81156 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

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 


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Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 81157 

1As 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. 

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 


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81158 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

2The 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. 

3There 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-processesmonthly-tables (SWB encounters from FY 2014 

through December 2023). OHSS figures are 

generally rounded throughout this preamble. 

4See 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. 

5EOIR 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-operatingenviroment (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 DHSDetained 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). 

6See 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. 

7As 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. 

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’’). 

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. 

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 ‘‘softsides.’’ 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 inflationadjusted funding requirements (referred 

to as ‘‘Current Services’’).6

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 


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Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 81159 

8The 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. 

9While 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-sweepingmeasures-humanely-manage-border. Therefore, the 

Circumvention of Lawful Pathways rule began to 

apply on May 12, 2023. 

10OHSS 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 postpandemic period, defined as May 12, 2023, through 

June 4, 2024. Id. 

11OHSS analysis of July 2024 Persist Dataset 

(Summary Statistics tab). 

12OHSS analysis data downloaded from UIP on 

September 3, 2024 (Summary Statistics tab). 

13OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

14OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Summary Statistics tab). 

15Throughout this preamble the ‘‘pre-pandemic 

period’’ refers to FY 2014 to FY 2019. 

16OHSS 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 prepandemic period (26 percent during the prepandemic 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). 

17The 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 

Continued 

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. 

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. 

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 postpandemic 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

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 postpandemic 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 


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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. 

18OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Summary Statistics tab). 

19OHSS analysis of July 2024 Persist Dataset 

(Summary Statistics tab). 

20OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

21OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

22From 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). 

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. 

24OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). Data for immediate postpandemic 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 screenedin under the ‘‘reasonable possibility’’ or ‘‘reasonable 

probability’’ standards, as applicable. 

25OHSS 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. 

26OHSS analysis of June 2024 Enforcement 

Lifecycle dataset (Historic ERCF Results tab). Data 

are limited to SWB encounters between POEs. 

27OHSS analysis of July 2024 Persist Dataset 

(Fear Screening—CLP tab, Line 13 divided by Line 

12). Data are limited to SWB encounters between 

POEs. 

28OHSS 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. 

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.’’). 

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

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. 

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 prepandemic 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 


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29OHSS analysis of June 2024 Enforcement 

Lifecycle dataset (Summary Statistics tab). 

30OHSS analysis of July 2024 Persist Dataset 

(Summary Statistics tab). 

31OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Summary Statistics tab). 

32OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

33The 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). 

34OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Summary Statistics tab). 

35OHSS 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). 

38OHSS analysis of data downloaded from UIP 

on September 3, 2024 (IFR Details tab). 

39 Id. 

40 Id. 41OHSS 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 OneTM

Appointments Increased to 1,450 Per Day (June 30, 

2023), https://www.cbp.gov/newsroom/nationalmedia-release/cbp-one-appointments-increased1450-day. 43OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(OFO Encounters tab). 44USCIS, Processes for Cubans, Haitians, 

Nicaraguans, and Venezuelans (last reviewed/ 

updated Aug. 29, 2024), https://www.uscis.gov/ 

CHNV. 

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. 

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 postpandemic 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 postpandemic 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 postpandemic 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

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 


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45U.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). 

46See USCIS, Family Reunification Parole 

Processes (last reviewed/updated Sept. 10, 2024), 

https://www.uscis.gov/FRP. 

47See USCIS, Temporary (Nonimmigrant) 

Workers (last reviewed/updated July 24, 2024), 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-nonimmigrant-workers. 

48The 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). 

49Under 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. 

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

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

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). 

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 


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50E.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)). 

51See 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). 

52Omar v. McHugh, 646 F.3d 13, 17 (D.C. Cir. 

2011) (‘‘This multilateral treaty is non-selfexecuting and thus does not itself create any rights 

enforceable in U.S. courts.’’ (citation omitted)). 

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. 

54The 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). 

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 nonrefoulement 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). 

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). 

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. 

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[,] 


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55Section 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. 

56For 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. 

57As 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). 

. . . 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

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 noncontiguous 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. 

The Departments are implementing 

changes in this final rule that parallel 

those made in the September 27 

Proclamation. Specifically, the 

Departments are revising §§ 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 


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59Short-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. 

60See 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). 

‘‘Proclamation 10773 of June 3, 2024, as 

amended by the Presidential 

Proclamation of September 27, 2024[ ]’’ 

for the purpose of §§ 208.13(g), 208.35, 

and 235.15 (in the case of § 208.13(h)) 

and §§ 1208.13(g) and 1208.35 (in the 

case of § 1208.13(h)). The Departments 

are also making conforming changes in 

§§ 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 §§ 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-calendarday 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. 

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. 

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 


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61From 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 postIFR 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. 

62OHSS analysis of data downloaded from UIP 

on September 3, 2024 (IFR Ramp Up tab). 

63 Id. 

64 Id. 

65OHSS analysis of July 2024 Persist Dataset (IFR 

Ramp Up tab). 

66OHSS analysis of data downloaded from UIP 

on September 3, 2024 (IFR Ramp Up tab). 

67 Id. 

68 Id. 

69The 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-consecutivecalendar-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. 

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

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. 

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 postJune 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 nonSWB 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. 

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

The Departments have also 

determined that it is appropriate and 

necessary to include UCs from noncontiguous 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 childappropriate 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 timeconsuming and resource-intensive 

process must always be followed for 


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71See OHSS analysis of July 2024 OHSS Persist 

Dataset and data downloaded from UIP on 

September 3, 2024 (USBP Encounters by Fam Status 

tab). 

72See 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 noncontiguous UCs fell just 42 percent, and encounters 

of UCs overall fell just 37 percent. Id. 

73OHSS analysis of July 2024 OHSS Persist 

Dataset and data downloaded from UIP on 

September 3, 2024 (USBP Encounters by Fam status 

tab). 

74See 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. 75See OHSS analysis of data downloaded from 

UIP on September 3, 2024 (Section 2c Encounters 

tab). 76See id. 

