's rebuttable presumption and the provisions in 
the Securing the Border rule.
    The proposed extension of the Circumvention of Lawful Pathways 
rule's entry period would better preserve the Departments' ability to 
deliver timely decisions and consequences. Even with the Proclamation 
and Securing the Border rule in place, the absence of the Circumvention 
of Lawful Pathways rebuttable presumption after May 11, 2025 would mean 
that when the following three conditions are satisfied--(1) the 
threshold for discontinuing the Securing the Border rule's provisions 
has been met, (2) encounters between POEs begin to exceed 1,500 
encounters, and (3) the threshold for continuing or reactivating the 
measures in this rule is not yet met--without the ability to apply the 
Circumvention of Lawful Pathways rebuttable presumption, the 
Departments' ability to deliver timely decisions and consequences would 
likely be impaired. For example, assuming similar processing capacity 
as during the immediate post-pandemic period and the same mix of 
encounter demographics as observed during the first two months of 
enforcement under the IFR, OHSS estimates that at 1,500 encounters 
(including all UCs), approximately 58 percent of single adult and 
family unit encounters would be quickly repatriated (including 
voluntary returns, reinstatements, and expedited removals) with the 
rebuttable presumption in effect, versus 46 percent in the absence of 
the rebuttable presumption.\455\ At 2,500 encounters per day, OHSS 
estimates that 41 percent of single adult and family unit encounters 
would be quickly repatriated with the rebuttable presumption in effect, 
versus 34 percent in the absence of the rebuttable presumption.\456\ 
These differences are driven by differences in fear-claim and screen-in 
rates.\457\
---------------------------------------------------------------------------

    \455\ OHSS analysis of July 2024 Persist Dataset and data 
downloaded from UIP on September 3, 2024 (CLP v pre-CLP Proj 
Outcomes tab).
    \456\ Id.
    \457\ Id.
---------------------------------------------------------------------------

    The primary effect of the Departments' proposed expansion and 
extension of the Circumvention of Lawful Pathways rebuttable 
presumption would be to reduce incentives for irregular migration and 
illegal smuggling activity during periods when the threshold for 
discontinuing

[[Page 81282]]

the measures in the Securing the Border rule has been met or where that 
rule is otherwise not in effect due to an adverse litigation outcome 
against its asylum limitation or any aspect of that rule. The primary 
effects of such an expansion and extension would be felt by noncitizens 
outside of the United States. In addition, for those who are present in 
the United States and subject to the rebuttable presumption, such an 
action would likely decrease the number of asylum grants and likely 
reduce the amount of time that noncitizens who are determined to be 
ineligible for asylum and who are determined to lack a reasonable 
possibility of establishing eligibility for protection from persecution 
or torture would remain in the United States. Noncitizens, however, can 
avoid the rebuttable presumption if they meet certain exceptions, 
including by presenting at a POE pursuant to a pre-scheduled time and 
place or by showing exceptionally compelling circumstances. Moreover, 
noncitizens who in credible fear screenings establish a reasonable 
possibility of persecution or torture would still be able to seek 
statutory withholding of removal or CAT protection in proceedings 
before IJs.
    The benefits of such an expansion or extension would include 
reductions in strains on limited Federal Government immigration 
processing and enforcement resources; preservation of the Departments' 
continued ability to safely, humanely, and effectively enforce and 
administer the immigration laws; and a reduction in the role of 
exploitative TCOs and smugglers. Some of these benefits accrue to 
noncitizens whose ability to receive timely decisions on their claims 
might otherwise be hampered by the strain that further surges in 
irregular migration would impose on the Departments.
    The direct costs of the expansion or extension would be borne by 
noncitizens and the Departments. To the extent that any noncitizens are 
made ineligible for asylum by virtue of the rebuttable presumption but 
would otherwise have received asylum, such an outcome would entail the 
denial of asylum and its attendant benefits, although such persons may 
continue to be eligible for statutory withholding of removal and 
withholding or deferral of removal under the CAT. Unlike asylees, 
noncitizens granted these more limited forms of protection do not have 
a path to citizenship and cannot petition for certain family members to 
join them in the United States--although such noncitizens may in the 
end be granted asylum despite the rebuttable presumption by operation 
of the family unity provision that applies in section 240 removal 
proceedings. Such noncitizens may also be required to apply for 
employment authorization more frequently than an asylee would.
    The expansion and extension of the rebuttable presumption may also 
require additional time for AOs and IJs, during credible fear 
screenings and reviews, respectively, to inquire into the applicability 
of the rebuttable presumption to the noncitizen's fear claim. 
Similarly, where its provisions apply to a given case, applying the 
rebuttable presumption would require additional time during asylum 
adjudications before USCIS and before IJs during section 240 removal 
proceedings. However, such an expansion or extension may reduce 
perceived incentives for irregular migration. Accordingly, the 
Departments expect the additional time spent by AOs and IJs on 
implementation of the rebuttable presumption to be mitigated by a 
comparatively smaller number of credible fear cases than AOs and IJs 
would otherwise have been required to handle in the absence of the 
rebuttable presumption.
    Other entities may also incur some indirect, downstream costs as a 
result of an expansion or extension. The nature and scale of such 
effects will vary by entity and should be considered relative to the 
baseline condition that would exist in the absence of such an action, 
which would be the application of steady-state regulations that have 
not been the primary mode of the processing of noncitizens at the 
southern border since before the Title 42 public health Order. As 
compared to the baseline condition, an expansion and extension would be 
expected to reduce irregular migration. DHS has recently described the 
impact of noncitizens on the U.S. labor market. See 89 FR at 67486-88.

C. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (``RFA''), ``[w]henever an 
agency is required by section 553 of [the APA], or any other law, to 
publish general notice of proposed rulemaking for any proposed rule, . 
. . the agency shall prepare and make available for public comment an 
initial regulatory flexibility analysis.'' 5 U.S.C. 603(a); see also 
id. 604(a) (final regulatory flexibility analysis). Such analysis 
requires agencies to consider the direct impact of the proposed rule on 
``small entities.'' Id. 603(a); see also id. 604(a) (final regulatory 
flexibility analysis). This rule does not directly regulate small 
entities and is not expected to have a direct effect on small entities. 
It does not mandate any actions or requirements for small entities. 
Rather, this rule regulates individuals, and individuals are not 
defined as ``small entities'' by the RFA. See 5 U.S.C. 601(6). Based on 
the evidence presented in this analysis and throughout this preamble, 
the Departments certify that this final rule would not have a 
significant economic impact on a substantial number of small entities. 
And for the same reason, the Departments certify that the Circumvention 
of Lawful Pathways rule, if extended or expanded, would not have a 
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (``UMRA'') is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and Tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may directly result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
Tribal governments, in the aggregate, or by the private sector. 2 
U.S.C. 1532(a). The inflation-adjusted value of $100 million in 1995 is 
approximately $200 million in 2023 based on the Consumer Price Index 
for All Urban Consumers (CPI-U).\458\
---------------------------------------------------------------------------

    \458\ See BLS, Historical Consumer Price Index for All Urban 
Consumers (CPI-U): U.S. city average, all items, by month, https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202406.pdf (last visited Sept. 21, 2024). Steps in calculation of 
inflation: (1) Calculate the average monthly CPI-U for the reference 
year (1995) and the current year (2023); (2) Subtract reference year 
CPI-U from current year CPI-U; (3) Divide the difference of the 
reference year CPI-U and current year CPI-U by the reference year 
CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2023 - 
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)] 
x 100 = [(304.702 - 152.383) / 152.383] = (152.319/152.383) = 
0.99958001 x 100 = 99.96 percent = 100 percent (rounded). 
Calculation of inflation-adjusted value: $100 million in 1995 
dollars x 2.00 = $200 million in 2023 dollars.
---------------------------------------------------------------------------