UCs encountered at the southern border, 

regardless of whether emergency border 

circumstances are present. 

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 noncontiguous 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

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-consecutivecalendar-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. 

2. Clarifying Changes to Regulatory Text 

This final rule also makes clarifying 

changes to the regulatory text. In 

§§ 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 


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

corrections). 

78Courts 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). 

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 § 214.11 to § 214.201. See 

id. at 34931–32. 

D. Rule Provisions 

The rule contains the following key 

provisions: 

• 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. 

• 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). 

• 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. 

• 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. 

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 


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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 wellfounded 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 BringasRodriguez 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. CardozaFonseca, 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 


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(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 oneyear 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 nonrefoulement 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 nonrefoulement 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 


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79These 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, 

Continued 

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 decadesold 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 safethird-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-thirdVerDate Sep<11>2014 18:07 Oct 04, 2024 Jkt 262001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\07OCR2.SGM 07OCR2

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and thus the 2020 version of these provisions—the 

version immediately preceding the enjoined 

amendment—is currently effective. 

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). 

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-thirdcountry 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 firmresettlement 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 crossborder 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-thirdcountry 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 


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80For 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). 

81See, 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.’’). 

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 

§ 208.16 or § 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 §§ 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. 

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 


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82See 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)). 

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 nonrefoulement 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 nonrefoulement 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 nonrefoulement 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. 

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.’’ CardozaFonseca, 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, 


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83For 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). 

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. AlvarezMachain, 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 

Pre ́paratoires Analyzed with a 

Commentary by Dr. Paul Weis 219, 

https://www.unhcr.org/us/media/ 

refugee-convention-1951-travauxpreparatoires-analysed-commentary-drpaul-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 


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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. 

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 prescreening 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 nonrefoulement 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/unhcrstatement-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 selfexecuting, 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. 


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

344. 

85See Decl. of Blas Nun ̃ ez-Neto ¶ 13, E. Bay 

Sanctuary Covenant v. Biden, No. 18-cv-6810 (N.D. 

Cal. June 16, 2023) (Dkt. 176–2). 

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 nonrefoulement 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. 

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 


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86Unique 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). 

87Average 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. 

89See 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/title42-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-rushacross-u-s-border-in-final-hours-before-title-42- 

asylum-restrictions-are-lifted; Decl. of Blas Nun ̃ ezNeto ¶ 22, E. Bay Sanctuary Covenant v. Biden, No. 

18-cv-6810 (N.D. Cal. June 16, 2023) (Dkt. 176–2); 

Testimony of Blas Nun ̃ 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-NetoB20230606.pdf. 

90Total 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. 

91OHSS 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 

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 prepandemic 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

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. 

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, 


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into the United States irregularly, see Mariana 

Martı ́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/mexicomigrants-asylum-cbp-app-camps-22b49fabf6e4d7d

25d2873d0637544fe. 

92OHSS analysis of July 2024 OHSS Persist 

Dataset and data downloaded from UIP on 

September 3, 2024. (Summary Statistics tab). 

93 Id. 

94OHSS 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. 

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 postpandemic period following the end of 

the Title 42 public health Order,92 and 

41 percent in the pre-pandemic 

period.93

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. 

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 


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95See, e.g., The White House, Mexico and United 

States Strengthen Joint Humanitarian Plan on 

Migration (May 2, 2023), https://

www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/ 

(committing to addressing root causes of migration). 

96See 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-thirdministerial-meeting-on-the-los-angelesdeclarationon-migration-and-protection-inguatemala. 

97See 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/losangeles-declaration-on-migration-and-protection/. 

98 Id. 

99See Marcela X. Escobari, FPC Briefing: 

Migration Policy and the Biden-Harris 

Administration’s Root Cause Strategy (June 22, 

2023), https://www.state.gov/briefings-foreignpress-centers/migration-policy-and-the-bidenharris-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/briefingroom/statements-releases/2021/07/29/fact-sheetstrategy-to-address-the-root-causes-of-migration-incentral-america/. 

100OHSS 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). 

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. 

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. 

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 


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Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 81181 

101See 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. 

102USCIS, 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.’’). 

104OHSS 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). 

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. 

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 screenin 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 


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81182 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

105See, 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) 

106See OHSS Data Spreadsheet Data for Securing 

the Border IFR, tab 219 (June 2024), https://

www.regulations.gov/document/USCIS-2024-0006- 

0003. 

107See id.; see also OHSS analysis of June 2024 

Enforcement Lifecycle data (Historic ERCF Results 

tab). 

108Relief 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). 

109See id. 

110See id. 

111See 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-processand-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). 

112See, 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). 113See id. 

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

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

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

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 


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114See 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. 

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.’’). 

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 


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115OHSS 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. 

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 preschedule 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. 

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 


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116Press 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-dojannounce-recent-arrivals-docket-process-moreefficient-immigration (‘‘Recent Arrivals Docket 

Announcement’’). 

117Credible 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 prepandemic period; 17 days during the pandemic 

period; 12 days during the immediate postpandemic 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). 

118Parties 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 casespecific circumstances and procedural protections, 

including allowing time for noncitizens to seek 

representation where needed. See Recent Arrivals 

Docket Announcement. 

119See OHSS Data Spreadsheet, Data for Securing 

the Border IFR (June 2024), https://

www.regulations.gov/document/USCIS-2024-0006- 

0003. 

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. 

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 Darie ́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. 

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 


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120OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Summary Statistics tab and 

IFR ERCF tab). 

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 nonrefoulement 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. 

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 


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121See 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. 

123See OHSS analysis of Asylum Pre-Screening 

Officer (‘‘APSO’’) Global and OHSS Persist Datasets 

current as of June 30, 2024 (Historic CFIs tab). 

124USCIS, 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. 

125 DHS, Immigration Examinations Fee Account: 

Fee Review Supporting Documentation with 

Addendum 53 (Nov. 2023), https://

www.regulations.gov/document/USCIS-2021-0010- 

8176. 

126See 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-thepresidents-budget-secures-our-border-combatsfentanyl-trafficking-and-calls-on-congress-to-enactcritical-immigration-reform/. 

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

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. 

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 employmentbased 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 


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127See DHS, FY 2024 Budget-in-Brief 74 (2024), 

https://www.dhs.gov/publication/fy-2024-budgetbrief (last visited Sep. 3, 2024). 

128See 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/statementsreleases/2023/10/20/fact-sheet-white-house-callson-congress-to-advance-critical-national-securitypriorities/. 

129See 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-thepresidents-budget-secures-our-border-combatsfentanyl-trafficking-and-calls-on-congress-to-enactcritical-immigration-reform/. 

130See, 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/guidancemanagement-and-processing-undocumented-noncitizens-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). 

132See 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-securityfunding-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[.]’’). 

133USCIS 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 

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. 

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

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 


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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))). 

134See Decl. of Blas Nun ̃ ez-Neto ¶ 20, M.A. v. 

Mayorkas, No. 23–cv–1843 (D.D.C. Oct. 27, 2023) 

(Dkt. 53–1). 135OHSS 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. 137OHSS 2022 Yearbook of Immigration Statistics 

(OHSS YB Table 39 tab) (listing past repatriations). 138OHSS analysis of June 2024 Enforcement 

Lifecycle data (Enforcement Lifecycle 6.2024 tab). 

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. 

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

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 


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139OHSS 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. 

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. 

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 


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141See 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. 

142See OHSS analysis of USCIS Global data as of 

September 10, 2024. 

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

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 


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143OHSS analysis of July 2024 OHSS Persist 

Dataset (OFO Encounters tab). 

144See 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). 

145Courts 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. 

146Although 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’’). 

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. 

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

Contrary to commenters’ assertions, 

the rule ensures that noncitizens receive 


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147See 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. 

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). 

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 EOIRmaintained 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, 


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148See 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. 

149See 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. 

150USCIS, 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. 

151EOIR, 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). 

152See, 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. 

153EOIR, Legal Education and Research Services 

Division (last updated Jan. 3, 2020), https://

www.justice.gov/eoir/legal-education-and-researchservices-division. 

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

Noncitizens in section 240 removal 

proceedings have a wide range of wellestablished 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). 

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. 

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

(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 


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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 


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81196 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

154See, e.g., ICE, 2019 National Detention 

Standards for Non-Dedicated Facilities, Foreword 

(2019), https://www.ice.gov/detain/detentionmanagement/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/detentionmanagement/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.’’). 155See USBP, 6.4.24 USBP Field Guidance, at 4. 

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. 

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. 

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

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 attorneyclient conversations through virtual 

technology.159

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 


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160See 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). 

161See 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). 162See, 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. 163The 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.’’). 

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. 

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 


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81198 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

164See USCIS, Report USCIS Employee 

Misconduct (last reviewed/updated Mar. 15, 2024), 

https://www.uscis.gov/scams-fraud-andmisconduct/report-uscis-employee-misconduct; see 

also DHS, Make a Civil Rights Complaint (last 

updated Aug. 20, 2024), https://www.dhs.gov/filecivil-rights-complaint. 

165See 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). 

166See 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). 

167See USCIS, RAIO Directorate—Officer 

Training: Interviewing—Introduction to the NonAdversarial Interview 19–20 (Apr. 24, 2024); USCIS, 

RAIO Directorate—Officer Training: Interviewing— 

Working With An Interpreter 14, 30 (Apr. 24, 2024). 

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. 

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. 

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. 

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, errorfree 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

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 


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168See 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. 169See 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). 170USCIS, RAIO Directorate—Officer Training: 

Interviewing—Working with an Interpreter 14, 17– 

22, 24, 30, 43–44 (Apr. 24, 2024). 171USCIS, 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.’’). 

172USCIS, RAIO Directorate—Officer Training: 

Interviewing Survivors of Torture and Other Severe 

Trauma (Apr. 24, 2024). 

173USCIS, 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). 

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

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 nonadversarial manner,173 and all AOs are 


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174See, e.g., USCIS, RAIO Directorate—Officer 

Training: Interviewing—Eliciting Testimony 11–12 

(Apr. 24, 2024). 

175See 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). 

176Following issuance of this rule, the form will 

be designated I–869SB instead of I–869SBIFR. 

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. 

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). 

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 


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177See USCIS, Report USCIS Employee 

Misconduct (last reviewed/updated Mar. 15, 2024), 

https://www.uscis.gov/scams-fraud-andmisconduct/report-uscis-employee-misconduct; see 

also DHS, Make a Civil Rights Complaint (last 

updated Aug. 20, 2024), https://www.dhs.gov/filecivil-rights-complaint. 

178For 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). 179See USCIS, RAIO Directorate—Officer 

Training: Definition of Persecution and Eligibility 

Based on Past Persecution 56–57 (Apr. 24, 2024). 

180See 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 

Continued 

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 illequipped 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. 

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 


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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-researchservices-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.’’). 

181USCIS, 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. 

182OHSS analysis of data pulled from CBP UIP 

on September 3, 2024 (Fear Screening—STB tab). 

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. 

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. 

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

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 nonmeritorious cases under the higher 

‘‘reasonable possibility’’ standard in the 


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183OHSS 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). 

184OHSS 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). 

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. 186To 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. 

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. 

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. 

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. 

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 


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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 


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187See 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). 

188See 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, Proteccio ́n 

Complementaria y Asilo Polı ́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). 

190USCIS, RAIO Directorate—Officer Training: 

Gender-Related Claims (Apr. 24, 2024). 

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

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 


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191E.g., id. at 15–20, 42. 

192USCIS, RAIO Directorate—Officer Training: 

Guidance for Adjudicating Lesbian, Gay, Bisexual, 

Transgender, and Intersex (LGBTI) Refugee and 

Asylum Claims (Apr. 24, 2024). 

193E.g., id. at 18–19, 27–34. 

194 Id. at 28–30, 37–38, 49. 

195 Id. at 43–44, 50. 

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. 