    The term ``Federal mandate'' means a Federal intergovernmental 
mandate or a Federal private sector mandate. See 2 U.S.C. 1502(1), 
658(6). A ``Federal intergovernmental mandate,'' in turn, is a 
provision that would impose an enforceable duty upon State, local, or 
Tribal governments (except as a condition of Federal assistance or a 
duty arising from participation in a voluntary Federal program). See 
id. 658(5). And the term ``Federal private sector mandate'' refers to a 
provision that would impose an enforceable duty upon the private sector 
(except as a condition

[[Page 81283]]

of Federal assistance or a duty arising from participation in a 
voluntary Federal program). See id. 658(7).
    This rule does not contain a Federal mandate because it does not 
impose any enforceable duty upon any other level of government or 
private sector entity. Any downstream effects on such entities would 
arise solely due to the entity's voluntary choices, and the voluntary 
choices of others, and would not be a consequence of an enforceable 
duty imposed by this proposed rule. Similarly, any costs or transfer 
effects on State and local governments would not result from a Federal 
mandate as that term is defined under UMRA. The requirements of title 
II of UMRA, therefore, do not apply, and the Departments have not 
prepared a statement under UMRA.

E. Congressional Review Act

    The Administrator of the Office of Information and Regulatory 
Affairs has determined that this rule does not meet the criteria set 
forth in 5 U.S.C. 804(2). When compared to the with-IFR baseline, the 
changes made in this final rule \459\ have not resulted in, and are not 
likely to result in, an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic and export markets. The rule will be submitted to Congress and 
the Government Accountability Office consistent with the Congressional 
Review Act's requirements no later than its effective date.
---------------------------------------------------------------------------

    \459\ The Administrator of the Office of Information and 
Regulatory Affairs has measured the effects of this final rule with 
a with-IFR baseline. See 5 U.S.C. 804(2); compare Section V.B of 
this preamble.
---------------------------------------------------------------------------

F. Executive Order 13132 (Federalism)

    This rule would 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, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in section 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

H. Family Assessment

    The Departments have reviewed this rule in line with the 
requirements of section 654 of the Treasury and General Government 
Appropriations Act, 1999, enacted as part of the Omnibus Consolidated 
and Emergency Supplemental Appropriations Act, 1999. The Departments 
have reviewed the criteria specified in section 654(c)(1), by 
evaluating whether this regulatory action (1) impacts the stability or 
safety of the family, particularly in terms of marital commitment; (2) 
impacts the authority of parents in the education, nurture, and 
supervision of their children; (3) helps the family perform its 
functions; (4) affects disposable income or poverty of families and 
children; (5) only financially impacts families, if at all, to the 
extent such impacts are justified; (6) may be carried out by State or 
local governments or by the family; or (7) establishes a policy 
concerning the relationship between the behavior and personal 
responsibility of youth and the norms of society. If the agency 
determines a regulation may negatively affect family well-being, then 
the agency must provide an adequate rationale for its implementation.
    The Departments have determined that the implementation of this 
rule will not impose a negative impact on family well-being or the 
autonomy or integrity of the family as an institution.

I. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This rule would not have Tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial direct effect on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.