197See 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-plan2020.pdf. 

198See 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-accessmaterials. 

199See CBP, CBP OneTM 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 OneTM mobile application is FREE and 

available to everyone who has access to a mobile 

device’’). 

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

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

Comment: Commenters stated that 

many immigrants today are Punjabispeaking 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 languagebarrier 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. 

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 


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200Even 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.’’). 

201See, e.g., CBP, CBP OneTM Mobile Application 

(last modified Sept. 23, 2024), https://www.cbp.gov/ 

about/mobile-apps-directory/cbpone. 202See 89 FR at 48729–30. 

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. 

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

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 legalservice 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 legalservice 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. 

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. 


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203U.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-toCongress_FINAL-Accessible-11.02.2023.pdf. 

204OHSS analysis of June 2024 Enforcement 

Lifecycle data and data downloaded from UIP on 

September 3, 2024 (Summary Statistics tab). 

205See OHSS analysis of EOIR data as of July 

2024 (Mean EOIR Filed Dates tab). 

206The 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/factsheet-biden-harris-administration-calls-oncongress-to-immediately-pass-the-bipartisannational-security-agreement/. 

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. 

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’’). 

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. 


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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. 

208Stephen 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-senatevote-924f48912eecf1dc544dc648d757c3fe. 

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. 

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 asylumrelated 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, 


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209See, e.g., The White House, Mexico and 

United States Strengthen Joint Humanitarian Plan 

on Migration (May 2, 2023), https://

www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/ 

(describing the commitment of the United States 

and Mexico to addressing root causes of migration). 

210See 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-thirdministerial-meeting-on-the-los-angelesdeclarationon-migration-and-protection-inguatemala. 

211Am. 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-presidents212f-proclamation-and-interim-final-rule. 

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. 

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-amole, 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. 

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 


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212See, 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-immigrationasylum-border.html. 

213See 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-bordersecurity-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/fy2022-root-causes-strategy-results (last visited Sept. 

15, 2024). 

214See, e.g., The White House, Mexico and 

United States Strengthen Joint Humanitarian Plan 

on Migration (May 2, 2023), https://

www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/ 

(describing the commitment of the United States 

and Mexico to addressing root causes of migration). 

215See 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-thirdministerial-meeting-on-the-los-angelesdeclarationon-migration-and-protection-inguatemala. 

216See, 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-alejandromayorkas.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’’). 

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. 

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. 

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 


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217U.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-bidenharris-administration-on-world-refugee-daycelebrates-a-rebuilt-u-s-refugee-admissionsprogram/. 

218U.S. Dep’t of State, Worldwide Visa 

Operations: Update, https://travel.state.gov/ 

content/travel/en/News/visas-news/worldwide-visaoperations-update.html (last updated Jan. 2, 2024). 

219U.S. Dep’t of State, Nonimmigrant Visa 

Statistics, https://travel.state.gov/content/travel/en/ 

legal/visa-law0/visa-statistics/nonimmigrant-visastatistics.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). 

221USCIS, 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. 

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: 

• The CHNV parole processes, which 

allow individuals with U.S.-based 

supporters to seek parole on a case-bycase basis for urgent humanitarian 

reasons or significant public benefit; 

• 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

• The expansion of country-specific 

family reunification parole processes for 

individuals in the region who have U.S. 

citizen relatives in the United States; 

• Increasing proposed refugee 

admissions from the Western 

Hemisphere from 5,000 in FY 2021 to 

up to 50,000 in FY 2024; and 

• 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 employmentbased 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

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 


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222OHSS analysis data downloaded from UIP on 

September 3, 2024 (IFR Details tab). 

223OHSS analysis of July 2024 Persist Dataset 

(OFO Encounters tab). 

224OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(OFO Encounters tab). 

225 Id. 

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

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 decisionmaking 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 oftenperilous 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 ‘‘selfseparate.’’ Rather, in the time since the 


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226See 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. 

227Memorandum 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). 

IFR took effect, average daily encounters 

of UCs at the SWB have actually 

decreased by 37 percent.226

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 safethird-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. 

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 preVerDate Sep<11>2014 18:07 Oct 04, 2024 Jkt 262001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\07OCR2.SGM 07OCR2

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228See 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 OneTM 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.’’). 

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 prescheduled 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 nonrefoulement 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

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 


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229OHSS analysis of June 2024 Enforcement 

Lifecycle data (Fear Screening—CLP tab). 

230 Id. 

231 Id. 

232See id. 

233See OHSS analysis of June 2024 Enforcement 

Lifecycle data (Fear Screening—STB tab). 

234See CBP, CBP OneTM Mobile Application (last 

modified Sept. 23, 2024), https://www.cbp.gov/ 

about/mobile-apps-directory/cbpone. 

235See 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. 

236See 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. 

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

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. 

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. 

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. 

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 


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237See, 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-processingnon-citizens-swb-lpoes-signed-Memo-11.1.2021- 

508.pdf; 89 FR at 48737. 

238See OHSS analysis of July 2024 Persist Dataset 

(OFO Encounters tab). 

239See id. 

240See OHSS analysis of July 2024 Persist Dataset 

(Encounters FY 2000–2024 tab). 

241See, 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-processingnon-citizens-swb-lpoes-signed-Memo-11.1.2021- 

508.pdf. 

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

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 


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242See, e.g., id. 

243See, 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-manyfrom-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-recordmigrant-encounters-us-mexico-border. 

244See CBP, CBP OneTM Mobile Application (last 

modified Sept. 23, 2024), https://www.cbp.gov/ 

about/mobile-apps-directory/cbpone. 

245See id. 

246Amnesty 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-onemobile-application-violates-the-rights-of-peopleseeking-asylum-in-the-united-states/. 

resources, including infrastructure and 

personnel.242

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. 

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. 

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. 

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 


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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. 


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247See CBP, CBP OneTM Mobile Application, 

Frequently Asked Questions—English (last 

modified Sept. 19, 2024), https://www.cbp.gov/ 

about/mobile-apps-directory/cbpone. 