J. National Environmental Policy Act

    DHS and its components analyze actions to determine whether the 
National Environmental Policy Act of 1969 (``NEPA''), 42 U.S.C. 4321 et 
seq., applies to these actions and, if so, what level of NEPA review is 
required. 42 U.S.C. 4336. DHS's Directive 023-01, Revision 01 and 
Instruction Manual 023-01-001-01, Revision 01 (``Instruction Manual 
023-01-001-01'') establish the procedures that DHS uses to comply with 
NEPA and the Council on Environmental Quality (``CEQ'') regulations for 
implementing NEPA, 40 CFR parts 1500 through 1508.
    Federal agencies may establish categorical exclusions for 
categories of actions they determine normally do not significantly 
affect the quality of the human environment and, therefore, do not 
require the preparation of an Environmental Assessment or Environmental 
Impact Statement. 42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3(c)(8), 
1508.1(e). DHS has established categorical exclusions, which are listed 
in Appendix A of its Instruction Manual 023-01-001-01. Under DHS's NEPA 
implementing procedures, for an action to be categorically excluded, it 
must satisfy each of the following three conditions: (1) the entire 
action clearly fits within one or more of the categorical exclusions; 
(2) the action is not a piece of a larger action; and (3) no 
extraordinary circumstances exist that create the potential for a 
significant environmental effect.
    The rule adopts as final the following three changes to the process 
for those seeking asylum, statutory withholding of removal, or CAT 
protection during emergency border circumstances:
    <bullet> For those who enter the United States across the southern 
border during emergency border circumstances and are not described in 
section 3(b) of the June 3 Proclamation, rather than asking specific 
questions of every noncitizen encountered and processed for expedited 
removal to elicit whether the noncitizen may have a fear of persecution 
or an intent to apply for asylum, DHS will continue to provide general 
notice regarding the processes for seeking asylum, statutory 
withholding of removal, and CAT protection, and will only refer a 
noncitizen for credible fear screenings if the noncitizen manifests a 
fear of return, or expresses an intention to apply for asylum or 
protection, expresses a fear of persecution or torture, or expresses a 
fear of return to their country or the country of removal.
    <bullet> During emergency border circumstances, those who enter the 
United States across the southern border and who are not described in 
paragraph 3(b) of the June 3 Proclamation will continue to be 
ineligible for asylum unless they demonstrate by a preponderance of the 
evidence that exceptionally compelling circumstances exist, including 
if the noncitizen demonstrates that they or a member of

[[Page 81284]]

their family as described in 8 CFR 208.30(c) with whom they are 
traveling: (1) faced an acute medical emergency; (2) faced an imminent 
and extreme threat to life or safety, such as an imminent threat of 
rape, kidnapping, torture, or murder; or (3) satisfied the definition 
of ``victim of a severe form of trafficking in persons'' provided in 8 
CFR 214.201.
    <bullet> The limitation on asylum eligibility will continue to be 
applied during credible fear interviews and reviews, and those who 
enter across the southern border during emergency border circumstances 
and who are not described in section 3(b) of the June 3 Proclamation 
and do not establish exceptionally compelling circumstances under the 
credible fear screening standard will receive a negative credible fear 
determination with respect to asylum and will thereafter be screened 
for a reasonable probability of persecution because of a protected 
ground or torture, a higher standard than that applied to noncitizens 
in a similar posture under the Circumvention of Lawful Pathways rule.
    This rule also makes a small number of changes consistent with the 
overall purpose and structure of the IFR, as discussed in Section II.C 
of this preamble, and requests comment on the potential expansion and 
extension of the applicability of the Circumvention of Lawful Pathways 
rebuttable presumption.
    Given the nature of the final rule with request for comment, DHS 
has determined that it is categorically excluded under its NEPA 
implementing procedures, as it satisfies all three relevant conditions. 
First, the final rule with request for comment clearly fits within 
categorical exclusions A3(a) and A3(d) of DHS's Instruction Manual 023-
01-001-01, Appendix A, for the promulgation of rules of a ``strictly 
administrative or procedural nature'' and rules that ``interpret or 
amend an existing regulation without changing its environmental 
effect,'' respectively. The IFR changed certain procedures relating to 
the processing of certain noncitizens during emergency border 
circumstances, and does not result in a change in environmental effect. 
This final rule makes only modest changes to the IFR and seeks comment 
on the expansion and extension of the Circumvention of Lawful Pathways 
rebuttable presumption. Second, this final rule with request for 
comment is a standalone rule and is not part of any larger action.\460\ 
Third, in accordance with its NEPA implementing procedures, DHS has 
determined no extraordinary circumstances exist that would cause a 
significant environmental impact. Therefore, this final rule is 
categorically excluded, and no further NEPA analysis or documentation 
is required. DOJ is adopting the DHS determination that this final rule 
is categorically excluded under A3(a) and A3(d) of DHS's Instruction 
Manual 023-01-001-01, Appendix A, because the final rule's limitation 
on asylum eligibility and the ``reasonable probability'' standard will 
be applied by EOIR in substantially the same manner as it will be 
applied by DHS and DOJ is not aware of any extraordinary circumstances 
that would require the preparation of an environmental assessment or 
environmental impact statement. See 40 CFR 1506.3(d) (setting forth the 
ability of an agency to adopt another agency's categorical exclusion 
determination).
---------------------------------------------------------------------------