248See CBP, CBP OneTM Application Update 

Announcement—English (Mar. 1, 2024), https://

www.cbp.gov/document/guidance/cbp-oneapplication-update-announcement-english. 

249See 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). 

251See CBP, CBP OneTM Mobile Application (last 

modified Sept. 23, 2024), https://www.cbp.gov/ 

about/mobile-apps-directory/cbpone. 

252See U.S. General Servs. Admin., Login.gov, 

https://login.gov/ (last visited Aug. 10, 2024). 

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. 

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. 

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. 

CBP engages frequently with 

stakeholders to determine further 

updates and changes in the app that 

improve the users’ experience and 


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253See CBP, CBP OneTM Mobile Application, 

Frequently Asked Questions—English, CBP OneTM

Mobile Application, ‘‘What if someone asks me to 

pay for an appointment?’’ (last modified Sept. 23, 

2024), https://www.cbp.gov/about/mobile-appsdirectory/cbpone. 

254See 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/privacypia-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-cbp068%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-forundocumented-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-collectionappendix-update.pdf. 

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

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/mobileapps-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. 

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. 


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255See OHSS analysis of data downloaded from 

UIP on September 3, 2024 (Fear Screening—STB 

tab). 

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. 

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 


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256Separately, 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. 

257See OHSS analysis of data downloaded from 

UIP on September 3, 2024 (Fear Screening—STB 

tab). 

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 factintensive 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 nonadversarial 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

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 


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258See, 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.’’). 

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 crossexamine the [noncitizen] and any 

witnesses.’’); 8 CFR 1003.10(b) (same); 

see also Quintero v. Garland, 998 F.3d 

612, 626 (4th Cir. 2021). 

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 nonrefoulement. 

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). 


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259See OHSS analysis of June 2024 Enforcement 

Lifecycle data (Fear Screening—CLP tab). 

260See OHHS analysis of data downloaded from 

UIP on September 3, 2024 (Fear Screening—STB 

tab). 

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 situationspecific 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

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 


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261See USCIS, RAIO Directorate—Officer 

Training: Detecting Possible Victims of Trafficking 

(Apr. 24, 2024) 

262See 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-educationand-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.’’). 

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, timesensitive 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. 

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 


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263The 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. 

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. 

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 


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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 


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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, 


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264See DHS, Securing the Border: Presidential 

Proclamation and Rule (Aug. 6, 2024), https://

www.dhs.gov/immigration laws. 

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 wellequipped 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) (oneyear 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-consecutivecalendar-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. 

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 


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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, 


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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 


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265See 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-determiningrefugee-status-under-1951-convention-and-1967 

(highlighting that the process for identifying 

refugees is not ‘‘specifically regulated’’). 

266 Id. 

267The 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. 

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’ nonrefoulement 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. 

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 


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268See 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)). 

269Accord 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’’). 

270See 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. 

271That explanation will be translated into 

certain common languages or will be read to the 

noncitizen if required. 89 FR at 48741 n.194. 

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. 

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

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. 

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 


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Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 81235 

272See OHSS analysis of data downloaded from 

UIP on September 3, 2024 (IFR ERCF tab). 

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

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 


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81236 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

273See 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). 

274See id. at 3. 

275 Id. 

276 Id. 

277See 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). 

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

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, nontransparent, 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 


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Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 81237 

278See, 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-fearborder-lessons-title-42-expulsions. 

279See, e.g., id. 

280See OHSS analysis of data downloaded from 

UIP on September 3, 2024 (IFR ERCF tab). 

281See id.; see also CBP, Off. of Field Operations, 

Muster, Documenting Noncitizen Asylum or Fear 

Claims or Fear Manifestations (July 18, 2024). 

282See Memorandum for Dirs., Field Operations, 

& Dir., Preclearance Operations, Off. of Field 

Operations, from Acting Exec. Dir., Admissibility & 

Passenger Programs, Off. of Field Operations, CBP, 

Continued 

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. 

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. 

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

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, nonverbally, 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 selfharm; 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


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81238 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

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). 

283See, e.g., INA 235(a)(3), 8 U.S.C. 1225(a)(3); 8 

CFR 235.1; 8 CFR 235.3(a). 

284See CBP, Securing the Border IFR and 

Presidential Proclamation CBP Manifesting Fear 

Guidance. 

285See 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-fearborder-lessons-title-42-expulsions. 

286See, 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). 

287See 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 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 illequipped 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. 

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 nonverbal manifestations, some of which 

may be unconscious by the noncitizen. 

The Departments acknowledge a twopage 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. 

The Departments disagree with 

commenters’ implicit suggestion that 

the implementation of the IFR is 

substantially similar to the 


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288See OHSS analysis of data downloaded from 

UIP on September 3, 2024 (Summary Statistics tab). 

289CBP, National Standards on Transport, Escort, 

Detention, and Search (TEDS) 4.6, at 16 (Oct. 2015), 

https://www.cbp.gov/document/directives/cbpnational-standards-transport-escort-detention-andsearch. 

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. 

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. 

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 


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290As 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. 

291As 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. 

292CBP 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/professionalresponsibility (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: JointIntake@cbp.dhs.gov, 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: ICEOPRIntake@ice.dhs.gov, 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-civilrights-and-civil-liberties (last visited Sept. 21, 2024). 

293OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Summary Statistics tab). 

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

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. 

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

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 


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294See 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/barriersprotection-treatment-asylum-seekers-expeditedremoval. 

295See 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). 

296See 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). 

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-eiddecember2018.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.’’). 

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. 

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 

Continued 

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. 

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. 

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

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

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


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81242 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

(Dec. 3, 2018), https://www.dhs.gov/sites/default/ 

files/publications/privacy-pia-ice-eiddecember2018.pdf. 

304See 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). 

305See 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). 

306See, 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’’). 

307See, 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-plan2020.pdf. 

308See, 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-plan2020.pdf. 

309See, 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-plan2020.pdf. 

310See 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. 

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. 

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 


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311See 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-plan2020.pdf. 

312See 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. 

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 commonlyspoken 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. 

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 nonconfidential 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. 

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 


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81244 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

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. . . .’’). 315See CBP, Supplementary Language Access 

Plan: Fiscal Years 2020–2021, at 6 (Feb. 7, 2020), 

https://www.cbp.gov/about/language-access. 316See 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-customsand-border-protection-offices?language=pt. 

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. 

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

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 


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317See 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.’’). 

318Memorandum 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. 

322See, 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. 

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. 

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’ 

(Quiche ́)/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’ (Quiche ́)/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

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, 


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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 


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327See USCIS, RAIO Directorate—Officer 

Training: Interviewing—Introduction to the NonAdversarial 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). 

328See, e.g., USCIS, RAIO Directorate—Officer 

Training: Interviewing—Working with an Interpreter 

(Apr. 24, 2024); USCIS, RAIO Directorate—CrossCultural Communication and Other Factors That 

May Impede Communication at an Interview (Apr. 

24, 2024). 

329See 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-educationand-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.’’). 

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 nonadversarial 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. 

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 nondetained 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 nonadversarial 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). 

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 


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330See, 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. 

331See 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. 

332See 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. 

333See OHSS analysis of June 2024 Enforcement 

Lifecycle data and data downloaded from UIP on 

September 3, 2024 (IFR ERCF tab and Imm PostPandemic ERCF tab). During the immediate postpandemic 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. 

334See DHS, Securing the Border: Presidential 

Proclamation and Rule (Aug. 6, 2024), https://

www.dhs.gov/immigrationlaws. 

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. 

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

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

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

For comparison, under the 

Circumvention of Lawful Pathways rule, 


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335See, 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. 336See id. 337See id. 

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. 

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 nonexigent circumstances.’’ Id. Similarly, as 

explained in the IFR and this rule, prior 

to implementation of the IFR, migration 


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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 nonmeritorious 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 ‘‘commonsense 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 nonrefoulement obligations because the 

United States implements its nonrefoulement obligations under Article 

33 of the Refugee Convention (via the 

Refugee Protocol) through the statutory 


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338See CBP, CBP OneTM Mobile Application: 

Recent Updates (last modified Sept. 23, 2024), 

https://www.cbp.gov/about/mobile-apps-directory/ 

cbpone. 

339See id. 

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

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 


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340See OHSS analysis of July 2024 Persist Dataset 

(USPB Encounters by Citizenship tab). 341See id. 

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. 

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. 

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– 


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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 nonrefoulement 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’ nonrefoulement 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 


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342The 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). 

343See Asylum Processing IFR, 87 FR at 18132; 

see also 88 FR at 31419. 

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. 

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

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 


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344Although 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 

Continued 

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 caseby-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 largescale 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 


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data downloaded from UIP on September 3, 2024 

(Summary Statistics tab, see cells L27 and M27). 

345See OHSS analysis of July 2024 Persist Dataset 

and data downloaded from UIP on September 3, 

2024 (USBP Encounters by Fam Status tab). 

346See id. 

347See 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). 

348OHSS 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). 

349OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(CLP v pre-CLP Proj Outcomes tab). 

350 Id. 

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. 

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 noncontiguous 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 noncontiguous 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

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

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

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

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 


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351Average 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). 

352Consistent 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). 

353Consistent 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). 

354OHSS analysis of July 2024 Persist Dataset 

(Encounters FY 2000–2024 tab). 

355OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Section 2c Encounters Tab). 356 Id. 

357See 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). 

358See, 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. 

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. 

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

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 noncontiguous 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 noncontiguous 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 noncontiguous 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. 

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. 


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359CBP, Southwest Land Border Encounters (last 

modified Sept. 16, 2024), https://www.cbp.gov/ 

newsroom/stats/southwest-land-border-encounters. 

360See CBP, CBP OneTM 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, nonMexican 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. 

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. 

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) 


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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. 

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 consecutivecalendar-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 


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361See U.S. Department of State, U.S. 

Government Response to Migration in the Americas 

(Nov. 17, 2023), https://www.state.gov/briefingsforeign-press-centers/us-government-response-tomigration-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-preventirregular-unlawful-maritime-migration-to-united/. 

362See U.S. Department of State, U.S. 

Government Response to Migration in the Americas 

(Nov. 17, 2023), https://www.state.gov/briefingsforeign-press-centers/us-government-response-tomigration-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-irregularunlawful-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/factsheet-additional-sweeping-measures-humanelymanage-border. 

363See 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-andsecretary-of-homeland-security-alejandromayorkas-opening-remarks-at-the-ministerialconference-on-migration-and-protection-reception/. 

364See U.S. Department of State, U.S. 

Government Response to Migration in the Americas 

(Nov. 17, 2023), https://www.state.gov/briefingsforeign-press-centers/us-government-response-tomigration-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/PressReleases/Article/3739500/task-force-continues-toprevent-irregular-unlawful-maritime-migration-tounited/. 

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 preexisting 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 § 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 


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365See Ecuador Envivo, La tragedia detra ́ s de la 

migracio ́n irregular, una desgarradora realidad 

(The tragedy behind irregular migration, a 

heartbreaking reality) (July 31, 2024), https://

ecuadorenvivo.com/blog/2024/07/31/la-tragediahumana-detras-de-la-migracion-expertos-analizancrisis-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-unitremoval-flights-aug-9-0. 

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-useclassified-information-immigration-proceedings. 

367The 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-useclassified-information-immigration-proceedingsoctober. 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-classifiedinformation-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. 

coming to the United States 

irregularly.365

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

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. 

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 


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368See The White House, Joint Statement by the 

President of the United States Joe Biden and the 

President of Mexico Andre ́s Manuel Lo ́pez Obrador 

(Apr. 29, 2024), https://www.whitehouse.gov/ 

briefing-room/statements-releases/2024/04/29/jointstatement-by-the-president-of-the-united-states-joebiden-and-the-president-of-mexico-andres-manuellopez-obrador; see also Kathia Martı ́nez, US, 

Panama, and Colombia aim to stop Darien Gap 

migration, AP News (Apr. 11, 2023), https://

apnews.com/article/darien-gap-panama-colombiaus-migrants-cf0cd1e9de2119208c9af186e53e09b7. 