    \460\ See Instruction Manual 023-01-001-01, at V-5.
---------------------------------------------------------------------------

K. Paperwork Reduction Act

    This rule does not adopt 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, 109 Stat. 163, 44 
U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

List of Subjects

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

Department of Homeland Security

    Accordingly, the interim final rule amending 8 CFR parts 208 and 
235, which was published at 89 FR 48710 on June 7, 2024, is adopted as 
final with the following changes:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
1. The authority citation for part 208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
2. Amend Sec.  208.13 by revising paragraph (g) and adding paragraph 
(h) to read as follows:


Sec.  208.13   Establishing asylum eligibility.

* * * * *
    (g) Entry during emergency border circumstances. For an alien who 
entered the United States across the southern border (as that term is 
described in section 4(d) of the Presidential Proclamation of June 3, 
2024, as defined in paragraph (h) of this section) between the dates 
described in section 1 and section 2(a) of such Proclamation (or the 
revocation of such Proclamation, whichever is earlier), or between the 
dates described in section 2(b) and section 2(a) of such Proclamation 
(or the revocation of such Proclamation, whichever is earlier), refer 
to the provisions on asylum eligibility described in Sec.  208.35.
    (h) References to the Presidential Proclamation of June 3, 2024. 
For purposes of paragraph (g) of this section and this chapter, the 
Presidential Proclamation of June 3, 2024, refers to Proclamation 10773 
of June 3, 2024, as amended by the Presidential Proclamation of 
September 27, 2024. The Department intends that in the event the 
Presidential Proclamation of September 27, 2024, or the portions of 
this chapter referring to it are rendered inoperative by court order, 
this chapter shall continue to operate as if the references to that 
Proclamation have been stricken.


Sec.  208.33   [Amended]

0
3. Amend Sec.  208.33 by removing the reference to ``Sec.  214.11(a)'' 
in paragraph (a)(3)(i)(C) and adding in its place ``Sec.  214.201.

0
4. Amend Sec.  208.35 by:
0
a. Removing the reference to ``Sec.  214.11'' in paragraph (a)(2)(i)(C) 
and adding in its place ``Sec.  214.201'';
0
b. Revising paragraph (b)(2)(i); and
0
c. Removing the words ``Presidential Proclamation of June 3, 2024, 
Securing the Border,'' and ``Proclamation'' wherever they appear and 
adding, in their place, the words ``Presidential Proclamation of June 
3, 2024, as defined in 8 CFR 208.13(h),''.
    The revision reads as follows:


Sec.  208.35   Limitation on asylum eligibility and credible fear 
procedures for those who enter the United States during emergency 
border circumstances.

* * * * *
    (b) * * *
    (2) * * *

[[Page 81285]]

    (i) In cases in which the asylum officer enters a negative credible 
fear determination under paragraph (b)(1)(i) or (b)(3) of this section, 
the asylum officer will assess the alien under the procedures set forth 
in Sec.  208.33(b)(2)(i) except that the asylum officer will apply a 
reasonable probability standard. For purposes of this section, 
reasonable probability means substantially more than a reasonable 
possibility, but somewhat less than more likely than not.
* * * * *

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
5. The authority citation for part 235 continues to read as follows:

    Authority:  8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant 
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 
1225, 1226, 1228, 1365a note, 1365b, 1379, 1731-32; 48 U.S.C. 1806, 
1807, and 1808 and 48 U.S.C. 1806 notes (title VII, Pub. L. 110-229, 
122 Stat. 754); 8 U.S.C. 1185 note (sec. 7209, Pub. L. 108-458, 118 
Stat. 3638, and Pub. L. 112-54, 125 Stat. 550).


Sec.  235.15   [Amended]

0
6. Amend Sec.  235.15 by removing the words ``Presidential Proclamation 
of June 3, 2024, Securing the Border,'' wherever they appear and 
adding, in their place, the words ``Presidential Proclamation of June 
3, 2024, as defined in 8 CFR 208.13(h),''.

Department of Justice

    Accordingly, the interim final rule amending 8 CFR part 1208, which 
was published at 89 FR 48710, on June 7, 2024, is adopted as final with 
the following changes:

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
7. The authority citation for part 1208 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; Pub. L. 115-218.


0
8. Amend Sec.  1208.13 by revising paragraph (g) and adding paragraph 
(h) to read as follows:


Sec.  1208.13   Establishing asylum eligibility.

* * * * *
    (g) Entry during emergency border circumstances. For a noncitizen 
who entered the United States across the southern border (as that term 
is described in section 4(d) of the Presidential Proclamation of June 
3, 2024, as defined in paragraph (h) of this section) between the dates 
described in section 1 and section 2(a) of such Proclamation (or the 
revocation of such Proclamation, whichever is earlier), or between the 
dates described in section 2(b) and section 2(a) of such Proclamation 
(or the revocation of such Proclamation, whichever is earlier), refer 
to the provisions on asylum eligibility described in Sec.  1208.35.
    (h) References to the Presidential Proclamation of June 3, 2024. 
For purposes of paragraph (g) of this section and Sec.  1208.35, the 
Presidential Proclamation of June 3, 2024, refers to Proclamation 10773 
of June 3, 2024, as amended by the Presidential Proclamation of 
September 27, 2024. The Department intends that in the event the 
Presidential Proclamation of September 27, 2024, or the portions of 
this chapter referring to it are rendered inoperative by court order, 
this chapter shall continue to operate as if the references to that 
Proclamation have been stricken.


Sec.  1208.33   [Amended]

0
9. Amend Sec.  1208.33 by removing the reference to ``8 CFR 214.11'' in 
paragraph (a)(3)(i)(C) and adding in its place ``8 CFR 214.201''.

0
10. Amend Sec.  1208.35 by:
0
a. Removing the reference to ``Sec.  214.11(a)'' in paragraph 
(a)(2)(i)(C) and adding in its place ``Sec.  214.201'';
0
b. Revising paragraph (b)(2)(iii);
0
c. Removing the words ``An alien'' and adding in their place the words 
``A noncitizen'', wherever they appear;
0
d. Removing the words ``the alien'' and adding in their place the words 
``the noncitizen'', wherever they appear;
0
e. Removing the words ``the alien's'' and adding in their place the 
words ``the noncitizen's'', wherever they appear;
0
f. Removing the words ``an alien'' and adding in their place the words 
``a noncitizen'', wherever they appear;
0
g. Removing the words ``The alien'' and adding in their place the words 
``The noncitizen'', wherever they appear; and
0
h. Removing the words ``Presidential Proclamation of June 3, 2024, 
Securing the Border,'' and ``Proclamation'' wherever they appear and 
adding, in their place, the words ``Presidential Proclamation of June 
3, 2024, as defined in 8 CFR 1208.13(h).
    The revision reads as follows:


Sec.  1208.35   Limitation on asylum eligibility and credible fear 
procedures for those who enter the United States during emergency 
border circumstances.

* * * * *
    (b) * * *
    (2) * * *
    (iii) Where the immigration judge determines that the noncitizen is 
subject to the limitation on asylum eligibility under paragraph (a) of 
this section, the immigration judge shall assess the noncitizen under 
the procedures set forth in Sec.  1208.33(b)(2)(ii) except that the 
immigration judge shall apply a reasonable probability standard. For 
purposes of this section, reasonable probability means substantially 
more than a reasonable possibility, but somewhat less than more likely 
than not.
* * * * *

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
    Dated: September 27, 2024.
Merrick B. Garland,
Attorney General, U.S. Department of Justice.
[FR Doc. 2024-22602 Filed 9-30-24; 1:00 pm]
BILLING CODE 4410-30-P; 9111-97-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>