369See Los Angeles Declaration on Migration and 

Protection, Endorsing Countries, https://losangeles

declaration.com/endorsing-countries (last visited 

Aug. 2, 2024). 

370See 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). 

371See 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-AsylumSystem

InCrisis-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.’’). 

372The 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-jointhumanitarian-plan-on-migration/. 

373The White House, Joint Statement by the 

President of the United States Joe Biden and the 

President of Mexico Andre ́s Manuel Lo ́pez Obrador 

(Apr. 29, 2024), https://www.whitehouse.gov/ 

briefing-room/statements-releases/2024/04/29/jointstatement-by-the-president-of-the-united-states-joebiden-and-the-president-of-mexico-andres-manuellopez-obrador. 

374See 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 OneTM Appointments Increased to 

1,450 Per Day (June 30, 2023), https://www.cbp.gov/ 

newsroom/national-media-release/cbp-oneappointments-increased-1450-day; Decl. of Blas 

Nun ̃ ez-Neto ¶ 9, E. Bay Sanctuary Covenant v. 

Biden, No. 4:18–cv–06810–JST (N.D. Cal. June 16, 

2023) (Dkt. 176–2). 

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

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 Darie ́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. 

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. 

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 Lo ́pezObrador 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. 

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 


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375See 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). 

376See, e.g., The White House, Mexico and 

United States Strengthen Joint Humanitarian Plan 

on Migration (May 2, 2023), https://

www.whitehouse.gov/briefing-room/statementsreleases/2023/05/02/mexico-and-united-statesstrengthen-joint-humanitarian-plan-on-migration/. 

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). 

379See 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 § 553, as when 

a safety investigation shows that a new safety rule 

must be put in place immediately’’ (cleaned up)). 

380See, 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 

. . . .’’). 

381There were approximately 250,000 USBP 

encounters along the SWB in December 2023, 

higher than any previous month on record, see 

Continued 

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. 

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 noticeand-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

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 


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OHSS analysis of July 2024 Persist Dataset 

(Encounters FY 2000–2024 tab). 

382EOIR 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/strategiccontext/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 DHSDetained 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). 

383Miriam 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-immigrationasylum-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. 

384See, 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 

§ 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.’’). 

385See, 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)). 

386See, 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.’’). 

387See 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 

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. 

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. 

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

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


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to immediately enter the United States, creating a 

severe safety hazard that forced CBP to temporarily 

close POEs in whole or in part). 

388See 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-11e8-8f4baee063e14538_story.html. 

389Omnipoint Corp. v. FCC, 78 F.3d 620, 630 

(D.C. Cir. 1996) (cleaned up). 

390See 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. 

393The 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. 

394See 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.’’). 

395Eliminating 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). 

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. 

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. 

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. 

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. 

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

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. 


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398 Document Comments, Securing the Border, 

https://www.regulations.gov/document/USCIS2024-0006-0002/comment. 

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 postpromulgation 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

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 


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399Nat’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. 

400The 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-updateon-the-u-s-strategy-for-addressing-the-root-causesof-migration-in-central-america-3/. 

401 Id. 

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

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 Darie ́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 securityrelated 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. 


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402See 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). 

403See 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/CBPmgmt-processing-non-citizens-swb-lpoes-signedMemo-11.1.2021-508.pdf. 

404See 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-andshelter-program-national-board-allocates-75- 

million. 

405Public 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). 

406FEMA, Shelter and Services Program (June 14, 

2024), https://www.fema.gov/grants/shelterservices-program. 

407 Id. 

408See 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. 

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. 

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

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

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. 

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 


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409See 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-bordersecurity-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). 

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. 

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. 


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410OHSS analysis of July 2024 Persist Dataset 

(Imm Post Pandemic ERCF tab). 

411OHSS 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). 

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, nongovernmental, 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: 


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412OHSS analysis of data downloaded from UIP 

on September 3, 2024 (IFR details tab). 

413OHSS analysis of data downloaded from UIP 

on September 3, 2024 (Flights and Removals tab). 

414OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

415 Id. 

416 Id. 

417See CBP, CBP OneTM Mobile Application (last 

modified Sept. 23, 2024), https://www.cbp.gov/ 

about/mobile-apps-directory/cbpone. 

• DHS removed or returned more 

than 119,000 individuals encountered at 

the SWB412 to more than 140 countries, 

including by operating more than 400 

international repatriation flights; 413

• 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

• 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 

• 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

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. 


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418Although 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. 

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 courtappointed 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 ‘‘noncustodial 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 drugrelated 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. 

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 


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419The Departments also reiterate the explanation 

of the dangers of maritime migration in the 

Circumvention of Lawful Pathways rule. See 88 FR 

at 31441–42. 

420See 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-firehaiti-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-liveupdates-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-morethan-180-people-overloaded-sailboat-florida-keys/. 

421USCG, 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/PressReleases/Article/3758973/coast-guard-repatriates119-migrants-to-dominican-republic-following-2- 

interdic/. 

422OHSS analysis of July 2024 Persist Dataset 

(Maritime Interdictions tab). 

423 Id. 

424USCG, 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. 

425USCG, Press Release: Coast Guard repatriates 

27 people to Cuba (Aug. 5, 2023), https://

www.news.uscg.mil/Press-Releases/Article/ 

Continued 

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 lifethreatening 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 


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3484466/coast-guard-repatriates-27-people-tocuba/. 

426USCG, 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-tohaiti/. 

427USCG, 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. 

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. 

430See 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. 

431See 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-bordersecurity-reduce-irregular-migration-and. 

432See DHS, DHS Modernizes Cuban and Haitian 

Family Reunification Parole Processes (Aug. 10, 

2023), https://www.dhs.gov/news/2023/08/10/dhsmodernizes-cuban-and-haitian-familyreunification-parole-processes. 

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

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. 

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; countryspecific 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. 

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 twoyear ‘‘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 


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433Between 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. 

434Assuming 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. 

435After 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. 

436OHSS 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. 

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

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 fearclaim and comprehensive screen-in 

rates that existed during the prepandemic 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 


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439See 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-bordersecurity-reduce-irregular-migration-and. 

440See Las Americas Immigrant Advocacy Ctr. v. 

DHS, No. 1:24–cv–1702–RC (D.D.C. filed June 12, 

2024). 

441See 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). 

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. 

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 decisionmaking 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. 

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. 

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: 

• 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; 

• 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; 


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442There is also good cause to forgo notice and 

comment on the rule’s updates to the crossreference 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 

‘‘§ 214.11’’ to ‘‘§ 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). 

443See 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-sheetpresident-bidens-presidential-proclamation-andjoint-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/borderimmigration-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-bidenasylum-mexico-immigration-6e302f06f567b96d88

cc1333aa6d10fe. 

444See 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-11e8-8f4baee063e14538_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-bordertitle-42-mexico-asylum-8c239766c2cb6e257

c0220413b8e9cf9 (‘‘Even as migrants were racing to 

reach U.S. soil before the rules expire, Mexican 

President Andre ́s Manuel Lo ́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.’’). 

• Amendments to the grounds for 

necessarily rebutting the rebuttable 

presumption; 

• Amendments to the exceptions to 

the rebuttable presumption; and 

• 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. 

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-calendarday 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

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 


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445For 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. 

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. 

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 oneoff 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. 

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-daterequirement—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. 


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446The 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/wpcontent/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 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. 

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 withoutIFR 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 


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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. 

448As 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). 

449As 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. 

450OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

451OHSS analysis of July 2024 Persist Dataset 

(Imm Post Pandemic ERCF tab). 

452OHSS analysis of data downloaded from UIP 

on September 3, 2024 (IFR ERCF tab). 

453OHSS analysis of July 2024 Persist Dataset and 

data downloaded from UIP on September 3, 2024 

(Summary Statistics tab). 

454 Id. (showing both reduced rates of fear claims/ 

fear manifestation and reduced time from encounter 

to negative fear removals). 

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-consecutivecalendar-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-consecutivecalendar-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: 

• Whether the Circumvention of 

Lawful Pathways rule would apply at 

the time of the discontinuation; 447

• 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

• Whether, in the absence of a 

discontinuation, such rates would 

continue to resemble those observed 

from June 5, 2024, through August 31, 

2024; 

• 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 securityrelated push factors, responses to policy 

changes such as the discontinuation 

itself, and rapidly evolving criminal 

smuggling networks; 

• Available processing resources; 

• Tactical changes by smugglers and 

migrants; 

• Misinformation, disinformation, or 

malinformation generated by smugglers 

and circulating online among migrant 

communities; and 

• 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

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

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 


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455OHSS 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. 

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 selfreinforcing: 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. 

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

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 


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81282 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

458See 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)] × 100 = [(304.702 ¥ 152.383) ÷ 

152.383] = (152.319/152.383) = 0.99958001 × 100 = 

99.96 percent = 100 percent (rounded). Calculation 

of inflation-adjusted value: $100 million in 1995 

dollars × 2.00 = $200 million in 2023 dollars. 

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

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 


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Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 81283 

459The 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. 

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 foreignbased 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. 

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: 

• 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. 

• 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 


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81284 Federal Register / Vol. 89, No. 194 / Monday, October 7, 2024 / Rules and Regulations 

460See Instruction Manual 023–01–001–01, at V– 

5. 

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. 

• 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). 

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 

■ 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. 

■ 2. Amend § 208.13 by revising 

paragraph (g) and adding paragraph (h) 

to read as follows: 

§ 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 § 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. 

§ 208.33 [Amended] 

■ 3. Amend § 208.33 by removing the 

reference to ‘‘§ 214.11(a)’’ in paragraph 

(a)(3)(i)(C) and adding in its place 

‘‘§ 214.201. 

■ 4. Amend § 208.35 by: 

■ a. Removing the reference to 

‘‘§ 214.11’’ in paragraph (a)(2)(i)(C) and 

adding in its place ‘‘§ 214.201’’; 

■ b. Revising paragraph (b)(2)(i); and 

■ 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: 

§ 208.35 Limitation on asylum eligibility 

and credible fear procedures for those who 

enter the United States during emergency 

border circumstances. 

* * * * * 

(b) * * * 

(2) * * * 


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

■ 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). 

§ 235.15 [Amended] 

■ 6. Amend § 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 

■ 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. 

■ 8. Amend § 1208.13 by revising 

paragraph (g) and adding paragraph (h) 

to read as follows: 

§ 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 § 1208.35. 

(h) References to the Presidential 

Proclamation of June 3, 2024. For 

purposes of paragraph (g) of this section 

and § 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. 

§ 1208.33 [Amended] 

■ 9. Amend § 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’’. 

■ 10. Amend § 1208.35 by: 

■ a. Removing the reference to 

‘‘§ 214.11(a)’’ in paragraph (a)(2)(i)(C) 

and adding in its place ‘‘§ 214.201’’; 

■ b. Revising paragraph (b)(2)(iii); 

■ c. Removing the words ‘‘An alien’’ 

and adding in their place the words ‘‘A 

noncitizen’’, wherever they appear; 

■ d. Removing the words ‘‘the alien’’ 

and adding in their place the words ‘‘the 

noncitizen’’, wherever they appear; 

■ e. Removing the words ‘‘the alien’s’’ 

and adding in their place the words ‘‘the 

noncitizen’s’’, wherever they appear; 

■ f. Removing the words ‘‘an alien’’ and 

adding in their place the words ‘‘a 

noncitizen’’, wherever they appear; 

■ g. Removing the words ‘‘The alien’’ 

and adding in their place the words 

‘‘The noncitizen’’, wherever they 

appear; and 

■ 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: 

§ 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 § 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 


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